A typical case arises when a motor vehicle strikes a pedestrian thereby causing serious injury. The questions that are usually raised are whether the operator violated any traffic statutes (e.g. traffic light, stop sign, or other traffic devices); whether the operator drove his vehicle with reasonable care (e.g. speed, road conditions, visibility, etc.); whether the operator had reasonable control of his vehicle; whether the operator saw what in his view he should have seen; whether the operator exercised reasonable care in avoiding contact with the pedestrian, etc. These are all questions that ultimately must be decided by a jury or trier of the fact in determining whether the operator was negligent.
In addition to the above, the conduct of the pedestrian immediately prior to the accident, must be assessed by a jury. These are some of the questions that are relevant on that issue: whether the pedestrian acted in a reasonably prudent manor immediately prior to being struck by the motor vehicle (i.e. crossing against the light, not crossing at a crosswalk, darting out into traffic, etc.). The conduct of the pedestrian is measured by the reasonable man standard. Should the jury find that the pedestrian contributed by his or her own negligence to the accident, it must, under New York Law law, apportion the percentage of negligence to be attached to the pedestrian. This rule once known as contributory negligence was a complete bar to a plaintiffs’ recovery. Such is no longer the rule in New York. The rule now known as comparative negligence permits a recovery by the plaintiff where the defendant operator is found to be negligent even if the pedestrian has contributed by his or her own negligence to the accident. Such percentage of comparative negligence is then attached to the plaintiff pedestrian which reduces the recovery to the plaintiff in accordance with the comparative negligence found by the jury.
In addition to the issues of negligence and comparative negligence, the jury must find that the accident caused “serious injury” to the plaintiff. Thus, both the negligence and “serious injury” components must be found in order for the plaintiff to prevail (the issue of “serious injury” is discussed later in this article).
While the negligence of a motor vehicle operator, and the comparative negligence of a pedestrian falls within established law, thousands of “pedestrian knockdown” cases are brought each year with a number defended successfully, but each case turning upon its own specific facts.
In a recent Supreme Court Bronx County case, Rodriguez v. Emanuele, reported in the New York Law Journal on July 11, 2012 (Justice Hunter), the plaintiff was a pedestrian walking on the sidewalk when two vehicles collided with each other, causing one of the vehicles to mount the sidewalk, striking the pedestrian. An action was brought by the injured pedestrian against both operators, thereafter seeking summary judgment, (meaning that there was no issue of fact concerning comparative negligence of the pedestrian and that the injury claimed could only have resulted from the negligence of one or both of the operators). The defendants’ claimed that the issue of the pedestrian’s comparative negligence raised a question of fact to be decided by a jury and not as a matter of law by the court, since they alleged that the pedestrian could have avoided the injury by getting out of the way of the vehicle that mounted the sidewalk and struck her.
This argument was rejected by the court and summary judgment on the issue of plaintiffs’ comparative negligence was granted, thus deciding that there was no negligence on the part of the pedestrian that contributed to her injury and that one hundred percent of the negligence rested with either one or both of the defendant operators, the percentage of negligence of each to be determined by the jury.
The second issue raised was whether the pedestrian sustained a “serious injury” under New York Insurance Law §5102. This law summarized here states that the plaintiff has the burden to prove: (1) that the injured plaintiff sustained a significant limitation of use of such body organ or part; (2) that the injury claimed produced a significant limitation of use of the body organ or part; (3) that the injury claimed had been medically determined to prevent usual activities for ninety days during the one hundred eighty days immediately following the accident.
Therefore, in order to satisfy the “serious injury” requirement of the insurance law, the plaintiff must offer specific and detailed proof (and not mere conclusory statements) as to each of the three elements set forth above. As such, it is incumbent upon the personal injury attorney to be intimately familiar with all of the many reported cases on the subject of “serious injury” and the strict demands of the courts in order to fully protect the rights of the injured plaintiff.