“Wrong Way” Biker Hits “Jay-Walker” on E. 55th: NY Law and NYC Reg Collide Btw. Lex. and Third

A deliveryman drives his  bicycle against traffic on a one way street.  A pedestrian crosses in the middle of the block. The biker hits the jay- walker. Litigation ensues. Both violated the law.  Who is at fault?

Antoinette Montague was struck by an employee  of T&W Restaurant, Inc. while he was making deliveries on a bicycle. The employee was riding the bike against the one-way direction of travel on East 55^th Street between Lexington and Third Avenues-- a violation of the Vehicle and Traffic Law.

T&W contended that Montague jay-walked mid-block — a violation of the New York City Traffic Rules and Regulations —and that she was the proximate cause of her own injuries. And, in any event, the deliveryman was acting outside the scope of his employment.

NYCTRR § 4-04(c)(3) forbids a pedestrian from crossing a New York City roadway where traffic signals "are in operation at both intersections bordering the block," except at a crosswalk. VTL § 1127 requires that vehicles be driven "only in the direction designated" on one-way streets—and a bicyclist is subject to all of the provisions of the VTL.

The violation of a state law imposing a specific duty constitutes negligence per se. But the unexcused violation of a local regulation is only some evidence of negligence, provided that such violation was a proximate cause of the accident. Violations of the VTL, a state statute, constitutes negligence per-se. Violations of the NYCTRR, a local ordinance, constitutes only some evidence of negligence, not negligence per-se.

A plaintiff moving for summary judgment under a theory of negligence must prove the defendant owed plaintiff a duty of care, breached that duty, and the breach proximately caused the plaintiff's injuries. To hold a defendant-employer vicariously liable for its employee's negligent action, a plaintiff bears the additional burden of establishing that the employee's negligent act was within the scope of his or her employment.

In this case, the uncontroverted evidence established that the T&W’s deliveryman violated VTL § 1127 in traveling down a one-way street against the flow of traffic, constituting negligence per-se. And Montague violated NYCTRR § 404(c)(3) by crossing a city street, bookended by traffic signals, outside of a crosswalk.  Montague’s violation did not constitute negligence per se, but rather was some evidence of negligence should a jury find that her violation proximately caused her injuries.

But the deliveryman’s per se negligence did not necessarily establish that T&W’s negligence was the proximate cause of the accident. The issue of proximate causation remained unsettled. Both Montague and T&W contended the other violated traffic laws and ordinances. And both contended that the other's violation caused the accident. Thus, the issue of causation of the accident remained a question of fact, which was reserved for the jury. Under those circumstances, the deliveryman’s violation of VTL § 1127 might render T&W totally at fault, partially at fault, or not at fault at all. And Montague was still required to establish causation.

T&W’s argument that the deliveryman was acting outside the scope of his employment by traveling against one-way was academic (for the moment) in light of Montague’s failure to establish causation.

An employer is liable for the negligence of an employee when the employee acts within the scope of the employment at the time the tort is committed. The scope of employment includes acts which are reasonably incidental or attributable to the act directed by the employer. Stated differently, an employer is no less liable because the employer has not specifically directed the employee's negligent or wrong action, if the employee has taken an action reasonably related to the employee's employment.

An employer is liable for the employee's act done in the scope of his or her employment, no matter how irregularly. Thus, the issue becomes one tied to foreseeability — whether the employee's general type of conduct may have been reasonably expected by the employer, although the precise act or manner of injury need not be foreseeable. Such inquiry was inherently fact specific. And it was also for the jury to determine whether the deliveryman was acting within the scope of his employment when he was biking in the wrong direction.

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