Ferrer v. Harris

• Decision Date: 25 March 1982
• Citation: 449 N.Y.S.2d 162,434 N.E.2d 231,55 N.Y.2d 285
• Parties: , 434 N.E.2d 231 Malikah FERRER, an Infant, by Jase Ferrer, Her Father and Natural Guardian, et al., Respondents, v. Ben HARRIS et al., Appellants.
• Court: New York Court of Appeals Court of Appeals

Page 162

449 N.Y.S.2d 162

55 N.Y.2d 285, 434 N.E.2d 231

Malikah FERRER, an Infant, by Jase Ferrer, Her Father and NaturalGuardian, et al., Respondents, v.Ben HARRIS et al., Appellants.

Court of Appeals of New York.

March 25, 1982.

C. Raymond Nelson, New York City, A. Alexander Pignato, Rockville Centre and Eugene A. Leiman, New York City, for Ben Harris, et al., appellants.

Michael Majewski and Joseph D. Ahearn, New York City, for Hassan J. Javidan, appellant.

Anthony Gentile, Bronxville, Philip M. Damashek, Walter P. Roura and Lewis I. Wolf, New York City, for Malikah Ferrer, respondent.

OPINION OF THE COURT

FUCHSBERG, Judge.

After 3:00 p. m. one sunny afternoon in May, then four-year-old Malikah Ferrer, in the company of her eight-year-old sister, was crossing a Bronx street from between two parked cars when she was struck by an automobile owned by the defendants Ben and Anna Harris and operated by the former.At the time, the girls were headed directly for the defendantHassan Javidan's brightly colored "Mister Softee" motor van, which from a double-parked position was tunefully drawing attention to its wares of frozen custard and ice cream.

(1) The Harrises and Javidan now appeal separately from an order of the Appellate Division, 80 A.D. 759, 439 N.Y.S.2d 298, affirming a judgment entered on a jury verdict against both of them on young Malikah's behalf in the sum of $200,000 with the respective liabilities apportioned under Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 at 75% against the Harrises and 25% against Javidan.¹, ² In the main, the questions these appellants now raise are whether a prima facie case was made out against each of them and whether, as to the Harrises, the trial court erred in refusing to instruct the jury on the effect of an emergency on the reasonableness of Ben Harris' conduct.In addition, it is asserted that all the defendants were prejudiced by the admission of testimony that Malikah's mother repeatedly would enjoin both her daughters "to look both ways and cross at the green and cross at the corner" and instilled in Malikah the idea that she was "never to cross by herself unless someone was with her".For the reasons which follow, while we believe there was enough shown on which to send the case to the jury against all the defendants, since, in our view, the Harris defendants were entitled to a charge on the emergency doctrine, as to these defendants it is appropriate that there be a new trial.Should the Harrises be held liable again, the apportionment issue will also have to be determined de novo.

Turning first to the sufficiency of the proof, in the present posture of the case the facts, of course, must be taken most favorably to the successful plaintiff(Caprara v. Chrysler Corp., 52 N.Y.2d 114, 118, 436 N.Y.S.2d 251, 417 N.E.2d 545).To that end, we first note that Walton Avenue, the scene of the occurrence, is a relatively narrow southbound one-way street, which, after allowing for parked vehicles along each curb, according to police and photographic proof would permit the traffic to flow either comfortably in one traveling lane or crowdedly in two.Between East 164th and East 161st Streets, Walton Avenue is unbroken by any intersecting street.Its east side is bordered by a public park and its west side by apartment houses, in one of which the Ferrer family lived.When the events which are our concern occurred, the "Mister Softee" truck had double-parked abreast of vehicles standing next to the west curb of Walton Avenue at a point some 300 feet south of 164th Street.

It was in this setting that Malikah and her sister, who had been at play in the park in the presence of their mother, began to cross toward the truck.For its part, for the southbound Harris vehicle to pass the point where the ice cream truck was obstructing the westernmost traveling lane, it, of necessity, could confinedly proceed only via the easterly traveling lane, in the process passing close to the row of parked cars on its right.It was these two lanes, the easternmost parking one and the easternmost traveling one, which children coming east to west from the park would have to traverse to reach the truck.

