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Road Injury Prevention & Litigation Journal
Copyright © 1997 by TranSafety, Inc.
May 12, 1997
TranSafety, Inc.
(360) 683-6276
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New York Court Will Reconsider Allocation of Fault to Pedestrian Hit in Unmarked Crosswalk
Survey Measures Knowledge of Pedestrian Laws and Traffic Control Devices
Court to Decide if New Mexico Highway Department Should Have Foreseen Thirteen-Year-Old's Behavior in Crossing Urban Freeway
Does Enforcement of Pedestrian Right-of-Way Laws Increase Driver Compliance?

Highway Safety Publications Catalog. Articles on Road Engineering, Road Maintenance & Management, and Injury Litigation. Information and consulting for the Automobile and Road User, as well as for law professionals in accident investigations.
TranSafety's free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and highway safety publications catalog. See our free consumer journal for automobile and road users, three subscription journals on road maintenance, engineering, and injury litigation, and a highway safety publications catalog.

New York Court Will Reconsider Allocation of Fault to Pedestrian Hit in Unmarked Crosswalk

A pedestrian sued the vehicle driver who struck and injured him while the pedestrian crossed a New York street within an unmarked crosswalk. A jury trial in the Supreme Court of Bronx County awarded damages to the pedestrian; however, the jury found the pedestrian 80 percent negligent. When the pedestrian appealed, the Supreme Court, Appellate Division, First Department found it was an error for the trial court to instruct the jury on a pedestrian's responsibility to yield right of way to vehicles without referring to a vehicle's responsibility to yield to pedestrians. Therefore, the appellate court reversed the trial court's decision and remanded the case.

The Collision

During daylight hours, Flavio Cavalli (plaintiff) crossed Swift Avenue in Eastchester. He was walking north within an unmarked crosswalk. Both Cavalli and the driver (defendant) of the vehicle that hit him testified at trial that the vehicle struck Cavalli while he was within the unmarked crosswalk. The defendant had just passed a white line and a stop sign and was turning right to proceed in a southerly direction on White Plains Road.

Trial Court Decision

In October of 1993, the trial court entered judgment and awarded the plaintiff $5,000. The jury awarded total damages of $25,000; however, they found the plaintiff pedestrian 80 percent at fault in the collision. On Eugenia Cavalli's claim for loss of consortium, the jury awarded no damages.

Appellate Court Decision

The plaintiff appealed, claiming error in the trial court's instructions to the jury. Specifically, despite the plaintiff's objections, the trial court instructed the jury with respect to McKinney's Vehicle and Traffic Law  1152(a) which states:

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

All the evidence here, according to the appellate court, located this collision in an unmarked crosswalk as defined by Vehicle and Traffic Law  110. Despite this, the court did not instruct the jury in Vehicle and Traffic Law  1151, which requires vehicles to yield right-of-way to a pedestrian within a crosswalk (Fan v. Buzzitta, 42 A.D.2d 40, 344 N.Y.S.2d 788). During deliberations, the jury asked at least three times for clarification; each time, the trial court reiterated its instructions pertaining to pedestrians yielding to vehicles without instructing the jury on a vehicle's responsibility to yield to pedestrians in an unmarked crosswalk.

The appellate court concluded:

The prejudice of these improper instructions is apparent in the jury's liability determination apportioning 80% of fault to the pedestrian plaintiff, a conclusion that even defendants' counsel in summation did not have the temerity to urge. (On this aspect, he had suggested the jury might consider a 50-50 apportionment of fault.)

Reversing the lower court's decision and remanding the case, the appellate court added a recommendation that, at the retrial, the court not allow the defense to introduce information concerning the defendant driver's charitable activities or to present other types of good-character evidence. Referring to Beach v. Richtmyer (275 A.D. 466, 90 N.Y.S.2d 332), the appeals court described this type of evidence as "irrelevant and prejudicial."

[For further reference, see Flavio Cavalli, et al. v. Bryn S. Cohen, et al. (A.D. 1 Dept. 1994) from West Publishing Vol. 618 New York Supplement, 2d Series, 339]

Copyright © 1997 by TranSafety, Inc.

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