McCulley v. Sandwick

¶1We respectfully dissent. The crux of the majority’s decision is that the jury was free to credit the testimony of defendant, the responding police officer and the eyewitnesses and, in so doing, could logically conclude that the negligence of plaintiff Melanie L. McCulley (hereinafter plaintiff) in executing the offending traffic maneuver was the sole proximate cause of the underlying accident. And indeed, with that much of the majority’s decision, we agree. However, we do not believe that the jury simultaneously could permis*627sibly conclude that defendant was negligent but that plaintiff s negligence was the sole proximate cause of the accident.

¶2Simply put, if the jury was of the view that plaintiffs negligence was the sole proximate cause of the accident, it should have answered “No” in response to the question of whether defendant was negligent in the use or operation of his vehicle. On the other hand, if, as it did, the jury answered that inquiry in the affirmative and found defendant to be negligent, however minimally, it necessarily follows that such negligence was a contributing cause to the accident and, as such, the jury should have proceeded to apportion liability accordingly. In short, given Supreme Court’s charge, which instructed the jury that both drivers were required to maintain a safe rate of speed, have his or her vehicle under reasonable control, keep a proper lookout and use reasonable care to avoid an accident, and defendant’s admission that he did not slow down as he approached the subject intersection, we find the jury’s verdict to be inconsistent and illogical (see Petrone v Mazzone, 284 AD2d 634 [2001]).

¶3To be sure, as noted by the majority, a defendant may be negligent without such negligence contributing to the happening of an accident.* However, given the record here, no fair view of the evidence would permit a finding of negligence that did not, in some measure, contribute to the happening of the accident. Stated another way, defendant’s failure to slow down as he approached the intersection and/or maintain a proper lookout cannot be said to have played no role whatsoever in contributing to the underlying accident. Accordingly, we would grant plaintiffs’ motion to set aside the verdict and remit for a new trial.

¶4Lahtinen, J., concurs.

¶5Ordered that the judgment and order are affirmed, with costs.