• Be careful of what you fail to see.
  • March 2, 2018
  • Gibson v. Singh Towing, Inc., 2017 N.Y. App. Div. Lexis 7656 (App. Div. 2d Dept. 2017)

    The plaintiff was a passenger in a tow truck that was struck by a vehicle. The tow truck driver was parked and had pulled out from its parked position when it was struck by the vehicle. During trial, the tow truck driver testified he saw the vehicle behind him, stopped the truck and was then struck by the vehicle. The vehicle driver testified he did not see the tow truck. The jury was instructed pursuant to New York Pattern Jury Instructions—drivers have a duty to see that which they should have seen by the proper use of their senses—and the Vehicle & Traffic Law—drivers have a duty to move from a stopped or parked position only when it can be done with reasonable safety. The jury returned a verdict finding the vehicle driver was negligent; the driver’s conduct was a substantial factor causing the accident. The plaintiff moved to set aside the verdict, which found the tow truck driver’s actions were not a proximate cause of the plaintiff’s injuries, arguing the jury’s finding was contrary to the weight of the evidence. The lower court denied the plaintiff’s motion. The plaintiff appealed the lower court’s order denying the CPLR 4404(a) motion. The Appellate Court affirmed, finding the issues of negligence and proximate cause were not “inextricably interwoven” and the jury’s determination that the tow truck driver’s negligence was not the proximate cause of the accident. The Appellate Court found the evidence supported a finding that the tow truck driver was negligent in leaving his parking space, but the vehicle driver’s failure to see the tow truck was the proximate cause of the accident. The vehicle driver failed to avoid the collision, and that failure was the sole proximate cause of the accident.