My 12 year old daughter ran into our street after her cat. Unfortunately she did not see the car travelling down the street which struck her. What claims does she have?
No Fault Claim
New York is a no fault state. That means your daughter’s medical bills will be paid through car insurance rather than health insurance. In this particular case, the applicable carrier is the insurance company that wrote the policy covering the car that struck your daughter. The medical portion of the claim has nothing to do with proving fault. Think of no fault coverage as an attached health insurance rider attached to every car insurance policy. You will have to file a no-fault application within 30 days after the accident with the insurance company. This is necessary to collect benefits on behalf of your daughter.
The second claim that your daughter has is for her personal injuries. Under the no fault law, a person can sue for serious personal injuries against a driver that causes an accident. Insurance Law § 5104. I am assuming at this point since your daughter was struck by a moving car, she has probably sustained a serious injury.
Diminished Capacity
Since you stated that your daughter ran into the street to retrieve her cat, undoubtedly the driver will blame your daughter for the accident. One possible factor in your daughter’s favor is her age. As mentioned in a prior post, a person who is not an adult might be entitled to special consideration. Drivers have a general duty to look out for and avoid pedestrians in the roadway. Vehicle and Traffic Law § 1146. Furthermore, if the place where the accident occurred was a residential area, the driver would have a greater duty to look out for pedestrians in the roadway.
Emergency Situation
In a prior post, I explained that there are special rules when a person is attempting to rescue another in an emergency situation. In fact, the jury instruction for an emergency rescue of a person actually includes the phrase “danger invites rescue.”
Unfortunately, for your daughter, those special considerations for an emergency rescue would not apply to this case. Your daughter’s cat is not a person. In fact under New York law, a pet is considered chattel or legal property. New York Agricultural Law § 108. Therefore, despite your daughter’s heroic efforts to rescue her cat, she would not be entitled to the special consideration given to people rescuing another person in danger.
Even though the driver may want to argue that this emergency situation of the cat running into the roadway, was not created by the driver themselves. This factor does not matter. Johnson v Hickson, 43 NY2d 906, 403 NYS2d 722 (1978); Voleshen v Coles, 60 AD2d 468, 401 NYS2d 116 (4th Dept 1978). In fact, the driver will probably argue that your daughter was the one that created the emergency situation. This is because your daughter let her cat into the street.
The court will judge your daughter by a “reasonable” person standard. Hart v Scribner, 44 AD2d 59, 353 NYS2d 230 (2d Dept. 1974). So even though the cat going into the street was an emergency situation for your daughter and her cat, it would be up to a jury to decide if it was reasonable for your daughter to run into the street to protect the cat.
By James Santner, Esq.
If you have questions about a similar situation, feel free to contact us. Consultations are free and there is no fee unless we win.