Graham by Graham v. Murphy
| Decision Date | 03 March 1988 |
| Parties | Loren GRAHAM, an Infant, by Lynne GRAHAM, His Parent, et al., Appellants- Respondents, v. Maria A. MURPHY et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Finkelstein, Kaplan, Levine, Gittelsohn & Tetenbaum (Duncan W. Clark, of counsel), Newburgh, for appellants-respondents.
MacCartney, MacCartney, Kerrigan & MacCartney (Nancy J. Quinn, of counsel), Nyack, for respondents-appellants.
Before MAHONEY, P.J., and KANE, CASEY, WEISS and LEVINE, JJ.
Plaintiffs commenced the instant suit to recover for personal injuries sustained by the infant plaintiff, Loren Graham, due to a dog bite inflicted on him by defendants' dog. Recovery for loss of services was also sought by Loren's mother, who is also a plaintiff in the action. The incident occurred on June 28, 1984 when Loren, who was nine years old at the time, went to defendants' home apparently to play with one of their children. At the trial, Loren testified that as he approached the house, he saw defendants' dog, unleashed on the porch, looking toward him from about 12 to 15 feet away. As he continued toward the porch, the dog jumped up and bit his right arm, as a result of which Loren ran and tripped over what he testified to be a tree stump. He fractured his ankle in the fall and had to be operated on. Due to the injury to his ankle, he was initially required to use a wheelchair or crutches. There was testimony at trial indicating that his participation in sports was and continues to be limited, and that he now limps. Loren's treating physician testified that as a result of the injury, one leg was shorter than the other and, if the discrepancy increased, further surgery might be required.
The jury found that the dog had vicious propensities which defendants knew or should have known about but apportioned liability 56% against defendants and 44% against Loren. Awards of $138,000 to Loren and $4,500 to his mother were reduced in accordance with the parties' degrees of culpability, leaving $77,280 for Loren and $2,520 for his mother. Plaintiffs have appealed and defendants have cross-appealed.
Turning first to plaintiffs' appeal, their claim that the verdict was against the weight of the evidence rests primarily on their assertion that Supreme Court erred in charging the defense of assumption of risk to the jury. In its charge to the jury, the court instructed the jurors that they were to decide whether Loren demonstrated culpable conduct in negligently contributing to his own injuries (i.e., contributory negligence) or in knowing and understanding that he risked injury by going to defendants' house (i.e., assumption of risk).
CPLR 1411 provides that a plaintiff's culpable conduct, which the statute defines as including the defenses of contributory negligence and assumption of risk, will mitigate damages proportionately. The Court of Appeals has held that the strict liability of an owner of a domestic animal found to have vicious propensities can be mitigated by the injured person's contributory negligence or implied assumption of risk ( Arbegast v. Board of Educ. of S. New Berlin Cent. School, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365).
The problem in the instant case revolves around the fact that in defendants' answer, although they pleaded as an affirmative defense that Loren's culpable conduct contributed to his injuries, they did not specify which theory they were asserting. Defendants thereafter never responded to plaintiffs' demand for a bill of particulars. Instead, with respect to this defense, they made an oral response at trial to the demand, 1 claiming that Loren's "culpable conduct consisted of surprising, agitating and otherwise provoking the dog prior to the incident". The question in this case is, therefore, whether plaintiffs were sufficiently on notice of the defense of assumption of risk to make its inclusion in Supreme Court's charge to the jurors proper and whether the evidence presented in the case could support a finding of assumption of risk.
We believe that Supreme Court erred in instructing the jury with respect to assumption of risk. It is true that under CPLR 3025(c), a party may amend a pleading to conform to the evidence, at any time during or even after trial, where no prejudice to the other party is shown ( see, Murray v. City of New York, 43 N.Y.2d 400, 401 N.Y.S.2d 773, 372 N.E.2d 560). Nevertheless, the object of a bill of particulars is to amplify the pleadings, limit the proof and prevent surprise at trial ( Di Lorenzo v. Ellison, 114 A.D.2d 926, 495 N.Y.S.2d 198). Although the defense of culpable conduct includes contributory negligence and assumption of risk, defendants never sought to amend their pleadings and, at trial, claimed that their affirmative defense was based on Loren's fault in provoking the dog, an assertion of contributory negligence rather than assumption of risk. Furthermore, defendants never requested the assumption of risk charge; it was given by Supreme Court sua sponte. We find that under the facts of this particular case, plaintiffs were unduly surprised and prejudiced (cf., Hoyt v. McCann, 88 A.D.2d 633, 450 N.Y.S.2d 231).
Furthermore, we find that the evidence presented was insufficient to establish the defense of implied...
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