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Recently, The New York Post reported on the audacious defense filing in the Bob Simon wrongful death lawsuit, arising from the fatal limousine crash of February 11, 2015. Despite eyewitness accounts of the driver's erratic maneuvers prior to crashing into fixed median barriers, Skyline Credit Ride claims in its Manhattan Supreme Court filing that Simon "assumed the risk" by riding in their Lincoln Town Car. The company goes on to assert that Simon "failed to use or misused available seat belts, and thereby contributed to the alleged injuries."

As plaintiffs' attorneys in car accident cases, we often face defendants who attempt to shift blame from themselves onto our clients. Assumption of risk and comparative negligence are two legal theories for doing just that, but they hardly seem appropriate in this case.

First, assumption of risk is a doctrine meant to protect activities in which risk of bodily injury is integral to the activity. Skydiving, football, horseback riding, water skiing: these recreational activities are always risky no matter how carefully the moderators plan for the participants' safety. Unless public policy protects the activity, litigation could make them extinct. The same logic does not apply to riding in the back of a limo, where the major selling points are luxury and comfort.

Secondly, assumption of risk requires the defendant to prove that the plaintiff had sufficient knowledge of the risk to comprehend and appreciate the danger. Now, did the danger for Simon arise because he was in the back of a Lincoln Town Car on a Manhattan highway, or because he was in Skyline Credit Ride's Town Car, driven by Abdul Reshad Fedahi, who The Post explains "had nine license suspensions and two speeding convictions on his record - and was driving with one hand because his right arm had been rendered useless due to a suicide attempt." It would be hard for Skyline to argue that Mr. Simon had specific knowledge of the driving record, mental state and physical incapacity of the driver Skyline had assigned him.

As for comparative negligence, New York does allow a seat belt defense. If the defendant can prove through competent evidence that there is a causal connection between a plaintiff's failure to wear a seat belt and the injuries he sustained, recovery for the injuries can be reduced. In other words, if the defense shows that Mr. Simon would not have been fatally injured if he had chosen to wear a seat belt, New York's comparative fault law would come into effect.

If you have questions about your car accident, the knowledgeable attorneys at Rubin & Licatesi, P.C. are here to help. For answers to your questions on assumption or risk, comparative fault or any aspect of the law pertinent to your case, schedule a free consultation by calling us at 516-227-2662 or contacting our Brooklyn office online.

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Rubin & Licatesi, P.C.
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