In Jahangir v. Logan Bus, the decedent was killed when she was hit in the head by the side view mirror of a minibus. The defendant moved for summary judgment, arguing that the decedent darted out into the street from between two parked cars, away from the cross walk and directly into the defendant’s path. The plaintiff opposed the motion by producing an affidavit of a non-party witness, in whose car the decedent was a passenger. The witness stated that the decedent got out of the car and crossed quickly in front of his car and stopped in the area between his car and a bus that was stopped directly in front of his car. As the decedent did this, she stuck her head out directly “above the double yellow line” separating eastbound and westbound traffic for about two to three seconds, at which time the decedent was struck in the head by the driver’s side mirror of the defendant’s minibus. The Supreme Court, Queens County granted the defendant’s motion, holding that there was sufficient evidence that the defendant driver could not have avoided contact with the decedent.
The Appellate Division, Second Department reversed the lower court’s decision holding that there can be more than one proximate cause of an accident and that the issue of comparative negligence is generally a question for the jury to decide. The court further noted that the fact that the decedent’s head may have been directly above the double yellow line when she was struck suggests that the mirror may have been straddling the double-yellow line, in violation of Vehicle and Traffic Law section 1128 (a). Thus, an issue of fact existed as to whether the defendant committed a statutory violation and whether that violation was the proximate cause of this accident.
Thanks to Ed Lomena for his contribution to this post.