What do Buggles, George Orwell, Pappas v New York City Tr. Auth. , and Zhong v Matranga have in common? They all recognize the impact of the medium of video.
As technology has advanced in the last ten years, so has the ubiquity of video recordings in our daily lives. Videos aren’t just for Youtube, Tik Tok, and Instagram posting. The medium has found its way into summary judgment motions, too. The decisions in Zhong and Pappas are two recent examples of the power of video recordings.
The facts in Pappas show that, without a video recording, the case would have been a garden-variety motor-vehicle accident with conflicting testimony. The personal-injury action stemmed from a rear-end collision in which the defendant bus driver rear-ended the vehicle the plaintiff George Pappas was driving. George’s wife Donna was a passenger in the car. Both plaintiffs separately testified that they had been stopped for 5 to 10 seconds when the bus struck them from the rear without warning. George testified that he had stopped the vehicle because the traffic light was red.
The bus driver told a different story. He testified at his deposition that the accident occurred because the plaintiffs’ vehicle moved into the bus’s lane in front of the bus. Without warning, the plaintiffs abruptly stopped in front of the bus even though a green light was is in their favor.
The defendants (the bus driver and the owner of the bus) moved for summary judgment to dismiss the negligence action based on the emergency doctrine. Considering the conflicting testimony, the Second Department noted that, without more, triable of issues existed on how the accident happened and who was at fault. The Second Department further noted, however, that the bus surveillance video, which the defendants submitted in support of their motion, eliminated any triable issues of fact. The Court noted that the video recording supported the bus driver’s version of how the accident happened, concluding that the bus operator was confronted with an emergency not of his own making and was left with “virtually no opportunity to avoid a collision . . . .” Accordingly, the Court affirmed Supreme Court’s grant of summary judgment dismissing the complaint.
The video recording in Zhong had an equally damaging result on a motion for summary judgment. The case concerned a bicycle/pedestrian accident. The defendant in Zhong was riding his bicycle in New York City. The collision with the plaintiff pedestrian happened as the defendant was riding his bicycle with the right-of-way through an intersection. He traveled in the marked bicycle lane at a speed of approximately 14 miles per hour, well within the posted speed limit and within the average cruising speed for bicycle traffic proceeding through the intersection.
The accident happened when the plaintiff suddenly entered the marked bicycle lane against a red light for pedestrian traffic and within a few feet of the defendant. The defendant testified at his deposition that when the plaintiff took two steps into the bicycle lane, he (1) “immediately braked and yelled ‘watch out’”; collided with her in the middle of the bicycle lane approximately two seconds later; (3) didn’t have time to stop, change lanes or go around the plaintiff; and (4) jammed on the brakes and yelled at the plaintiff.
The defendant moved for summary judgment, proffering an expert affidavit in which the expert opined on he numerous reasons why the defendant was not negligent. In opposition, the plaintiff also proffered an expert affidavit in which the expert opined that even if the defendant was traveling under the speed limit, he was still negligent because the defendant bicyclist was traveling much faster than the three other bicyclists riding near him. Without a video, this would have been one of those battle-of-the-experts situations where the non-movant raised triable issues of fact to defeat a summary judgment motion.
The parties had proffered a copy of a video of the intersection that captured the incident. The video was the deciding factor in the case. The First Department concluded, “There is only one version of the accident: the one shown in the video, described in [the] defendant’s testimony, and corroborated by [the] plaintiff.” Granting the defendant’s summary judgment motion, the Court reasoned that the video showed that the plaintiff (1) did not look in the direction of the defendant, (2) could not state the distance between her and then defendant when she stepped off the curb, (3) did not remember being struck by the bicycle, and (4) only remembered someone yelling “watch out” while “very, very close” to her right ear. The First Department noted that the plaintiff’s testimony synced with the defendant’s testimony that the plaintiff darted out onto the bicycle’s path when he was within a few feet from her.
The First Department concluded that the plaintiff failed to raise an issue of fact, noting there was no evidence that the defendant operated his bicycle at an excessive rate of speed, in a negligent manner, or without due care to avoid colliding with any pedestrian.
For plaintiffs and defendants alike, the Pappas and Zhong decisions are reminders remind to request all available, relevant video recordings in their respective discovery demands. Early investigation of an accident will help attorneys unearth recordings of the relevant accident or incident. As the Pappas and Zhong decisions demonstrate, a video recording can mean the difference between a dismissal and going to trial with conflicting fact and expert witness testimony.
Thank you to my partner Brendan Fitzpatrick for bringing these cases to my attention.
(40 years ago this week, the Australian band Men at Work was fighting its way up the Billboard 100 charts with the No. 12 song, "Who Can It Be Now?" Cue the obligatory but awesome saxophone solo)
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