Wade Clark Mulcahy LLP

In the matter of <em><a href="https://www.wcmlaw.com/wp-content/uploads/2023/07/A.B.-v.-Waring.pdf">A.B. v. Waring</a>,</em> 2023 NY Slip Op 03671, (July 5, 2023) the infant plaintiff brought action after he was struck by a vehicle operated by the defendant driver, while the plaintiff was attempting to cross a street on his bicycle. The Second Department reversed the lower courts holding and awarded summary judgment to the defendant motorist that struck an infant bicyclist.

In reaching their holding, the Second Department stated that the burden of proof to establish lack of negligence rests on the shoulders of the movant defendant. The court went on to state that when a driver has a right of way, they are entitled to assume that all other parties will obey the traffic laws, and they cannot be held to be comparatively at fault when they only have seconds to react when one fails to obey those laws. Specifying that every person riding a bicycle upon a roadway, shall be subject to all of the duties applicable to the driver of a vehicle.

Here, the infant plaintiff was found to have been negligent when he entered the roadway mid-block from in front of a parked van without yielding to oncoming traffic. This action was deemed to be the sole proximate cause of the accident. The court noted that the driver was only traveling between 15-20 miles per hour and had at most two seconds to react before the incident occurred. Therefore, the Defendant was able to establish that they had no manner to avoid the collision. This was sufficient to be granted summary judgment and have the complaint be dismissed.

Thanks to Chris Palmieri for this assistance with this article.  Should you have any questions, please contact <a href="tbracken@wcmlaw.com">Tom Bracken</a>.