Brooks v. Blanchard

• Decision Date: 31 July 2019
• Docket Number: CA 18–01646,111
• Citation: 174 A.D.3d 1362,105 N.Y.S.3d 682
• Parties: Catherine A. BROOKS and Stephen G. Brooks, Plaintiffs–Appellants, v. Sarah C. BLANCHARD, Defendant–Respondent.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1362
105 N.Y.S.3d 682

Catherine A. BROOKS and Stephen G. Brooks, Plaintiffs–Appellants,
v.
Sarah C. BLANCHARD, Defendant–Respondent.

111
CA 18–01646

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: July 31, 2019

JOHN J. FROMEN, ATTORNEYS AT LAW, SNYDER, MAGAVERN MAGAVERN GRIMM LLP, BUFFALO (EDWARD J. MARKARIAN OF COUNSEL), FOR PLAINTIFFS–APPELLANTS.

SCHNITTER CICCARELLI MILLS PLLC, WILLIAMSVILLE (RYAN J. MILLS OF COUNSEL), FOR DEFENDANT–RESPONDENT.

PRESENT: SMITH, J.P., DEJOSEPH, TROUTMAN, AND WINSLOW, JJ.

105 N.Y.S.3d 684

MEMORANDUM AND ORDER

174 A.D.3d 1362

It is hereby ORDERED that the judgment and order so appealed from is unanimously reversed on the law without costs, the posttrial motion is granted, the verdict is set aside and a new trial is granted.

Memorandum: Plaintiffs commenced this action seeking to recover damages for injuries allegedly sustained by plaintiff Catherine A. Brooks (Catherine) when she was in a vehicle that was struck by a vehicle operated by defendant. Following a trial on the issue of liability, the jury found defendant 10% liable for the accident and Catherine 90% liable. Supreme Court denied plaintiffs' posttrial motion to set aside the verdict and entered a judgment in defendant's favor on the issue of liability on the basis of that verdict. Plaintiffs appeal, and we reverse.

At trial, the parties presented vastly divergent accounts of the manner in which the accident occurred and what happened after the collision. Catherine testified that she was seated in her vehicle, which was parked on the side of the road, when defendant's vehicle side-swiped her stationary vehicle from behind and continued driving. According to defendant's testimony, however, defendant was traveling along the road at the posted speed limit of 30 miles per hour when Catherine's vehicle backed out of a driveway and suddenly entered defendant's lane of travel, thereby causing the collision. Defendant testified that she attempted to avoid Catherine's vehicle by swerving to the left, applying her brakes, and sounding her horn. Plaintiff Stephen G. Brooks (Stephen), on the other hand, testified that he was standing 25 feet away from the location of the accident and that he saw Catherine's vehicle parked

174 A.D.3d 1363

against the curb and he observed defendant's vehicle traveling towards Catherine's parked vehicle at a "faster rate of speed." Stephen further testified that he did not hear the sound of a horn or the screeching of brakes prior to the accident. Also, defendant testified that, although she did not immediately stop after striking Catherine's vehicle, she stopped "at the end of the block" and exchanged contact and insurance information with Stephen. Stephen, however, testified that defendant "took off," and that, after Catherine got out of her vehicle, he got into the vehicle and chased after defendant, beeping the horn, yelling, and flashing his lights. According to Stephen's testimony, defendant turned five times and traveled down many different streets before she finally stopped.

We agree with plaintiffs that the court erred in excluding Stephen's testimony that defendant exhibited indicia of intoxication during their interaction immediately after the accident and that, in his opinion, she was intoxicated. Although defendant's failure to remain at the scene meant that Stephen was the only witness who had an opportunity to observe defendant and interact with her after the accident, the court prohibited Stephen from testifying about his observations of defendant on the ground that he was not an "expert" in signs of intoxication. Contrary to the...