On February 19, 2005 a commercial truck accident occurred near the intersection of First Avenue and 78th Street. A pedestrian was attempting to cross the street on 78th Street. A commercial truck was attempting a left turn from 78th Street onto First Avenue heading north. The Queens pedestrian was struck by the rear left wheel of the commercial truck while he was inside the confines of the crosswalk. While this would seem to be a straightforward account of an accident, there are still questions to be answered. Depending on the way you evaluate an incident, the fault can lie with either party.
The victim states that the truck driver is responsible for the accident and his injuries because he was lawfully crossing the street inside the crosswalk when the commercial truck accident occurred. The commercial company that owns the truck claims that the pedestrian was intoxicated and that the truck never hit him. They claim that he walked into the back wheels of the truck while he was intoxicated.
The question is considered as to whether a pedestrian or a motorist has the right of way at an intersection and code 34 RCNY § 4-04(b)(1) clearly states that “the operator of a vehicle shall yield the right of way to a pedestrian crossing a roadway within a crosswalk when the pedestrian is in the path of the vehicle or is approaching so closely thereto as to be in danger.” Also Vehicle and Traffic Law §115(a) provides “when traffic-control signals are not in place or not in operation the driver of a vehicle shall yield the right of way, slowing down or stopping if need be to so yield, to a pedestrian crossing the roadway within a crosswalk on the roadway upon which the vehicle is traveling. . .” Several expert witnesses were offered who stated that had the driver been using due caution and looking in his mirrors for pedestrians, the accident would not have occurred. They stated that they believed that the truck driver should have been able to stop the truck which would have prevented injury to the pedestrian.
The commercial truck owners presented a doctor who worked at the emergency room where the victim had been taken following the commercial truck accident. He stated that in his professional opinion, the victim had been intoxicated when he examined him in the emergency room. However, since there was no blood alcohol test administered, it is only the doctor’s personal observations that led him to believe the state of the victim was intoxicated. There is no medical proof that the victim was intoxicated at the time of the accident or to what degree, if he had been drinking that he was impaired. Especially, since another witness who stated that he had seen the victim just minutes before the commercial truck accident and that he had not observed any visual signs that the pedestrian was drunk. In court, one witness does not necessarily count out another witness that says the opposite. Each witness must be evaluated based on the veracity of their testimony.
There was discussion brought up at the trial that alleged that a piece of the back of the commercial truck was sticking out and that it is that faulty part that struck the pedestrian. Since each commercial vehicle company maintains a Vehicle Condition Report for each vehicle the victim requested a copy of the Vehicle Condition Report for the truck that hit him. Also contained in this report would be the condition of the vehicle as a whole, to include the brakes, horns, mirror, etc. Each commercial truck is also required to have a CADEC electronic recording device for this company. This device consists of an electronic recording cartridge and a recorder. The electronic cartridge records information from the vehicle such as the speed which is recorded at given intervals set by the company. The victim’s requests for this information have been ignored repeatedly. Rather, the company provided him with sample reports that did not relate to the specific vehicle involved in the accident. Some of the witnesses also alleged that the truck was travelling at an excessive speed at the time of the commercial truck accident. The records from the CADEC and the Vehicle Condition Report would then become even more important to the outcome of this trial. However, the company maintains that due to a technical glitch, the CADEC electronic cartridge from the vehicle in question did not record any information on the date of the accident. The driver stated that he handed his Vehicle Condition Report in to his supervisor at the end of his shift, but the company claims that they cannot locate the Vehicle Condition Report for that vehicle for the date of the accident. The victim presents the supposition that the company has intentionally spoliated evidence by misplacing the Vehicle Condition Report and failing to preserve the CADEC electronic report.
Under New York law, “spoliation sanctions are appropriate where a litigant, intentionally or negligently, disposes of crucial items of evidence involved in an accident before the adversary has an opportunity to inspect them.” Kirkland v New York City Housing Authority, 666 NYS2d 609 [1 Dept 1997]
The company submitted copies of depositions that stated that it is not unusual for the company to lose Vehicle Condition Reports. They also stated that their CADEC electronic devices have a 25% failure rate. Since there is no evidence to imply that the company intentionally disposed of the evidence from these sources, the court advised that the company must provide to the victim the maintenance records concerning the vehicle that was involved in the accident.
The court decided that the Long Island company’s motion requesting a summary judgment on the issue of liability is denied and that the victim’s motion to strike the company’s answer for spoliation of evidence is also denied except that the company is required to produce a copy of the maintenance records on the vehicle that was involved in the accident.