The issue in this case is whether a defendant in a truck accident personal injury case can escape summary judgement after the death of the co-defendant whose actions were the direct cause of the plaintiff’s injuries.
Defendant Stern was an employee of defendant Schor & Rosner. On October 31, 1958, Stern was driving a truck owned by Schor & Rosner when he backed into another vehicle, causing that vehicle to collide with the vehicle occupied by plaintiff McCarthy. As a result, plaintiff McCarthy was injured. McCarthy filed a personal injury lawsuit against Schnor & Rosner, and now moves for summary judgement. The court will grant the motion for summary judgment if the plaintiff can show that there is no genuine dispute as to any material fact, and that he is entitled to judgment as a matter of law.
Defendant Stern, the driver of the truck, died before he was served with the summons and complaint. Defendant Schor & Rosner does not deny the allegations in the complaint that Stern was driving the truck that day. However, Schor & Rosner denies knowing any of the specifics of the accident because the driver is no longer available to testify. Schor & Rosner asked the court permission to not be held to as high a standard of proof for this case because they are unable to know the details that led up to the accident. The court points out that following the accident, the company asked for and obtained a statement from the now deceased driver in reference to the circumstances surrounding the accident. In addition, the court contends that the Schor & Rosner is in fact in possession of an affidavit made by the driver and a copy of the accident report. Thus, the defendant does know the details that led up to the accident.