First Department Affirms Liability Finding for Hit-and-Run Pedestrian Accident

The New York Supreme Court, Appellate Division, First Department affirmed a trial court order that granted partial summary judgment for the plaintiff on liability, holding that the defendant driver was negligent when he hit the pedestrian in the crosswalk.

The plaintiff was crossing the street when he was hit by the defendant’s car. Prior to being hit, he was on the crosswalk, had already crossed two traffic lanes, and had the light. The defendant was speeding and made a quick right turn when he collided with the pedestrian. The plaintiff was knocked to the ground. When the plaintiff got up to get help, the defendant then drove off but was later caught. The plaintiff filed a negligence lawsuit for personal injury damages. The plaintiff also filed a motion for partial summary judgment.

In his motion for partial summary judgment, the plaintiff alleged that he had established a prima facie case of negligence based on the facts. The defendant opposed the motion and argued that the plaintiff had contributed to the accident with his own negligence. The defendant argued that the plaintiff did not look both ways before beginning to cross.

However, according to the defendant’s deposition, the defendant was unable to remember anything about the accident, including whether the plaintiff had acted negligently in any way. Thus the allegations that the plaintiff had contributed to the accident or had failed to look both ways was based purely on speculation. Evidence, not mere speculation, is required through documentation or testimony to show contributory negligence.

The plaintiff also requested that punitive damages be assessed against the defendant. Punitive damages are used rarely in civil cases. They are designed to punish the defendant for his wrongdoing. The reasoning behind punitive damages is that the defendant will pay the price for wronging society and will learn to correct his action in the future.

However, punitive damages are usually only permitted in lawsuits that involve intentional wrongdoing. Car accidents involving negligence are not intentional. The driver did not intend to hit the plaintiff. Therefore, punitive damages were not appropriate in this case. The plaintiff argued that the defendant had intended to flee the scene. While this is true, the plaintiff did not appear to be in any more real danger at that point as he had gotten up off of the ground and had begun walking.

The First Department therefore denied the request for punitive damages but partially granted the motion for summary judgment by assessing liability against the defendant driver.

This means that negligence has been established, and the defendant has been found liable for the car accident. Now the parties will need to present the damages part of their cases. Damages are often a hotly contested issue in trial. A defense attorney may be willing to concede that his defense to a negligence claim is fairly weak but may believe that the plaintiff has severely over-inflated the damages request in the complaint. That defense attorney may therefore focus closely on proving that the plaintiff’s medical expenses, loss of quality of life, or lost wages are much lower than the plaintiff calculated.

When a court finds partial summary judgment for the plaintiff by assessing liability against the defendant, the likelihood of a settlement offer from the defendant’s car insurance company increases. Car insurance companies usually offer settlement amounts to plaintiffs in the beginning of litigation in order to reduce the burden of costly and timely litigation. However, depending on how weak the car insurance company assesses the plaintiff’s case to be, the settlement offer could be fairly minimal.

With a liability assessment in this case, the car insurance company is likely to offer a higher settlement amount. This offer will be less than the requested damages because it takes into account the amount of money saved by the parties by avoiding trial.

However, a liability assessment may also be a green light for a plaintiff to pursue a trial if he has a way of proving his damages. The plaintiff may also be awarded attorneys’ fees as part of the damages calculation.

If you or a loved one has been injured in an automobile accident, contact the skilled personal injury lawyers at the Law Offices of Thomas L. Gallivan, PLLC to review your negligence claim today.


Coutu v. Santo Domingo, 123 AD3d 410 (1st Dept. 2014).

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