Wade Clark Mulcahy LLP

There is nothing worse for a litigator than having evidence that you think will guarantee success for your client …only to discover that it isn’t actually helpful. In the recent case of <em><a href="https://www.wcmlaw.com/wp-content/uploads/2022/10/Cheese-v.-Ferguson.pdf">Cheese v. Ferguson</a>,</em> the defendant faced this avoidable problem. In that case, plaintiff and defendant were involved in a car accident on the Long Island Expressway. The Defendant moved for summary judgement based on dash cam video that showed that for twelve seconds preceding the accident, the defendant was driving safely in their own lane. This was enough for the Supreme Court to grant the motion and dismiss defendant from the suit.

However, the Second Department reversed after taking a closer look at the dash cam footage. The court observed that for at least five seconds before the accident, plaintiff’s vehicle was pointed toward defendant’s lane of traffic and that the defendant was looking to the left before the impact. The court found that such footage contradicts the defendant’s claim that plaintiff’s vehicle cut into his lane “suddenly and without warning” and thus he had no duty to avoid the accident. Accordingly, the defendant failed to eliminate triable issues of fact as to whether the defendant was the proximate cause of the accident, and the court vacated the summary judgement order.

Defendants and their attorneys must always be mindful of the positive and negative impact of evidence used in personal injury litigation. The <em>Cheese</em> decision highlights the importance of defense counsel fully reviewing and understanding such evidence, particularly video footage. Thought should be given as to whether to use this evidence where it contains both exculpatory and incriminating images.

Thank you to Alexander Rabhan for his contribution to this post. Please contact <a href="mailto:agibbs@wcmlaw.com">Andrew Gibbs</a> with any questions.