Greer v. Ferrizz

• Decision Date: 03 March 1986
• Citation: 118 A.D.2d 536,499 N.Y.S.2d 758
• Parties: Renee GREER, etc., Plaintiff-Respondent, v. Francis FERRIZZ, et al., Defendants-Respondents, Imperial News Company, Defendant, Long Island News Company, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 758

499 N.Y.S.2d 758

118 A.D.2d 536

Renee GREER, etc., Plaintiff-Respondent, v. Francis FERRIZZ, et al., Defendants-Respondents Imperial News Company, Defendant, Long Island News Company, Appellant.

Supreme Court, Appellate Division,

Second Department.

March 3, 1986.

Held, Cheven, Sternberg & Held, New York City, Suozzi, English & Klein, P.C., Mineola (J. Irwin Shapiro and Robert N. Zausmer, Mineola, on brief), and Burke, Curry, Hamill & O'Brien, Mineola (Marshall D. Sweetbaum, Bellerose, of counsel), for appellant (separate briefs filed).

Joachim, Flanzig, Weissman & Wm. Beasley, Jr., Mineola (William Beasley, Jr. and Edward B. Joachim, Mineola, on brief), for plaintiff-respondent.

Curtis, Zaklukiewicz, Vasile & Devine, Merrick (Brian W. McElhenny, Merrick, of counsel), for defendants-respondents.

Before LAZER, J.P., and THOMPSON, BRACKEN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

Motion by the plaintiff for reargument of the appeal from a judgment of the Supreme Court, Suffolk County (DiPaola, J.), entered August 12, 1983, which was decided by decision and order of this court both dated April 22, 1985 (Greer v. Ferrizz, 110 A.D.2d 815, 488 N.Y.S.2d 234), and cross motion by the defendant Long Island News Company for renewal and reargument of the same appeal.

Justice Lazer has been substituted for former Justice, now Judge Titone (see, Judiciary Law § 21; Wittleder v. Citizens' Elec. Illuminating Co. of Brooklyn, 47 App.Div. 543, 62 N.Y.S. 488).

Motion and cross motion granted to the extent that this court's decision, dated April 22, 1985, is recalled and vacated, and the following decision is substituted therefor:

"In a wrongful death action, defendant Long Island News Company appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Suffolk County (DiPAOLA, J.), entered August 12, 1983, as was in favor of the plaintiff and against appellant, upon a jury verdict.

"Judgment reversed insofar as appealed from, on the law, and new trial granted to appellant solely on the issue of whether appellant was negligent in permitting defendant Francis Ferrizz to become intoxicated, and if so, the percentage of liability to be apportioned to appellant, with costs to abide the event.

"The case involves the fatal injury to plaintiff's decedent by defendant Francis Ferrizz, who was driving home from work on Sunday morning December 16, 1979. The evidence was undisputed that Mr. Ferrizz was intoxicated. A verdict against the Ferrizz's on liability was directed after the opening statements, and said verdict is not challenged on appeal.

"Liability against Mr. Ferrizz's employer, appellant Long Island News Company, was asserted on two theories. The first was common-law negligence, based on the allegations that appellant's supervisor condoned drinking by Mr. Ferrizz on the company premises with knowledge that he would be driving thereafter. The second was that of respondeat superior, on the assertion that, when the accident occurred, Mr. Ferrizz was on his way to making one more delivery before going home.

"The judgment must be reversed insofar as appealed from, because the trial court erroneously reduced plaintiff's burden of proof in its charge to the jury. The court relied on Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744, in telling the jury that the plaintiff in a wrongful death action "is not held to as high a degree of proof as * * * [one] who is alive and can himself describe the occurrence". The Noseworthy doctrine would be relevant only as to the negligence of the driver, Mr. Ferrizz, and the events occurring at the scene of the accident. Mr. Ferrizz's negligence was manifest and undisputed. Indeed, the trial court directed a verdict against him after the opening statements, which verdict is not questioned on appeal. The only issues before the jury in this action pertained to matters that were distinct in time and place from the actual occurrence of the accident, namely, the consumption of the beer and a newspaper delivery assignment. These issues are unrelated to the Noseworthy doctrine. The charge which effectively reduced the plaintiff's burden of proof as to these two issues was unwarranted. Because the evidence was highly disputed and open to assessments of credibility, the erroneous instruction could well have affected the outcome. A new trial is therefore required.

"Plaintiff's claim that the theory of respondeat superior is applicable is without merit. The evidence was insufficient to establish that Mr. Ferrizz was still acting within the scope of his employment. Viewed most favorably to plaintiff, the evidence fails to show that Mr. Ferrizz was on any route other than his normal route home when the accident occurred. Mr. Ferrizz would have driven along that route whether or not his travels still had a business purpose. Under the "dual purpose" principle, respondeat superior liability does not attach where the business purpose did not create the necessity for being on that route (Matter of Marks v. Gray, 251 N.Y. 90, 167 N.E. 181; Kelleher v. State Mut. Life Assur. Co. of Amer., 51 A.D.2d 872, 380...