In this final article of a two part legal series, New York trial attorney Christopher T. McGrath warns of certain auto accident case verdicts that may not be sustainable.
By Christopher T. McGrath, Esq.
In a prior article, I noted that the “Yes But No” auto liability verdict — the verdict in which a jury finds that Driver 1 was negligent but that his or her negligence was not a substantial cause of the subject accident — will sometimes stand and will sometimes be set aside.
I here explore two situations in which such a verdict is unlikely to stand.
If the driver was deemed negligent in making a turn, such is a situation in which it will likely be inconsistent or contrary to the weight of the evidence for the jury to find the driver negligent and yet to exonerate the driver on causation.
Similarly, if a jury concludes that a driver was negligent in failing to observe the vehicle or pedestrian he or she struck, such verdict is likely going to be set aside as inconsistent or unsupported by the proof.
New York attorneys with experience in handling cases arising from car accidents should be aware: some auto verdicts are destined not to stand.
Christopher T. McGrath is a New York attorney with experience in handling cases car accident litigation.
 Jones v. Radeker, 32 A.D.2d 494, 495-496, 820 N.Y.S.2d 321, 322 (2nd Dep’t 2006) (where “plaintiff made a right turn at a red traffic signal onto the roadway the defendants’ vehicle was traveling on” and “the jury determined that the plaintiff was negligent in violating Vehicle and Traffic Law § 1111(d)(2)(a) but that his negligence was not a substantial factor in causing the accident,” the verdict was “against the weight of the evidence”); Gabler v. Marly Building Supply Corp., 27 A.D.3d 519, 520, 813 N.Y.S.2d 120, 122 (2nd Dep’t 2006) (“[s]ince the plaintiff admitted he never saw the defendants’ vehicle prior to making his left turn across Metropolitan Avenue, he was negligent as a matter of law in failing to see that which he should have seen through the proper use of his senses”; the non-turning driver (defendant) was therefore properly granted summary judgment); Berner v. Koegel, 31 A.D.3d 591, 592, 819 N.Y.S.2d 89, 90 (2nd Dep’t 2006) (where “defendant admitted that she never saw the plaintiff’s vehicle prior to making her left turn across the northbound lanes of Newbridge Road,” plaintiff was entitled to summary judgment since “[a] driver is negligent if he or she has failed to see that which, through the proper use of senses, should have been seen”); Sullivan v. Pampillonio, 288 A.D.2d 299, 733 N.Y.S.2d 120, 121-122 (2nd Dep’t 2001) (where defendant “… cut across two parking spaces to make a right turn into a travel lane in the parking lot,” where defendant “claimed that he did not see the vehicle operated by the plaintiff John D. Sullivan which was traveling in the roadway,” and where “[t]he jury found that [defendant] was negligent in the operation of his vehicle, but that his negligence was not a proximate cause of the accident,” “the jury’s verdict finding that [defendant’s] negligence was not a proximate cause of the accident did not rest upon a fair interpretation of the credible evidence, and a new trial is warranted pursuant to CPLR 4404(a)”); Zambrano v. Seok, 277 A.D.2d 312, 312, 715 N.Y.S.2d 750, 751 (2nd Dep’t 2000) (where left-turning plaintiff failed to see oncoming car “[plaintiff] Zambrano was clearly negligent in failing to see that which he should have seen by the proper use of his senses” and “Supreme Court properly granted the defendant’s motion for summary judgment”); Pickard v. Koenigstreuter, 70 A.D.2d 693, 693, 416 N.Y.S.2d 399, 401 (3rd Dep’t 1979), app. dsmd., 48 N.Y.2d 652, 421 N.Y.S.2d 202 (1979) (where defendant himself “testified that he had an obstructed view of the oncoming lane for a distance of 150 feet but did not see [an oncoming] car until it was 30 feet away and he had begun to make the left turn,” “the decision by the trial court that the jury verdicts exonerating [defendant] were against the weight of the evidence was reasonably grounded”); see also Huff v. Rodriguez, 45 A.D.3d 1430, 1431, 846 N.Y.S.2d 841, 842 (4th Dep’t 2007) (where “defendant drove her vehicle from a parking lane into the flow of traffic, was attempting to turn either to her left or to make a U-turn, and her vehicle was struck by a vehicle proceeding in the same lane of traffic,” the Court noted that “[i]t is well settled that drivers have a ‘duty to see that which through the proper use of [their] senses [they] should have seen’” [citation omitted]).
 Kirchgaessner v. Hernandez, 40 A.D.3d 437, 437-438, 836 N.Y.S.2d 170, 171 (1st Dep’t 2007) (where truck driver “had an unobstructed view of the intersection in clear weather, but claim[ed] that he did not see any pedestrians in the crosswalk, although he was carefully observant,” driver’s “statement that he never saw her while being observant is incredible as a matter of law,” this notwithstanding that defendant’s experts criticized plaintiff for walking into the driver’s alleged blind spot); Augustine v. Dandrea, 274 A.D.2d 962, 963, 710 N.Y.S.2d 748, 750 (4th Dep’t 2000) (where defendant-driver “admittedly failed to see what was in her field of vision and there to be seen,” trial court correctly ruled that the verdict exonerating defendant was against the weight of the evidence); Weiser v. Dalbo, 184 A.D.2d 935, 936, 585 N.Y.S.2d 124, 125 (3rd Dep’t 1992), lv. dsmd., 80 N.Y.2d 925, 589 N.Y.S.2d 312 (1992) (where defendant allegedly failed to see crossing vehicle, she “breached her common-law duty ‘to see what by the proper use of her senses she might have seen’” [citation omitted] and “Supreme Court erred in denying plaintiffs’ motion to set aside the verdict in favor of [the defendant-driver]”); Sappleton v. Metropolitan Suburban Bus Authority, 140 A.D.2d 684, 684, 529 N.Y.S.2d 21, 22 (2nd Dep’t 1988) (“plaintiff contends that the jury’s finding of no negligence on the part of the defendant is against the weight of the credible evidence. We agree. This is a case where the bus driver was bound to see what, with proper use of his senses, he should have seen … his claim that he did not see the utility pole until after the collision was an admission that he failed to keep a proper lookout”); Avila v. Mellen, 131 A.D.2d 408, 409, 515 N.Y.S.2d 856, 857 (2nd Dep’t 1987) (“This is a case where Mr. Mellen was bound to see what, with proper use of his senses, he should have seen … Thus, his claim that he did not see Sullivan [a pedestrian] until he was 10 feet or less away from her and that he did not see the plaintiff prior to hitting her was an admission that he failed to keep a proper look out for the safety of pedestrians”); Abrams v. Gerold, 37 A.D.2d 391, 394, 326 N.Y.S.2d 1, 5 (1st Dep’t 1971) (where “the physical facts demonstrate that appellant’s approaching vehicle must have been there to be seen,” the verdict exonerating the driver was against the weight of the evidence); Bartholomew v. New York Telephone Company, 35 A.D.2d 767, 767-768, 315 N.Y.S.2d 71, 74 (3rd Dep’t 1970) (where motorist allegedly failed to observe crossing vehicle “until he caught a glimpse of it just before the collision, in spite of the fact that it was clear, daylight and his view unobstructed,” the “only reasonable inference to be drawn” was that the driver “either did not look or erroneously thought he had time to get through the intersection” and, in either case, “we are compelled to conclude that the verdict of no cause for action in favor of the Telephone Company is against the weight of credible evidence and must be set aside”).