Fourth Department – Negligence: Scime v. Hale Northeastern

New York State Supreme Court, Appellate Division, Fourth Judicial Department

Negligence

Issue of fact – Summary judgment

Scime v. Hale Northeastern

CA 22-01276

Appealed from Supreme Court, Erie County

Background: The plaintiff commenced an action after being struck by a vehicle owned by the defendant. The vehicle was backing out of a loading dock and struck the plaintiff while he was on his cell phone smoking a cigarette. While the plaintiff continued to talking on the phone and smoking, he later commenced the action alleging a serious injury. The plaintiff appealed from the denial of his motion for summary judgment.

Ruling: The Appellate Division affirmed. The court held that the plaintiff’s own submissions raise an issue of fact on the issue of negligence. The driver testified that before backing out, he used both the rear-view mirror and the side mirror and did not see anyone. After five to 10 feet, he heard a thud. It was then he learned he struck the plaintiff. The plaintiff merely stated that he believed that he was stationary at the time of impact, but he could not recall if he was pacing while on the phone.

John A. Collins, of Lipsitz Green Scime Cambria, for the plaintiff-appellant; Thomas J. Speyer, of Chelus, Herdzik, Speyer & Monte, for the defendants-respondents.