Hummel v. Vicaretti

• Decision Date: 06 July 1989
• Citation: 152 A.D.2d 779,543 N.Y.S.2d 560
• Parties: Ralen HUMMEL, et al., Respondents, v. Robert VICARETTI, Sr., et al., Appellants.
• Court: New York Supreme Court — Appellate Division

Page 560

543 N.Y.S.2d 560

152 A.D.2d 779

Ralen HUMMEL, et al., Respondents, v. Robert VICARETTI, Sr., et al., Appellants.

Supreme Court, Appellate Division Third Department.

July 6, 1989.

Baum & Shawn, Monticello, for appellants.

Appelbaum, Eisenberg, Bauman & Appelbaum (Bertram W. Eisenberg, of counsel), Liberty, for respondents.

Before MAHONEY, P.J., and WEISS, YESAWICH, CASEY and HARVEY, JJ.

HARVEY, Justice.

Appeal from a judgment of the Supreme Court (Torraca, J.), entered April 8, 1988 in Sullivan County, upon a verdict rendered in favor of plaintiffs on the issue of liability.

In a bifurcated trial of this action, the jury found defendants 65% liable and plaintiffs 35% liable for the happening of an accident on defendants' property. From the evidence introduced at the trial the jury could have found the following to be fact. For quite some period of time prior to March 1, 1986, operators of recreational-type vehicles used the "pipeline trail" which ran through property owned by defendants. To prevent the unauthorized use of their property, defendants constructed a fence consisting of two strands of wire horizontally across the trail, one at knee height and the other at chest height. The strands of wire were of a light color. On March 1, 1986, plaintiff Ralen Hummel was operating a three- wheel all-terrain vehicle along the trail. He did not observe the fence until he was so close to it that he could not avoid colliding with it. Nothing was attached to the fence to make it more visible to those using the trail. He was injured as a result of the collision.

Initially, defendants contend that the complaint should be dismissed for plaintiffs' failure to adequately plead a cause of action. Specifically, defendants allege that the complaint was insufficient in that it failed to contain the elements necessary to state a cause of action under General Obligations Law § 9-103. This statute protects a landowner from liability for certain injuries resulting from the recreational use of his property by others unless the injury is caused by the landowner's "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity" (General Obligations Law § 9-103[2][a]. Defendants fault the complaint because plaintiffs state only that defendants' actions were negligent rather than "willful or malicious" as required by statute. Defendants also contend that because the complaint does not specifically state that the fence was inherently dangerous, it should have been dismissed for insufficiency.

We do not agree. The record does not disclose any motion either prior to or during the trial addressed to the sufficiency of the complaint. It is undisputed that, despite any alleged insufficiencies in the pleadings, the entire case herein was tried on the theory that defendants willfully failed to warn about the fence in contravention of General Obligations Law § 9-103(2)(a). Proof to this effect was introduced and the jury was so charged. Although a literal reading of the allegations contained in the complaint reveals that the precise words "willful", "malicious" or "inherently dangerous" were not utilized therein, we find that the factual allegations employed were broad enough to reasonably imply these elements despite the inartful nature of their drafting (see, Diemer v. Diemer, 8 N.Y.2d 206, 212, 203 N.Y.S.2d 829, 168 N.E.2d 654). Nonetheless, "to the extent that the complaint may be deemed insufficient in that respect, it will be deemed amended to conform it to the proof" presented at trial (Diamond Intl. Corp. v. Little Kildare, 28 A.D.2d 1192, 1194-1195, 284 N.Y.S.2d 733, revd. on other grounds 22 N.Y.2d 819, 292 N.Y.S.2d 915, 239 N.E.2d 655; see, CPLR 3025[c]. It is well settled that a variance between the pleadings and the proof "may be disregarded unless it can be said to have misled an adversary and occasioned prejudice" (Sharkey v. Locust Val. Mar., 96 A.D.2d 1093, 1094, 467 N.Y.S.2d 61; see, Reich v. Knopf, 65 A.D.2d 618, 409 N.Y.S.2d 539). This relief may be granted in the absence of a motion by a party and also in an appellate court, sua sponte, if justice so requires (see, D'Antoni v. Goff, 52 A.D.2d 973, 383 N.Y.S.2d 117; Siegel, NY Prac § 404, at 533). Here, it is readily apparent that defendants were neither prejudiced nor surprised by plaintiffs' failure to plead their cause of action with more specificity. The entire case was conducted in the same manner as it would have been had the complaint been more specific.

