Perez v. Nichols

MARING, Justice,

concurring specially.

[¶ 15] A person driving a motor vehicle has a duty to keep a proper lookout and failure to do so is negligence. In this case, Perez claims she saw the other car eight to ten car lengths away traveling 50 to 70 miles per hour and yelled at Nichols. However, what is lacking in this case is evidence that even if Nichols had seen the other car when Perez saw it, he could have avoided the collision or taken any evasive action. Clearly, under our comparative fault law, a driver who enters an intersection on a green light may be found negligent if there is evidence that the driver had the opportunity to see and recognize the failure of another driver to yield and had the opportunity to avoid the collision. Here, there is evidence the driver, Nichols, had the opportunity to see and recognize the failure of the other driver to yield the right-of-way, but there is no evidence that even had he kept a proper lookout, there was an opportunity to avoid the collision. It is the lack of that evidence that justifies the summary judgment.

[¶ 16] I, therefore, concur specially.

[¶ 17] Máry Muehlen Maring