Passenger Opens Door Of Parked Car And Knocks Down Pedestrian On Sidewalk: Held Not “Use And Operation”

In the Matter of the Arbitration between: Nu Age Medical Solutions, Inc. and  American Transit Insurance Company

Edited by Lawrence N. Rogak

In this No-Fault arbitration, the claimant was a pedestrian standing on the sidewalk saying goodbye to the occupant of a car.  When the occupant opened the car door to step out to speak to the claimant, she knocked him down and he was injured.  The claim was denied on the grounds that it did not occur as part of the use or operation of a motor vehicle.  The No Fault arbitrator agreed.­—LNR

The Assignor VB was injured in a motor vehicle accident that occurred on 4/15/17. VB was a 46-year-old female pedestrian at the time of accident. VB’s injuries served as the impetus for treatment.

The services in dispute are comprised of durable medical equipment (hereinafter “DME”) dispensed from 6/4/17-7/15/17. Respondent has denied the claim asserting that the claimant’s injuries did not arise out of the use or operation of the insured vehicle. The issue to be decided is the validity of Respondent’s use or operation defense.

No-fault first-party benefits are available only when the motor vehicle is the actual instrumentality that causes the injury plaintiff seeks reimbursement for. Walton v. Lumbermens Mut. Co., 88 N.Y.2d 211, 644 N.Y.S.2d 133 (Ct. App. 1996). The vehicle must be a proximate cause of the injury before the absolute liability imposed by the statute arises. Any other rule would permit recovery for claims based on back strains, slip-and-fall injuries, and other similar injuries occurring while the vehicle is being used but are wholly unrelated to its use.

To be a proximate cause of the injury, the use of the motor vehicle must be closely related to the injury. Rivera v. Outstanding Transp., Inc., 39 Misc.3d 1228 (A), 971 N.Y.S.2d 74 (Sup. Ct., Kings County, May 7, 2013).

Proximate cause is not established merely because injuries occurred while entering or exiting a vehicle.  More than occupancy is required to establish a causal link between a motor vehicle and a claimant’s injuries. If a claimant’s injuries are not a result of a collision or movement of the vehicle, nor were they caused by a defect in or failure of the vehicle or any of its parts, then causality will not be established.

In the instant matter Respondent has submitted an MV-104 and the affidavit of Felix Guerrero in support of its defense that the claimant’s injuries did not arise out of use or operation of the vehicle involved in the incident underlying this claim. Mr. Guerrero was the driver of the vehicle involved in the underlying incident. Mr. Guerrero’s affidavit makes clear that he was the driver of the vehicle, that the claimant was knocked down when an occupant of the vehicle opened their passenger door into the claimant just before they were to leave the location of the incident, and that a police officer was called to the scene and made no report based on what had transpired.

Mr. Guerrero’s affidavit further makes clear that the vehicle was not in motion when the claimant was allegedly injured, that it was a passenger Mr. Guerrero was picking up that opened the car door into the claimant and caused the knockdown, and that the claimant elected to stand directly near the door that stuck her when an occupant opened the car door.

Based on the foregoing, it is clear that the claimant’s injuries did not arise out of the use or operation of the vehicle. The vehicle was not closely related to the injury claimant suffered as the door was opened by an occupant into the claimant, with said claimant electing to stand directly near the door while they asked the occupant to exit and say goodbye to them as set forth in Mr. Guerrero’s affidavit. Furthermore, the claimant’s injuries occurred while the vehicle was in use but were wholly unrelated to its use. The vehicle was at a stop, the claimant’s injuries were not a result of a defect in the vehicle or any of its constituent parts, and causality does not attach simply because an individual was exiting the vehicle when the claimant was allegedly injured.

Applicant argues that the door striking the claimant is enough on its own to overcome Respondent’s asserted defense. The case law on this issue is inapposite with Applicant’s position. The vehicle cannot be said to have been closely related to the claimant’s injuries based on Mr. Guerrero’s recitation of the events leading up to the claimant’s fall and purported injury. The vehicle was not the instrumentality that caused the claimant’s injuries pursuant to the authority cited to herein. In short, the underlying incident here is not the type of motor vehicle “accident” the Legislature contemplated when the No-Fault Law was drafted and enacted. As such, Respondent’s denial will be sustained.

Accordingly, Applicant’s claim is denied in its entirety.
AAA Case No. 17-17-1072-4703
Applicant’s File No. SS-51978
Ritesh Mallick, arbitrator
Award date: 7/31/2018