Next, defendants claim that Supreme Court erred in its jury instructions regarding General Obligations Law § 9-103(2)(a) by only charging the definition of "willful" failure to guard or warn rather than also defining the word "malicious". We see no error in this charge since the statute clearly imposes liability upon a landowner for a "willful or malicious failure to guard, or to warn against, a dangerous condition, use, structure or activity" (General Obligations Law § 9-103[2][a] [emphasis supplied]. Since plaintiffs' case was tried on a theory of willful failure to guard, and the evidence presented by them was in conformity with that theory, no prejudice accrued to defendants by the narrowing of plaintiffs' claim as presented to the jury. In addition, we are also unpersuaded by defendants' further argument that Supreme Court's definition of "willful" was incorrect. The definition used by the court was in reasonable conformity with case law and standard jury instructions (see, e.g., Gardner v. Owasco Riv. Ry., 142 A.D.2d 61, 534 N.Y.S.2d 819; Seminara v. Highland Lake Bible Conference, 112 A.D.2d 630, 492 N.Y.S.2d 146; 1 N.Y. PJI 2:10A, 2:91.1, at 73, 175 [May 1988 supp.]. Moreover, since the definition used by the court was the very definition requested by defendants in the first place, defendants cannot now be heard to complain (see, Siegel, Practice Commentaries, McKinney's Cons. Laws of N.Y., Book 7B, CPLR 4110-b [1989 Supp.Pamph.], at 135).

Finally, we reject defendants' contention that the verdict in plaintiffs' favor was against the weight and sufficiency of the evidence. According to defendants, there was insufficient evidence adduced to establish a willful failure to guard or warn on defendants' part against a dangerous condition. In order to set aside a jury verdict, "it must be shown that the preponderance of the evidence is so greatly contrary to the jury's verdict that it could not have been rendered by any fair interpretation of the evidence" (Hapgood v. P & C Food Mkts., App.Div., 539 N.Y.S.2d 565, 566). Here, plaintiffs introduced evidence to show that defendants were aware that recreational riders used the pipeline path and, in fact, had tried to actively discourage them from doing so on occasion. In addition, defendants were responsible for putting up the thin wire fence which plaintiffs' witnesses testified had no markers or ribbons placed on it, thus making it very difficult to see. Further testimony credited defendant Joanne Vicaretti with making the statement that it was "too bad [if the fence was a dangerous condition]. We put it there to keep people out." While Vicaretti denied making this statement, and defendants presented other evidence showing that the fence was erected to keep their horses in and that it was marked with surveyor's ribbons, these opposing versions of the story merely present questions of credibility for the jury to resolve (see, Mechanick v. Conradi, 139 A.D.2d 857, 859, 527 N.Y.S.2d 586). The jury obviously chose to credit plaintiffs' evidence and we find no impropriety in that choice. It is well settled that "[f]indings of fact that have sufficient support in the credible evidence will not be disturbed even if there is evidence leading to a contrary conclusion" (Halvorsen v. Ford Motor Co., 132 A.D.2d 57, 60, 522 N.Y.S.2d 272 lv. denied 71 N.Y.2d 805, 529 N.Y.S.2d 76, 542 N.E.2d 430; see, Hapgood v. P & C Food Mkts., supra ).

Judgment affirmed, with costs.

MAHONEY,...