In Brandt v. Zahner, decided Oct. 9, 2013, the Appellate Division, Second Department reversed summary judgment for defendant driver, thereby reinstating plaintiff pedestrian’s claims.
Plaintiff claimed he was ” injured when, after crossing the westbound lane of I.U. Willets Road in Nassau County, he was struck by a vehicle driven by the defendant in the eastbound lane of that road.”
The appellate court held that, contrary to the trial court’s determination, defendant failed to demonstrate her prima facie entitlement to judgment as a matter of law. In doing so, it cited the law that:
A driver is bound to see what is there to be seen with the proper use of his [or her] senses. Further, there can be more than one proximate cause of an accident, and the issue of comparative negligence is generally a question for the jury to decide.
Defendant’s failure to see plaintiff was fatal to her motion:
[D]efendant testified at her deposition that she did not see the plaintiff prior to “contact,” and that she had her foot on the accelerator pedal at the moment of contact. The defendant did not explain her failure to see the plaintiff, who had first traveled across the westbound lane of traffic before entering her eastbound lane of traffic, before her vehicle hit him. Accordingly, the defendant failed to demonstrate, prima facie, that she kept a proper lookout and that her alleged negligence did not contribute to the happening of the accident
Since defendant failed to meet her initial burden on summary judgment, it was unnecessary for the court to review the sufficiency of plaintiff’s opposition papers.