Wade Clark Mulcahy LLP

There was an average of 19,937 car crashes a day in the United States last year, and a question frequently asked is, “who had the right of way?” In New York, a driver with the right of way is entitled to anticipate that other drivers will obey the traffic laws requiring them to yield to the driver with the right of way. Drivers with a right of way also have a duty to use reasonable care to avoid a collision. But a driver with the right of way, who only has seconds to react to a vehicle which has failed to yield, is generally not comparatively negligent for failing to avoid the collision.

This rule was recently addressed by the Appellate Division, Second Department in Smith v. Trail. In that case, the plaintiff sought damages for injuries allegedly sustained when her vehicle collided with another vehicle at an intersection. Immediately before the accident occurred, plaintiff was making a left hand turn while defendant was traveling straight. The plaintiff testified that she approached the green light at the intersection and stopped before making the turn with her left turn signal on. She claimed that she did not see any oncoming vehicles and began to make her turn when she suddenly saw the defendant’s vehicle 10 to 20 feet away.

Defendant moved for summary judgment, arguing that he had the right of way. The trial court denied the motion, finding there was an issue of fact as to whether the defendant should have taken evasive action to avoid the accident.

The Second Department reversed and granted the defendant’s motion to dismiss the complaint. The Court determined that the defendant demonstrated that he had the right of way, that the plaintiff failed to yield the right of way, and that defendant did not have sufficient time to react in order to avoid the collision. It found that the defendant, as the driver with the right of way, was entitled to anticipate that plaintiff would obey traffic laws which required her to yield.

The Smith case reinforces the general rule in New York that while drivers with the right of way must use reasonably care to avoid accidents, they will not be responsible if they don’t have enough time to do so.