Bernstein v. City of New York

• Decision Date: 04 June 1987
• Citation: 511 N.E.2d 52,517 N.Y.S.2d 908,69 N.Y.2d 1020
• Parties: , 511 N.E.2d 52 Harold BERNSTEIN, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 908

517 N.Y.S.2d 908

69 N.Y.2d 1020, 511 N.E.2d 52

Harold BERNSTEIN, Respondent, v. CITY OF NEW YORK, Appellant, et al., Defendant.

Court of Appeals of New York.

June 4, 1987.

Peter L. Zimroth, Corp. Counsel (Margaret G. King, New York City, of counsel), for appellant.

Fred R. Profeta, Jr., and Alan B. Katz, New York City, for respondent.

OPINION OF THE COURT MEMORANDUM

The order of the Appellate Division, 121 A.D.2d 953, 505 N.Y.S.2d 563, should be reversed, with costs, and the complaint dismissed.

Plaintiff slipped and fell while crossing an intersection near a Bronx bus stop, and fractured his kneecap. At the trial of his negligence action, plaintiff testified that after attempting to stand up, he slipped again and fell in the same spot. He then swept away "a dusting of powdered snow" on the street and discovered a sheet of ice two-feet long, six- to seven-inches wide and at most a half-inch thick. A field foreman for the New York City Department of Sanitation testified, by deposition, that the Department had done snow removal and salt-spreading on January 13, 14 and 15 in the area where plaintiff fell. Meteorological data introduced by defendant indicated that on January 13-15, 1982, 8 to 10 inches of snow had fallen at two weather stations in New York City--Central Park and La Guardia Airport--and there were ice pellets and a glaze. Prior to that, there had been no snowfall since January 9, when .4 inches fell in Central Park and .2 inches at La Guardia Airport; by the following morning, however, only trace amounts of snow or ice remained on the ground in Central Park, and none at La Guardia. No measurable precipitation fell between January 9 and January 13; throughout that time, the temperature remained below freezing. Plaintiff introduced no evidence of any variation in weather conditions at the scene of the accident.

At the conclusion of the trial, the court charged the jury--without objection by plaintiff--that it could find defendant liable only if it concluded that plaintiff slipped as a result of a hazardous condition that had formed prior to the January 13 snowfall. Thus, by returning a verdict for plaintiff, the jury necessarily found that the sheet of ice on which he had fallen was formed as the result of the January 9 precipitation.

A jury verdict must be based on more than mere speculation or guesswork (Feblot v. New York Times Co., 32 N.Y.2d 486, 494, 346 N.Y.S.2d 256, 299 N.E.2d 672; Digelormo v. Weil, 260 N.Y. 192, 199, 183 N.E. 360). "Where the facts proven show that there are several possible causes of an injury, for one or more of which the defendant was not responsible, and it is just as reasonable and probable that the injury was the result of one cause as the other, plaintiff cannot have a recovery, since he has failed to prove that the negligence of the defendant caused the injury" (Ingersoll v. Liberty Bank, 278 N.Y. 1, 7, 14 N.E.2d 828; see, Feblot v. New York Times Co., 32 N.Y.2d, at 495, 346 N.Y.S.2d 256, 299 N.E.2d 672, supra, citing Digelormo v. Weil, 260 N.Y. 192, 199-200, 183 N.E. 360, supra; see also, Schneider v. Kings Highway Hosp. Center, 67 N.Y.2d 743, 745, 500 N.Y.S.2d 95, 490 N.E.2d 1221). If "there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible" (Digelormo v. Weil, 260 N.Y., at 200, 183 N.E. 360, supra ...