A Nassau County trial court recently granted summary judgment to a plaintiff whose car was hit while stationary. The case is Fontaine v. Curtin, 5659/12, NYLJ 1202616726798, at *1 (Sup., NA, Decided July 26, 2013).
Plaintiff … was traveling westbound on Lafayette Street and came to a stop at the stop sign located at the intersection of Herricks Road and remained there due to medium to heavy traffic on Herricks Road. She observed a cargo van on Herricks Road traveling at approximately 50 miles per hour (defendants’ vehicle). The van was attempting to execute a right hand turn onto Lafayette Street when it struck plaintiff’s vehicle on her driver’s side with the front bumper. Plaintiff had not moved her vehicle for approximately one minute from the time she stopped for the stop sign until the happening of the accident.
Defendant Dietz testified that a few feet before turning into Lafayette Street he observed plaintiff’s vehicle which was stopped. As defendant was attempting to make a right turn onto Lafayette, his van slid on the pavement resulting in the collision.
In opposition to plaintiff’s summary judgment motion, defendant conceded that it could not “establish a non-negligent explanation for striking plaintiff’s vehicle” but argued that “plaintiff’s conduct of going from a stopped position to accelerating the vehicle over four lanes of traffic after the collision establishes issues regarding plaintiff’s comparative negligence.”
The court disagreed, citing the
distinction between “comparative negligence” that could contribute to the cause of the actual accident and post contact conduct on the part of the plaintiff that may exacerbate her injuries.
In support the court cited the Court of Appeals’ “seminal seatbelt case” of Spier v. Barker (35 NY2d 444 ), which held that “the doctrine of contributory negligence is applicable only if the plaintiff’s failure to exercise due care causes, in whole or in part, the accident, rather than when it merely exacerbates or enhances the severity of the injuries.”
Therefore, “plaintiff’s alleged negligent conduct does not come into play until after the accident had occurred” such that “it would not be a consideration for this court in determining this summary judgment motion.”
The court thus held:
[P]laintiff has made a prima facie showing of entitlement to summary judgment on the issue of liability. Further, she has established that she is free from comparative negligence regarding the happening of the accident since the defendant’s vehicle came into contact with her stopped vehicle. In the cases cited by the defendants, there was a failure to demonstrate that the plaintiffs were free from comparative negligence as a matter of law.
In light of this showing, defendants were required to “submit competent evidence demonstrating the existence of a material issue of fact”, which they failed to do.