In Quintavalle v. Perez, 2016 NY Slip Op 03126 (App. Div. 1st Dept. April 26, 2016) (a car accident/pedestrian knockdown case) the court held that a pedestrian struck from behind was, as a matter of law, not comparatively negligent (for failing to notice an avoid a vehicle that struck him from behind) and entitled to summary judgment on liability.
Here are the facts, as summarized by the court:
On July 2, 2014, at about 9:30 p.m., plaintiff Patrick Quintavalle was heading east across Third Avenue in the north crosswalk of the intersection at 41st Street and Third Avenue in Manhattan. With the light in his favor, as he reached the middle of the crosswalk, an airport shuttle bus …, which was traveling eastbound on 41st Street, turned left to go north on Third Avenue, running over plaintiff’s left foot as he crossed. Plaintiff testified that he looked right and left before proceeding into the crosswalk, but did not see the bus until it made contact with him. Plaintiff suffered fractures, a partial amputation of the first and second digits, and a de-gloving injury to his left foot.
Upon a review of relevant case law concerning pedestrians’ duty of care, the court held that “as a matter of law plaintiff is not comparatively negligent based on a failure to notice and avoid a vehicle that came up from behind him, striking him as the vehicle turned into the crosswalk”, noting that “the imposition of such an obligation on pedestrians in such circumstances would be unreasonable and unsafe.” Notably, there was “nothing to indicate that plaintiff failed to exercise ordinary caution or pay ordinary attention as he walked, such as would have given him advance warning of defendants’ bus coming up behind him.”