Car Accidents: This 4th Dept. appeals court decision touches on a few different things. First, relying upon an expert to make your case out when the expert’s opinion is speculative in nature, usually will not end well. Second, the plaintiff attempted to rely upon the Noseworthy doctrine.
The Noseworthy doctrine derives from the case of Noseworthy v City of New York, 298 NY 76 . The Noseworthy doctrine, if appropriate based upont he facts of the case, permits a plaintiff to prevail in a case with a reduced amount of proof. The doctrine “mitigates the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia” (or death) “stemming from the very accident or event for which he seeks to hold the defendant liable.” In the case below, the 4th Dept. appeals court ruled a required issued of fact was not present and the doctrine was not applicable.
Shanahan v. MacKowiak
In this wrongful death action, the plaintiff’s decedent drove his vehicle into the opposing lane of traffic and collided with the defendants’ vehicle.
In moving for summary judgment, the defendant driver contended that he was confronted with an emergency not of his own making and that he acted reasonably to avoid the collision. In opposition, plaintiff contended that Noseworthy applied, and submitted an affidavit from an expert who opined that the decedent’s vehicle was in the defendant’s lane for a sufficient period of time for the defendant driver to have avoided the collision.
Order denying defendants’ motion for summary judgment is reversed, and motion granted. The opinion of plaintiff’s expert was speculative and, therefore, insufficient to raise a triable issue of fact as to whether the defendant driver was negligent. Further, Noseworthy does not apply until an issue of fact is raised.
If you or a loved one has been the victim of a serious injury or fatality due to a car/truck/bus accident, you may be entitled to compensation. Contact an experienced car accidents injury trial lawyer at The Maurer Law Firm, PLLC to schedule a free consultation to discuss your rights by filling out our free website “Tell Us About Your Case” review form, or phone us directly at 845- 896-5295.
Posted by Ira M. Maurer, Esq. for The Maurer Law Firm, PLLC
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