A common accident scenario involves a car pulling out of a parking spot and striking another car while it is driving past. If you represent the driver of the struck car you may be entitled to a finding of liability as a matter of law. Of course, any time you can secure a liability finding in advance of trial through a motion for summary judgment, your bargaining and trial position is greatly improved.
Assume your case involves an accident which occurred when the defendant driver without warning, pulled abruptly out of a parking spot and struck the side of plaintiff’s vehicle. If there are no true factual disputes as to the accident scenario, a determination of liability may be made by the court as a matter of law. The defendant driver may be solely responsible for the accident if he entered the roadway without looking to check for oncoming traffic. Moreover, if he claims to have checked for traffic, then he is responsible for not seeing it and proceeding into the roadway. Either way, the liability scenario is bad for the defendant and one may argue there was nothing plaintiff could have done to avoid this collision, particularly if she had already driven past the defendant when he turned his car into the middle or rear portion of her vehicle. Plaintiff’s own actions, one may argue, were not a factor in the happening of this accident and summary judgment should be granted against the defendants on the issue of liability.
In the seminal case of Andre v. Pomeroy, 35 N.Y.2d 361, 362 N.Y.S.2d 131 (1974), the Court of Appeals recognized that summary judgment was appropriate in a motor vehicle accident cases where there was no viable question as to liability. In Pomeroy, the defendant was driving in heavy traffic, looked away from the road to get something out of her purse and crashed into the car in front of her, injuring its passenger. The lower courts denied the plaintiff passenger’s motion for summary judgment. In reversing the denial of summary judgment, the Court of Appeals held:
“Since it [summary judgment] deprives the litigant of his day in court it is considered a drastic remedy which should only be employed when there is no doubt as to the absence of triable issues (Millerton Agway Co-op v. Briarcliff Farms, 17 N.Y.2d 57, 268 N.Y.S.2d 18). But when there is no genuine issue to be resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims properly adjudicated.”
Id., 362 N.Y.S.2d at 133 [emphasis added].
In the above scenario, there is likewise no genuine issue as to the negligence of the defendant driver. He pulled his car directly into oncoming traffic without first looking to see if such a move could be executed safely, in direct contravention of the statute governing such movements. See, VTL ¶ 1162 (“No person shall move a vehicle which is stopped, standing or parked unless such movement can be made with reasonable safety.”) [emphasis added]. Furthermore, drivers also have a common law duty to see “that which ought to be seen”. See, e.g., Terrel v. Kissel, 116 A.D.2d 637 (2nd Dep’t 1986). Failure to do so is negligence as a matter of law. See, e.g., Breslin v. Rudden, 191 A.D.2d 471 (2nd Dep’t 2002). It is clear that the defendant’s negligent actions were the sole and direct cause of the instant action.
In Calandra v. Dishotsky, 244 A.D.2d 376 (2nd Dep’t 1997), a case on point, the defendant driver also pulled out of a parking spot and into a lane of moving traffic, striking plaintiff’s vehicle. The plaintiff therein moved for partial summary judgment on the issue of liability, which the trial court granted and the Appellate Division upheld. Id. The Court found that the defendant driver, under those factual circumstances, could not “create a triable issue of fact as to liability”. Id. at 377. See, also, White v. Gooding, 21 A.D.3d 485 (2nd Dep’t 2005) (summary judgment appropriate where defendant driver pulled out into a lane of traffic without first ascertaining the traffic conditions and struck the plaintiff; thus defendant could not present a triable issue of fact despite her unsupported allegations that plaintiff could have taken some “unspecified action to avoid the accident or that he somehow contributed to its cause”); Irwin v. Mucha, 154 A.D.2d 895 (4th Dep’t 1989) (plaintiff entitled to summary judgment on issue of liability where defendant driver moved his car forward when it was not safe to do so in violation of VTL ¶1162, and thus struck plaintiff).
Moreover, there is no valid argument to be made that plaintiff shared any comparative fault in the accident, particularly if plaintiff had already driven her vehicle past the defendant when he pulled out of a parking spot and struck the rear portion of her vehicle. It is clear that a driver with the right of way is permitted to presume that other drivers will obey traffic laws that require them to yield and does not have a duty anticipate their negligent actions. See, e.g., Perez v. Brux Cab Corp., 251 A.D.2d 157 (1st Dep’t 1998). Plaintiff had no opportunity to avoid the collision. As such, plaintiff is entitled to partial summary judgment as a matter of law on the issue of liability as against the defendants. Moreover, the Court should not permit defendant to raise speculative arguments as to how plaintiff might have avoided the accident wholly caused by the defendant. See, e.g., Zuckerman v. City of New York, 427 N.Y.S.2d 595, 562 (1980) (mere “expressions of hope or unsubstantiated allegations” are insufficient to defeat a motion for summary judgment).
Based upon the foregoing, one may successfully argue that plaintiff has established liability “sufficiently to warrant the court as a matter of law” to direct judgment in her favor. See, CPLR 3212[b]; see, also, e.g., Friends of Animals v. Assoc. Fur Mfrs., 46 N.Y.2d 1065, 1067 (1979). A fair minded court may grant your timely motion on for partial summary judgment on the issue of liability.
