A Tale of Crossing Guards

“My child was struck by a car while walking home from school.  Shouldn’t the City also be responsible for the accident as well as the driver of the car that struck my child for failing to provide crossing guards so children can get home safely on busy New York Streets?”

As with most questions presented, the answer really lies with the details of the accident if the City is negligent for failing to provide crossing guards. The lead case with crossing guard accidents is probably Florence v Goldberg, 44 NY2d 189 (1978).  This was a 1978 case in which a jury found the City responsible for failing to replace a civilian crossing guard assigned to a busy Brooklyn intersection who called in sick.  The 6 year old plaintiff was struck walking home.  The key fact in the case was the intersection was protected by a crossing guard for the first two weeks of school.  The plaintiff’s mother accompanied the plaintiff for the first two weeks of school.  She then accepted a job after two weeks and relied on the crossing guard to help her child get home safely.

The Court found that the crossing guard created a special duty of the police to insure the child would get home safely.  But the Court repeated the rule that there is no general duty to insure citizens are never the victims of accidents or crimes. Municipalities have limited resources so they are not responsible for every act violating its citizens.  A mugging victim cannot claim the City should have had more of a police presence to prevent a crime from occurring.  Similary, if an adult was struck in that busy Brooklyn intersection, there would be no claim because there was no special relationship between the vicitim and the police force.  Similarly, if the young victim in the Florence case was injured by a bandit who beat the child up or by a friend who pushed him down, there would be no claim.  The civilian crossing guard was only there to insure safety against cars in the intersection, not against all tragedies that can occurr on a City street.

The question, as it is written, never states if the intersection in question was normally covered by crossing guards or not. If the intersection in question never had a crossing guard to begin with, then the City would not be responsible because no special duty existed bewteen the City and your child.

Comparative Neglience

“I was going straight at an intersection when a car suddenly turned left in front of me, damaging my car.  The police came and made out a report saying I was going straight.  But the insurance company for the driver making a left turn does not want to pay to fix my car.  Can the insurance company do this?”

The short answer is yes.

The insurance company is only obligated to make a reasonable attempt to settle a claim. This means that the insurance company can use every legal defense available to the driver they insure.

In New York, we live in a state that is governed by “comparative negligence.”  This means that the insurance company only has to pay for the damage for which their insured is legally obligated to pay.  If their insured is 100% responsible for the accident, then the insurance company must pay for 100% of the damage. If their insured is 50% responsible for the accident, then the insurance company will only pay for half of the damage.  CPLR 1411. In the case of left turn, even though a driver going straight has the right of way, the driver going straight also has an obligation to see what there is to be seen an avoid the collision.  The driver going straight may be partially at fault.  It is not clear what was told to the police nor what may have been written in accident reports sent to the insurance company.  But there are factors which could give the insurance company a reason to offer to pay less than 100% for the damage.

Collision Coverage

If you have a collision endorsement on your own car, we always advise clients to put the property damage claim through your collision endorsement.  You may not get all of your damages paid up front. But by using your collision endorsement, you allow your insurance company to fight the other insurance company on your behalf.  If your insurance company is successful fighting the other insurance company, you could get back your entire deductible.  Furthermore, your insurance company is in a much better position to fight an insurance company than you are.  If you fought this claim yourself, you would have to file a summons in court and be your own lawyer against an insurance company lawyer.  This would not be a fair fight.