I Swerved to Opposite Lane to avoid a child - NYC Summons Issued.... - Page 4

crosvs · #31 08-10-2009, 12:27 AM

dammit, just lost everything i typed:

first, my necessary disclaimer: THIS DOES NOT CONSTITUTE LEGAL ADVICE NOR SHOULD IT BE INTERPRETED OR CONSTRUED AS SUCH NOR DOES THIS FORM AN ATTORNEY-CLIENT RELATIONSHIP

The issue is not whether you were following too close, as some have suggested. The issue is whether, GIVEN that you WERE following too close, you were reckless in how you acted?

The emergency doctrine avoids liability when D acts out of necessity to avoid a greater harm. Here, you were following too closely to avoid stopping without striking the car ahead and potentially causing the car ahead from hitting the kid. The question is therefore whether a reasonably prudent person in your position would have acted in like fashion?

In Cordas v. Peerless Transportation Co. (27 N.Y.S.2d 198), a taxi driver held at gunpoint slammed on the brakes to dislodge his assailant and then jumped out of the car as it was still rolling forward, after which it drove up a sidewalk and struck a mother and her child. Held, no liability.

In a classic MBE fact pattern, man swerves over double-yellow to avoid striking a kid who jumped into the street. Held, not liable as breaking the law was necessary to avoid the greater harm of hurting the child.

Finally: if it is argued that your recklessness was due to the fact that you swerved back INTO your lane, thereby risking injury to the child again, this argument is baseless -- presumably the child had already exited the street and was already safely on the sidewalk?? Or (a) you wouldn't have done it and (b) you would have hit him! Not to mention, as you say:

Quote:

The reason I didn't was because I would have been stopped in the opposite lane: making me vunerable to getting hit by any oncoming traffic. However, that is a very valid argument.

In my opinion, you have a solid argument. Just go to court, have fun with it, arnd argue!

AGAIN: THIS DOES NOT CONSTITUTE LEGAL ADVICE NOR SHOULD IT BE INTERPRETED OR CONSTRUED AS SUCH NOR DOES THIS FORM AN ATTORNEY-CLIENT RELATIONSHIP

Sponsored Links

Viperfreak2 · #32 08-10-2009, 08:10 AM

In my opinion, his soul will be better off (for all eternity) to accept responsibility. You can't argue on judgement day. I know, that's a religious opinion. I can't help it.

Tleong · #33 08-10-2009, 09:38 AM

Crosvs - your post described exactly what I have been trying to say except in the language of the law. That is the reason why I think having a lawyer to reiterate my story in the court of law would do me more justice. Thank you so much for the law advice - I will certainly reread your post prior to the court date... whenever that will be

Viperfreak - I'm not quite sure what you mean by my soul? ... and all of eternity?...

Viperfreak2 · #34 08-10-2009, 10:25 AM

My religion (and I am not trying to turn this into a religious debate!) says you should never try to get out of trouble here on earth, because you will be judged on every word, thought, and action in the after-life.

I go through life with the view that each thing that happens to you is a test. God gives you little pieces of 'power' (for lack of a better word) and watches how you use them. Let's say you just cut in line at Disney World. It wasn't intentional, but when you realized there were other people behind you and you now comprehend what happened, you decided to stay put. Why not, you are certainly not going to hell for that! You are just taking advantage at others expense. Security comes over to ask you to step to the back of the line. Do you argue the point (like you will do in the NY court, I made a mistake but it's really not my fault!) or do you accept the responsibility for doing the wrong thing? Do you hire a lawyer to sue Disney for what you think was harassment?

Lots of questions. One answer: If you were far enough back from the car in front of you, it would not have happened. You would have put on the brakes and been able to stop without swerving. The cop saw what you did and decided to write a ticket. I'll bet the paying the fine will be way lower than any attempt to get out of it. The judges have been-there done-that seen it all before kinda people. Just like the final Judge.

Just my opinion. There was a time in my life when I would have done anything to get out of a ticket.

Tleong · #35 08-10-2009, 10:47 AM

Viperfreak2 - I agree with you in a sense to accept responsibility when you are clearly at fault, however, I feel that I am being punished for being a doing what I believe was the right thing. Even after the whole incident, I still firmly believe my actions were appropriate given the circumstances. However, your argument about following the car too closely is a very valid argument. While I was not distancing myself from the car ahead of me, my distance was normal for a "NYC driver". Those who drive in NYC will understand what I am talking about. While the standards of driving between NYC and other places are vastly different, it does not make one right or wrong - It is just simply different.

As far as the payment is concerned - I am not concerned with the fine, as much as I am with the points and insurance hikes that "might" come along with it.

