United States Court of Appeals For the Second Circuit ________

AUGUST TERM, 2022

ARGUED: APRIL 20, 2023 DECIDED: OCTOBER 5, 2023

No. 22-995

KEVIN DOOLEY, Plaintiff-Appellant,

v.

UNITED STATES OF AMERICA, Defendant-Appellee. ________

Appeal from the United States District Court for Southern District of New York 1:18-cv-7136 – Gorenstein, Magistrate Judge. ________

Before: CALABRESI, PARK, and LEE, Circuit Judges.

________ 22-995 Dooley v. United States

Plaintiff-appellant Kevin Dooley (“Dooley”) appeals from a judgment of the United States District Court for the Southern District of New York (Gorenstein, M.J.). While riding his bicycle, Dooley collided with the open door of a car owned by the United States and operated by a United States employee. Dooley brought a claim for negligence against the United States, pursuant to the Federal Tort Claims Act. The district court found the United States liable, but concluded Dooley also acted negligently and was therefore partially liable. On appeal, Dooley contends, inter alia, that the district court erred in finding his negligence caused the accident. We agree. We therefore VACATE and REMAND.

Judge Park dissents in a separate opinion.

MICHAEL AVILES, Michael J. Aviles & Associates, LLC, New York, NY, in

support of Plaintiff-Appellant.

JENNIFER JUDE, Assistant United States Attorney (Christopher Connelly,

Assistant United States Attorney, on the brief), for Damien Williams,

United States Attorney for the Southern District of New York, New

York, NY.

CALABRESI, Circuit Judge:

This case arises from a dooring accident: a delivery man was riding his bicycle down Burke Avenue in the Bronx, when he hit the interior of the open door

2 22-995 Dooley v. United States of a U.S. government car parked by the curb. Because the car was owned by the federal government and was driven by a federal employee in the course of his employment, the plaintiff brought a claim for negligence against the United States pursuant to the Federal Tort Claims Act (“FTCA”). The district court found that the government employee acted negligently by opening the car door without checking for incoming traffic; it also concluded that the plaintiff’s conduct was comparatively negligent and assigned 40% liability to the plaintiff. Under New York law, which governs this case, a court will find a plaintiff comparatively negligent, and reduce a damages award accordingly, only if a plaintiff’s negligence was a proximate cause of the accident. 1 A defendant, furthermore, bears the burden of establishing both that a plaintiff’s conduct was negligent and that a plaintiff’s negligence was a proximate cause of the injury.

1 Causation is typically described as having two components, causation in fact—a showing that the accident would not have occurred but for the plaintiff’s wrong—and proximity—a showing that the plaintiff’s wrong was sufficiently close in and significant in time, space, and foreseeability as to justify the plaintiff’s responsibility. See W. Page Keeton, et al., Prosser & Keeton on Law of Torts §§ 41-42, at 263-65, 272–73 (5th ed. 1984). At times, New York courts have, perhaps confusingly, united these two components and spoken of