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PLAINTIFF PEDESTRIAN WAS IN THE CROSSWALK WHEN PLAINTIFF’S CAR MADE A LEFT TURN AND STRUCK PLAINTIFF FROM BEHIND; PLAINTIFF WAS NOT COMPARATIVELY NEGLIGENT FOR FAILING TO SEE DEFENDANT’S CAR; PLAINTIFF WAS ENTITLED TO SUMMARY JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff pedestrian was entitled to summary judgment in this traffic accident case. Plaintiff was in the crosswalk when defendant made left turn and struck plaintiff from behind. Plaintiff could not be held comparatively negligent for failing to see and avoid the defendant‘s vehicle:

Plaintiff pedestrian established prima facie entitlement to judgment on liability as a matter of law by submitting evidence demonstrating that she was crossing Broadway, within the crosswalk, with a “walk” sign in her favor, after looking both ways, when defendant’s vehicle, which was making a left turn onto Broadway, struck her from behind on her right side, pinning and dragging plaintiff under the vehicle and causing severe injuries to her right leg … . Plaintiff’s version of the accident is supported by the police report showing damage solely to the front driver side of the defendant’s vehicle following the accident and the medical reports and photographs showing the injuries to plaintiff’s right leg.

A plaintiff, who is struck by a vehicle that approaches from behind and to the right after turning left into the crosswalk where it struck plaintiff, may not be held comparatively negligent based on a theory that she could have seen and avoided the vehicle through the exercise of ordinary care … Shin v Ljulja, 2023 NY Slip Op 04740, First Dept 9-26-23

Practice Point: Plaintiff pedestrian in a crosswalk was not comparatively negligent for not seeing defendant’s car making a left turn and striking plaintiff from behind.

 

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