Once upon a time, a dude entered an intersection and decided to turn left. Problem was, there was another car (lawfully) coming on through. So he crashed into it. Since the female driver had a green light, anyone who drives a car knows - the dude should have yielded right of way.
Enter the defense lawyer.
I file the complaint. The defense lawyer says -dude is not at fault. I bring a motion to kick out the bogus defense. The lawyer then threatens to ask the judge to sanction me for bringing a "frivolous" motion. I ask his supervisors to remove him from the case. They don't.
This is all part of the insurance company's plan. It is called Deny. Delay. Defend. It is also called scorched earth tactics. Designed to wear us plaintiff lawyers down. Unless we have DNA that acts in reverse when confronted by adversity. In which case... Bring. It. On.
Here's the transcript from the hearing. You will be dazzled by the brilliance and logic of the defense lawyer's reasoning. Or maybe not.
MR. SCISCIANI: Your Honor, Counsel for the
17
1 plaintiff is correct, this is a case about a car accident
2 in which the defendant, Matthew K, my client, was indeed
3 turning left and that's when the collision occurred. The
4 scope of undisputed facts, that's it. We don't have any
5 evidence submitted by the plaintiff on Summary Judgment to
6 close the door on contributory fault. She seeks an order
7 characterizing our client, Matthew K as negligent, and
8 the sole cause of the accident. She seeks an order
9 characterizing her own behavior as blameless. What the
10 plaintiff asks for by their Motion for Summary Judgment is
11 provided for in a jury instruction, which underscores the
12 fact that this is a question of fact for the jury. The
13 jury instruction specifically says, and it is quoted in its
14 entirety on Page 10 of our brief, it says, "Statute
15 provides that a driver intending to turn to the left within
16 an intersection shall yield the right-of-way to any vehicle
17 approaching from the opposite direction that is within the
18 intersection or so close thereto as to constitute an
19 immediate hazard." This right-of-way, however, is not
20 absolute but relative. And if we look at Washington case
21 law --
22 MS. KOEHLER: Your Honor, I ask that he
23 complete reading that.
24 MR. SCISCIANI: I'd be happy to. The entire
25 jury instruction is submitted in our brief: "And the duty
18
1 to exercise ordinary care to avoid collisions at
2 intersections rests on both drivers. The primary duty,
3 however, rests upon the driver turning to the left, which
4 must be performed with reasonable regard to the maintenance
5 of a fair margin of safety at all times."
6 If we look at the case law, even the cases relied
7 upon by the plaintiff, there's cases -- there are cases out
8 there, there's one in particular, the case that we cited in
9 our opposition, that involves a pedestrian who was lawfully
10 in a crosswalk with the walk signal. The question of
11 whether that pedestrian should have looked to see if there
12 was traffic that was not going to yield was submitted to
13 the jury. The court underscored the fact that those issues
14 are questions of fact, they're provided for in the jury
15 instructions, and certainly in this case we recognize that
16 our client had the obligation to yield right-of-way. The
17 question, then, is, did the plaintiff have an
18 opportunity -- we've all been cut off at intersections. We
19 can't just steamroll through and plow into the left turning
20 vehicle, get out of our vehicle and blame it. It's not
21 strict liability. The oncoming driver has an obligation.
22 If the jury finds that she had an opportunity to avoid this
23 collision, then there's contributory negligence. Now, it
24 may be a 90-10, it may be an 80-20, may be 70-30, may be
25 95-5.
19
1 The point is, on summary judgment without any
2 evidence submitted by the plaintiff on the issue of
3 contributory fault, the door stays open. The record is
4 devoid of evidence that she took evasive action. As the
5 moving party on Summary Judgment, seeking to close the door
6 on contributory fault, and to seek an order from this court
7 as a matter of law that her behavior, her driving was
8 lawful and blameless, she has to come forward with the
9 evidence to merit such a characterization. There's no
10 evidence -- I've already read before the court the
11 statement from the witness that the vehicles collided.
12 They shed no light on evasive action. In fact, it's devoid
13 of any evidence that Ms. L swerved or braked. From
14 the photographs, it could be reasonably deduced that these
15 cars would not have collided, notwithstanding my client's
16 failure to yield had some evasive action been taken.
17 Now I'm not going to purport to be an accident
18 reconstructionist, and I'm not going to purport to have
19 been there at the accident to characterize what exactly
20 happened. That's for the witnesses, that's for the jury.
21 That's all I have, Your Honor.
22 THE COURT: Counsel?
23 MS. KOEHLER: Your Honor, did you see the
24 photographs of the vehicles? [head on impact]
25 THE COURT: Yes.
20
1 MS. KOEHLER: The defendant has, on a
2 comparative fault claim, which is an affirmative defense, the
3 burden of proof . There is no attempt other than speculation to say
4 that this person, Miss L, going through a green ball
5 on a green light behind another vehicle did anything wrong.
6 For this reason, we believe that Summary Judgment on these
7 facts should be granted.
8 THE COURT: All right. Partial Summary
9 Judgment is granted on liability.
10 MS. KOEHLER: Thank you, Your Honor.
Diagram: By the defendant in his deposition.
