A car struck my daughter when she was retrieving a dog. The dog had apparently gotten out of somebody’s yard and was roaming in the street. My daughter saw the dog in the road. She pulled over her car to retrieve the animal and call the dog’s owner listed on the dog tag. Unfortunately, there was a driver coming in the opposite direction. The driver did not see my daughter. She was injured. She went to the hospital. What claims does my daughter have?
No-Fault Benefits
The first claim your daughter has is for no-fault benefits. In your daughter’s case, the insurance policy of the car that struck her will cover your daughter’s medical expenses and part of her lost wages. I explained no-fault benefits in a prior post. She must apply for these benefits within 30 days after the accident.
Personal Injury Claim Against Driver
Besides no-fault benefits, your daughter can sue the driver of the car that struck her. Even though your daughter was in the street (probably not at a crosswalk or at a corner crossing) trying to catch the dog, the driver still had a duty to avoid hitting her. New York Vehicle and Traffic Law § 1146.
Personal Injury Claim Against Dog Owner
The other claim your daughter should bring is against the owner of the dog. The claim against the dog owner is negligence in failing to keep the dog in the yard or apartment. The dog owner did not properly secure the animal and left it to roam the streets. Your daughter would argue the roaming dog created danger. Your daughter tried to save the dog from harm by trying to pick up the dog in the street.
Proximate Cause
This raises an important legal issue called “proximate cause.” Students spend weeks studying “proximate cause” in law school. I only mention this because this is a highly litigated issue without a clear rule.
In this case, the dog owner can argue that losing the dog is negligent, but the real cause of the accident was your daughter in the street. Additionally, the car driver was speeding and not looking where they were driving. In other words, the dog owner would argue that there was no “proximate cause” between negligently letting the dog roam free and the car accident.
Before the jury can consider a case of “proximate cause,” a judge must determine the issue as a matter of law. The Court must assess if the negligent act of the dog owner was a proximate cause of the pedestrian knockdown accident. The Court will consider at least three factors: (1) passage of time between the original negligent act and the intervening act; (2) the spatial gap, if any, between the original act and the intervening act; and (3) whether the original act of negligence was a completed occurrence or was ongoing at the time of the intervening act. Hain v Jamison, 28 NY3d 524 (2016). It would not be fair to say all judges would come to the same conclusion. They would not.
Jury Question
Most of the time, a Court will allow a jury to decide proximate cause. In this case, the jury decides if a negligent event, such as a dog owner letting their dog escape, is the proximate cause of the accident causing the injury. The Court will instruct the jury to determine if the first negligent act, like a dog owner letting their dog escape, was a “substantial factor” in bringing about the pedestrian knockdown. PJI 2:71. Then it will be up to six people in the jury room to discuss and come to a consensus.
By James Santner, Esq.
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