Should’ve Honked: Plaintiff Overcomes Summary Judgment in Accident Case

In Barracato v. SP Plus Corp., 2019 NY Slip Op 00698 (App. Div. 1st Dept. Jan. 31, 2019), a personal injury motor vehicle accident case, the First Department unanimously affirmed the lower court’s decision denying defendants’ motion for summary judgment.

In sum, plaintiff was unloading merchandise from the drivers’ side of his truck on a a two way multi- lane street, when he was hit by the passenger side of defendants’ shuttle bus as it drove by him.

The court explained:

Defendants’ motion for summary judgment was correctly denied because it did not present sufficient evidence to eliminate any material issues of fact concerning whether defendant driver failed to exercise due care to avoid striking plaintiff, whom he admitted seeing before the collision. While defendants presented evidence circumstantially supporting an inference that plaintiff stepped backwards into the bus, it likewise supports an inference that in the exercise of due care, the shuttle driver could have taken steps, such as honking to warn plaintiff of his approach[.] [Emphasis added.]

In reaching its conclusion, the court cited New York Vehicle & Traffic Law § 1146, which provides, inter alia, that “every driver of a vehicle shall exercise due care to avoid colliding with any bicyclist, pedestrian, or domestic animal upon any roadway and shall give warning by sounding the horn when necessary[.]”

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