In Adams v Bruno (2015 NY Slip Op 00319), an infant-plaintiff sustained injuries when he was thrown from the hood of a moving vehicle operated by defendant.  Apparently, the vehicle was stopped but running in a high school parking lot when plaintiff jumped onto the hood — plaintiff was then thrown from the hood when the vehicle started moving.  (Frankly, it comes as no shock that these facts occurred in a high school parking lot, but we digress…)

Plaintiff moved for summary judgment on the issue of liability and the trial court denied the motion.  In agreeing with the trial court, the Second Department noted that a plaintiff moving for summary judgment on liability must establish not only that the defendant was negligent, but also that the plaintiff was free from comparative fault.

Not surprisingly, the Second Department found that plaintiff failed to demonstrate, as a matter of law, that he exercised reasonable care with respect to the occurrence of the accident. Whether plaintiff’s jumping on the hood of defendant’s car while it was stopped constitutes comparative fault is ultimately an issue for the jury.           

This decision reminds us to hold plaintiffs to their proofs. In a negligence case where plaintiff may have some degree at fault, plaintiff should be held strictly to their proofs in summary judgment motions.  Frankly, it also reminds us that the realm of plaintiff’s actions that should prompt a plaintiff’s embarrassment, rather than a lawsuit, is ever shrinking.  Thanks to Alison Weintraub for her contribution, and please contact Brian Gibbons with any questions.