The record reveals ample evidence that Ben Harris knew the area, having worked nearby for years, and, as a result, was familiar with the fact that the combination of the park and apartment buildings meant that children could be expected to be about on a fine May day.More so, as he was to testify, on this very occasion, though he did not remember the ice cream van, he admitted noticing children on the sidewalk and at play when he was still in the area of the last intersection, that at East 164th Street.Indeed, though the maximum legal speed limit was 30 miles per hour, consistent with the caution the presence of children engendered, he claimed that, as he came along, he was proceeding at 15 to 20 miles per hour.He also testified that he saw Malikah step off the sidewalk and run between the parked cars, in response to which he stopped his car within 4 feet, when, as he described it, the child ran into his door.It is basically on this version that the Harrises premise their contentions that their motion to dismiss and, when that failed, their request for a charge on emergency, each in turn should have been granted.

But the plaintiffs' side of the case, though unable to produce any disinterested eyewitness to the operation of the Harris vehicle as it bore down on the point of collision, did not rest on the Harris story.First, they established that, though the driver saw the child as she was just stepping off the curb, he never blew his horn to alert her to his approach.Second, they called a witness, Carolyn Ford, who, while she had not observed the Harris car at an earlier point, was able to describe the impact as one at the front of the car, a version borne out both by an impression of a tire tread found on the child's sneaker and medical proof that the injuries were not scientifically reconcilable with the kind of impact that Harris claimed had taken place.Moreover, the plaintiffs lay stress on the fact that, while the speed limit is 30 miles per hour, even a lesser speed is required when it is "reasonable and prudent under the condition and having regard to the actual potential hazards then existing"(New York City Traffic Regulations, § 60, subd. ); in this case, given conceded awareness of the propinquity and proclivity of the children (seeProsser, Torts p. 170;see, generally, Darting in Front of Automobile, Ann., 113 A.L.R. 528) and the effect of the double-parked ice cream truck on the Harris driver's maneuverability, plaintiffs argued that even 15 to 20 miles per hour was unreasonable.³Obviously, the determination of what was appropriate calls for the application of the proverbial and somewhat flexible reasonable man standard, one which a cross-section of lay persons may be thought to be especially qualified to gauge (seeConway v. O'Brien, 111 F.2d 611, 612(2nd Cir.) ).Perhaps it is the predominance of considerations of this character which in motor vehicle cases have allowed for more latitude in determining the appropriateness of their submission to a jury (seePfaffenbach v. White Plains Express Corp., 17 N.Y.2d 132, 136, 269 N.Y.S.2d 115, 216 N.E.2d 324 ).

Nevertheless, while we therefore hold, as did the Appellate Division, that whether Ben Harris was negligent was a question of fact, it is more than conceivable that a jury could conclude that this defendant was faced with an emergency.For instance, it would be rational for the jury to have adopted a view of the evidence from which it concluded that traveling at 15 to 20 miles per hour was an adequate response to the prevailing circumstances and that the opportunity to learn of and react to the presence of Malikah was too brief and too unexpected to allow time to think of blowing the horn or to make a calculated and intelligent choice as to the best way to avoid or minimize the impending collision, be it by braking, acceleration or otherwise.Against such contingency, it was entitled to judicial guidance on the applicable law.

For, it is common sense and good law that, when one is confronted with a sudden and unexpected event or combination of events which leave little or no time for reflection or deliberate judgment, this itself may be a significant circumstance which, realistically as well as conceptually, should enter into the determination of the reasonableness of the choice of action pursued (seeRossman v. La Grega, 28 N.Y.2d 300, 321 N.Y.S.2d 588, 270 N.E.2d 313;Wagner v. International Ry. Co., 232 N.Y. 176, 133 N.E. 437;Restatement, Torts2d, § 296, subd. ).⁴This is not to say that an emergency automatically absolves one from liability for his...