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QUESTION OF FACT WHETHER DEFENDANT DRIVER, WHO ALLEGEDLY MADE A TURN IN FRONT OF PLAINTIFF BICYCLIST, SAW WHAT WAS THERE TO BE SEEN (SECOND DEPT). ​

The Second Department, reversing Supreme Court, determined there was a question of fact whether defendant driver saw what was there to be seen in this bicycle-vehicle accident. Plaintiff bicyclist alleged he was halfway across the road in a crosswalk when defendant made a sudden turn into his path:

“Pursuant to Vehicle and Traffic Law § 1231, a person riding a bicycle upon a roadway shall be granted all of the rights and shall be subject to all of the duties applicable to the driver of a vehicle. A bicyclist is required to use reasonable care for his or her own safety, to keep a reasonably vigilant lookout for vehicles, and to avoid placing himself or herself into a dangerous position” … . Pursuant to Vehicle and Traffic Law § 1146(a), motorists must “exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal” on the roadway and to “give warning by sounding the horn when necessary” … . A motorist also has a “common-law duty to see that which he [or she] should have seen through the proper use of his [or her] senses” … .

… T]he defendant … failed to establish … that his conduct was not a proximate cause of the accident. The defendant testified at his deposition that he slowly made his turn, and that he did not see the plaintiff prior to the impact. The plaintiff testified at his deposition that he saw the defendant’s vehicle make a sudden right turn in front of him one second prior to the impact. Thus, the defendant’s own submissions raised triable issues of fact as to whether the defendant failed to see what was there to be seen through the proper use of his senses … . Khalil v Garcia-Olea, 2023 NY Slip Op 06517, Second Dept 12-20-23

Practice Point: A driver is expected to see what is there to be seen. Here it was alleged defendant driver made a turn into the path of plaintiff bicyclist. Defendant driver’s motion for summary judgment should not have been granted.

 

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