Fizette v. Kuhn, 1

• Decision Date: 05 February 1993
• Docket Number: No. 1,1
• Citation: 594 N.Y.S.2d 480,190 A.D.2d 1051
• Parties: Gordon M. FIZETTE, Appellant, v. Julie L. (Kelly) KUHN and Janice N. Kelly, Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 480

594 N.Y.S.2d 480

190 A.D.2d 1051

Gordon M. FIZETTE, Appellant, v. Julie L. (Kelly) KUHN and Janice N. Kelly, Respondents. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Feb. 5, 1993.

Jackson, Wilson & Douglas by Jon Louis Wilson, Lockport, for appellant.

Canale, Madden and Burke, P.C. by John Canale, Buffalo, for respondents.

Before CALLAHAN, J.P., and GREEN, LAWTON, BOEHM and DOERR, JJ.

MEMORANDUM:

Upon our review of the record, we conclude that the jury's determination that defendant Julie Kuhn was negligent is supported by the evidence. The jury's determination that defendant's negligence was not a proximate cause of the accident, however, is against the weight of the evidence. The evidence establishes that defendant Kuhn was operating her vehicle on an icy road in such a manner as to be unable to avoid hitting another vehicle stopped in the road as a result of a prior accident. Although the issue of proximate cause is generally for the fact finder to resolve (Derdiarian v. Felix Contr. Corp., 51 N.Y.2d 308, 315, 434 N.Y.S.2d 166, 414 N.E.2d 666, rearg. denied, 52 N.Y.2d 784, 436 N.Y.S.2d 622, 417 N.E.2d 1010; Taylor v. Prostall, Inc., 174 A.D.2d 982, 983, 572 N.Y.S.2d 146), upon our review of the record, we conclude that the preponderance of the evidence in favor of the plaintiff on the issue of proximate cause was so great that the jury could not have reached its determination upon any fair interpretation of the evidence. Thus, the trial court erred in denying plaintiff's motion to set aside the jury's verdict.

Judgment unanimously reversed on the law without costs and new trial granted.