Johnson v. Ingalls

• Decision Date: 03 May 2012
• Citation: Johnson v. Ingalls, 95 A.D.3d 1398, 944 N.Y.S.2d 654, 279 Ed. Law Rep. 1108, 2012 N.Y. Slip Op. 3492 (N.Y. App. Div. 2012)
• Parties: Melissa JOHNSON, Appellant, v. Zachary J. INGALLS et al., Respondents.
• Court: New York Supreme Court — Appellate Division

95 A.D.3d 1398

944 N.Y.S.2d 654

279 Ed. Law Rep. 1108

2012 N.Y. Slip Op. 03492

Melissa JOHNSON, Appellant,

v.Zachary J. INGALLS et al., Respondents.

Supreme Court, Appellate Division, Third Department, New York.

May 3, 2012.

Premo Law Firm, P.L.L.C., Albany (Brian D. Premo of counsel), for appellant.

Melito & Adolfsen, P.C., New York City (Ignatius John Melito of counsel), for respondents.

Before: MERCURE, J.P., LAHTINEN, SPAIN, McCARTHY and GARRY, JJ.

GARRY, J.

Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 22, 2010 in Albany County, upon a verdict rendered in favor of defendants.

Plaintiff commenced this action seeking to recover for injuries she sustained in November 2006 when she jumped or fell from a vehicle being driven by defendant Zachary J. Ingalls (hereinafter defendant) on the campus of the State University of New York at Albany. A jury rendered a trial verdict in favor of defendants. Plaintiff appeals.

Initially, plaintiff contends that the jury verdict was against the weight of the evidence. To set aside this verdict, “the evidence must so preponderate in favor of the plaintiff that the verdict could not have been reached on any fair interpretation of the evidence” ( Ernst v. Khuri, 88 A.D.3d 1137, 1138, 931 N.Y.S.2d 421 [2011] [internal quotation marks, brackets and citation omitted]; see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995] ). The trial testimony established that on the evening of the incident, a large group of students were drinking in a bar in the City of Albany, including plaintiff and several passengers who later rode in defendant's vehicle. There was a disagreement, and one of the passengers threw a drink in plaintiff's face. The passengers later summoned defendant—who was at home and had not been drinking—to pick them up and transport them back to campus. Plaintiff left the bar separately. Just before the accident, several bystanders saw her walking along a campus roadway, apparently intoxicated, and talking loudly on her cell phone. Defendant drove along the same roadway and either stopped or slowed down to somewhere between two and five miles per hour. Plaintiff went to the vehicle, stepped or jumped onto its running board, leaned into an open window and, according to the passengers, began to swing her arms at the passenger who had thrown the drink, apparently attempting to strike her. Defendant accelerated; plaintiff fell or jumped off the vehicle, suffering a fractured skull. The description of events offered by defendant and the passengers differed from that of plaintiff and the bystanders in several respects, such as whether the passengers did anything to provoke plaintiff's approach to the vehicle, whether the car stopped before plaintiff approached it and how rapidly it accelerated. Upon review, this Court accords “great deference” to the jury's interpretation of conflicting evidence ( Hudson v. Lansingburgh Cent. School Dist., 27 A.D.3d 1027, 1030, 812 N.Y.S.2d 678 [2006][internal quotation marks and citation omitted]; see Perry v. Wine & Roses, Inc., 40 A.D.3d 1299, 1299–1300, 836 N.Y.S.2d 356 [2007] ). Granting defendants, as we must, “the benefit of every favorable inference reasonably drawn from the facts adduced at trial” ( Macri v. Smith, 23 A.D.3d 971, 972, 804 N.Y.S.2d 474 [2005] [internal quotation marks and citations omitted] ), it cannot be said that the jury's determination is unsupported by any fair interpretation of the evidence.

Plaintiff next contends that Supreme Court erred in excluding evidence of defendant's actions after the accident on the ground of relevance. “[E]vidence is relevant if it tends to prove the existence or non-existence of a material fact, i.e., a fact directly at issue in the case” ( People v. Primo, 96 N.Y.2d 351, 355, 728 N.Y.S.2d 735, 753 N.E.2d 164 [2001] ), and the determination is within the trial court's discretion ( see Radosh v. Shipstad, 20 N.Y.2d 504, 508, 285 N.Y.S.2d 60, 231 N.E.2d 759 [1967]; Prince, Richardson on Evidence § 4–101 [Farrell 11th ed.] ). Here, the court allowed testimony from several witnesses—including defendant himself—that he drove away without stopping to check on plaintiff, but precluded evidence of his subsequent activities. Thus, the jury was not prevented from considering any tacit admission of guilt that might be inferred from his departure. The evidence of his activities thereafter had no bearing on the issue of whether he was operating the vehicle negligently at the time of the accident, and we find no error in Supreme Court's ruling.

We further reject plaintiff's contention that certain photographs obtained from her Facebook account were unduly prejudicial and improperly admitted into evidence. After an in camera review, Supreme Court excluded the majority of the photographs that defendants proffered as unduly prejudicial, cumulative or insufficiently probative, but permitted use of approximately 20 photos during plaintiff's cross-examination. Plaintiff claimed that, as a result of her injury, she suffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, that her anxiety prevented her from going out or socializing with friends, and that she required antidepressant medication. The photos admitted were taken over a 1 1/2-year period beginning shortly after the accident. They depicted plaintiff attending parties, socializing and vacationing with friends, dancing, drinking beer in an inverted position referred to in testimony as a “keg stand,” and otherwise appearing to be active, socially engaged and happy.¹ They further revealed that plaintiff consumed alcohol during this period, contrary to medical advice and her reports to her physicians. The discretion of trial courts in rendering evidentiary rulings is broad ( see Richmor Aviation, Inc. v. Sportsflight Air, Inc., 82 A.D.3d 1423, 1426, 918 N.Y.S.2d 806 [2011];Saulpaugh v. Krafte,...