Wade Clark Mulcahy LLP

In Jones v Haifeng Zuo, the Appellate Division, Second Department recently addressed competing liability claims in an automobile accident case. In that case, the defendant was having trouble seeing oncoming traffic after stopping at a stop sign at an intersection. He inched his vehicle forward to look for cars and collided with the plaintiff’s vehicle. Plaintiff moved for summary judgement on the issue of liability, also seeking a dismissal of defendant’s comparative liability claim, based on Vehicle and Traffic Law § 1142(a). That section provides that “every driver of a vehicle approaching a stop sign shall stop . . . and after having stopped shall yield the right of way to any vehicle which has entered the intersection from another highway, or which is approaching so closely on said highway as to constitute an immediate hazard during the time when such driver is moving across or within the intersection." The trial court granted the motion in its entirety.

The Second Department first affirmed the trial court’s grant of summary judgment as to the defendant’s liability, finding that plaintiff submitted an affidavit establishing that the defendant failed to yield the right-of-way after stopping at the stop sign and collided with plaintiff’s vehicle. However, the Court also reversed the trial court’s dismissal of defendant’s comparative negligence defense. In so holding, the Court recognized that a driver who has the right-of-way still has a duty to “exercise reasonable care to avoid a collision [and] to see what there is to be seen through the proper use of his or her senses." The defendant’s Affidavit emphasized that he remained in the same location for 10-20 seconds after moving beyond the stop sign so there were triable issues of fact as to whether plaintiff holds some liability for failing to reasonably avoid the accident.

The takeaway from Jones is that automobile defendants should pursue a comparative negligence defense even when they have potential liability and plaintiff will likely prevail at the summary judgement stage. Pressing and preserving the defense can weaken a plaintiff’s damages claim and provide stronger settlement leverage.