The New York Supreme Court, Appellate Division, Second Department affirmed an order denying defendant driver’s motion for summary judgment in a rear-end car accident case.
In 2011, the two plaintiffs were in their car waiting at a red light at the intersection of Ninth Avenue and 49th Street in Brooklyn, New York. While waiting, the defendant’s car approached. The two cars collided. The rear of the plaintiff’s car was damaged, and the front of the defendant’s car was damaged. The plaintiffs filed a civil lawsuit for negligence.
During litigation, the plaintiff filed a motion for summary judgment, stating that it had established negligence and was owed judgment as a matter of law. In response, the defendant filed a cross motion for summary judgment, arguing that the defendant was entitled to judgment as a matter of law because he had not acted negligently. The trial court denied both the plaintiff’s motion and the defendant’s cross motion.
Negligence is the failure to exercise a duty of care to prevent reasonably foreseeable injury. There are an infinite number of various duties of care that exist. For instance, property owners have a duty of care to maintain their properties in safe conditions for guests. Municipalities have a duty of care to maintain the roads by removing snow or fixing potholes. And drivers have a duty of care to obey traffic laws and street signs and drive safely.
When a rear-end collision occurs with a stopped or parked vehicle, then the plaintiff has established a prima facie case of negligence. The defendant driver must then rebut this prima facie case by proving that he did not act negligently. An example of a non-negligent explanation for a rear-end collision is that “sudden or unavoidable circumstances” occurred.
Regarding the plaintiff’s motion for summary judgment, the plaintiff succeeded in establishing a prima facie case of negligence because a rear-end collision had occurred. The plaintiffs provided their own testimony that the defendant driver crashed into the rear of the plaintiffs’ car while they sat at a red light. It was therefore the defendant’s job to rebut this negligence with a justified excuse.
In his cross-motion for summary judgment, the defendant asserted that he had not acted negligently. In fact, he alleged that the plaintiffs had caused the accident. He cited his affidavit, in which he stated that he was slowly approaching the plaintiffs at the red light. Suddenly, for no reason and without warning, the plaintiffs began reversing and hit the front of his car.
Because of the conflicting stories, it wasn’t appropriate to grant either the motion or cross-motion. The conflicting testimony created a genuine dispute as to whether the plaintiff either caused the crash or at least contributed to it. As such, it was proper to deny the motions and allow the case to go to a jury for a decision.
Often times, trials appear to be battles of he-said-she-said. What should a plaintiff do if the defendant tries to rebut a claim by blaming the plaintiff?
First, the burden of proof in personal injury lawsuits is fairly low. The burden of proof is preponderance of the evidence. This means that the plaintiff’s version of the facts is more probable than not or more likely than not to be true. This could mean that the plaintiff has only proved his or her case by 51%. If the plaintiff’s case is stronger, even slightly, than the defendant’s defense, then the plaintiff will win under the preponderance of the evidence standard.
Second, the defendant may be liable for perjury if he or she lies during a deposition or in an affidavit or while testifying on the stand. Perjury is simply legal jargon for lying while under oath. A trial court judge has broad discretion for fashioning sanctions when perjury has occurred. This can include striking a defendant’s testimony, prohibiting defense attorneys from using the defendant’s statements as evidence, or even granting summary judgment for the plaintiff.
If you or a loved one has suffered personal injury during a car accident, don’t hesitate to contact the skilled personal injury lawyers at Gallivan & Gallivan today.
Lisetskiy v. Weiss, 123 AD3d 775 (2nd Dept. 2014)