Your take on my situation based on your relgious views is quite interesting. However, it begs the question of another example - "If a good samaritan endangers his/her life while saving Person A from a burning house, but in doing so is sued by Person A for causing physical harm to Person A. Should the good samaritan simply plead guilty?"

Viperfreak2 · #36 08-10-2009, 11:26 AM

Your example is fair. If you truly believe you were correct, then that is all you need.

I normally don't post Bible quotes, because each person reads and interprets them in their own way:

Fear none of those things which thou shalt suffer: behold, the devil shall cast some of you into prison, that ye may be tried; and ye shall have tribulation ten days: be thou faithful unto death, and I will give thee a crown of life.

JCL · #37 08-10-2009, 01:02 PM

crosvs:

While I am sure that everything you wrote has a basis in law, it illustrates why some get very frustrated with lawyers. I won't go into the religious context covered in other posts, but how is taking responsibility for one's actions wrong?

Quote:

Originally Posted by crosvs

The issue is not whether you were following too close, as some have suggested. The issue is whether, GIVEN that you WERE following too close, you were reckless in how you acted?

It can not denied that the OP contributed to the incident by following too close, whether or not that is common practice in NY. The OP wasn't charged with being reckless, he was charged with driving in the wrong lane.

Quote:

Originally Posted by crosvs

The question is therefore whether a reasonably prudent person in your position would have acted in like fashion?

Swerving around a child standing in the road doesn't sound prudent, but that may just be me.

Quote:

Originally Posted by crosvs

Finally: if it is argued that your recklessness was due to the fact that you swerved back INTO your lane, thereby risking injury to the child again, this argument is baseless -- presumably the child had already exited the street and was already safely on the sidewalk??

I didn't say it was reckless, I said that it constituted driving in the wrong lane, which is what he was cited for. The OP referred to the child as standing in the road like a deer in the headlights, and that he swerved back in front of the stopped car and the child. He didn't want to hit the stopped car because it would have pushed the car into the child. Thus, the child was in the roadway. QED.

Quote:

Originally Posted by crosvs

Just go to court, have fun with it, and argue!

Because judges really like to hear arguments from citizens who claim that they are not responsible for their actions. It speeds up the legal system, reduces cost for everyone, and employs lawyers. All of these are very noble goals. There is always the chance, in your scenario, that the judge will see right through the BS, and give the OP a chance to do what you are advocating, argue in court. I don't understand why that would be easier and cheaper that just accepting responsibility, apologizing, explaining that it was a bad judgement, and that he has learned from it. That is much more likely to serve the OP well, in my non-legal opinion.

Tleong · #38 08-10-2009, 01:16 PM

JCL - In New York, a moving violation allows only two options for the person cited: Either plead guilty and accept any punishment the judge gives you (punishment is not written on the ticket) or plead not guilty and appear in court to state your case. If I were to plead guilty, there would be no "explaining" to the judge my side of the story, but simply accepting responsibility for a violation that I felt was justified. Pleading guilty automatically denies you a chance to state your case - in my situation, the judge would give whatever punishment he/she deems proper for driving in the wrong lane. The judge would NOT even know about the child or the car in front of me, but only understand the violation as it is written in the paper.

However, if I plead not guilty and appear in court - I can state my case there. The police officer who issued the ticket will also have the option to appear in court - whom I believe will agree with me that there WAS a child and a car during the incident. The only difference between the officer and my iteration will most likely be the sequence of events.

Viperfreak2 · #39 08-10-2009, 01:30 PM

Sounds similar to South Carolina. Reminds me of a story a friend told me:

She got a traffic ticket, and showed up to court. The judge announced loudly "everyone who wants to plead guilty, move to the right side of the room. Everyone who wants to plead not-guilty move to the left" They did as instructed. "Now, everyone on the right, your fine and points will be cut in half, step out and pay the clerk. Everyone on the left, (slams the gavel) GUILTY. Your fines and points are now double, step to the back and pay the clerk!"

Tleong · #40 08-10-2009, 02:11 PM

Quote:

Originally Posted by Viperfreak2

Sounds similar to South Carolina. Reminds me of a story a friend told me:

She got a traffic ticket, and showed up to court. The judge announced loudly "everyone who wants to plead guilty, move to the right side of the room. Everyone who wants to plead not-guilty move to the left" They did as instructed. "Now, everyone on the right, your fine and points will be cut in half, step out and pay the clerk. Everyone on the left, (slams the gavel) GUILTY. Your fines and points are now double, step to the back and pay the clerk!"

Sponsored Links