Morgan v. Toomey

SATZ, Judge.

This is a personal injury action. Plaintiff, Cary Morgan, was struck by a car driven by defendant, Michael Toomey. The jury found defendant 95% at fault and plaintiff 5% at fault. Plaintiff’s judgment was $53,568.87. Defendant appeals. We reverse and remand.

Plaintiff submitted his case on three alternative theories of negligence: defendant drove at excessive speed or failed to keep a careful lookout or failed to swerve. On appeal, defendant contends plaintiff failed to present substantial evidence to support the “lookout” and “failure to swerve” instructions. In effect, defendant…