Martuscello v. Jensen
| Decision Date | 22 October 2015 |
| Docket Number | 518302 |
| Parties | Daniel M. MARTUSCELLO, as Executor of the Estate of Maryanna J. Darmiento, Deceased, Appellant, v. Opinion and Order Susan M. JENSEN, Defendant, and Horizon Family Medical Group, Respondent. |
| Court | New York Supreme Court — Appellate Division |
134 A.D.3d 4
18 N.Y.S.3d 463
2015 N.Y. Slip Op. 07711
Daniel M. MARTUSCELLO, as Executor of the Estate of Maryanna J. Darmiento, Deceased, Appellant
v.
Opinion and Order Susan M. JENSEN, Defendant
and
Horizon Family Medical Group, Respondent.
518302
Supreme Court, Appellate Division, Third Department, New York.
Oct. 22, 2015.
Rush Wadlin Heppner & Martuscello, LLP, Kingston (E. Michael Kavanagh of counsel), for appellant.
Marks, O'Neill, O'Brien, Doherty & Kelly, P.C., Elmsford (Robert E. Fein of counsel), for respondent.
Before: LAHTINEN, J.P., GARRY, LYNCH and DEVINE, JJ.
Opinion
GARRY, J.
Appeal from a judgment of the Supreme Court (Melkonian, J.), entered April 1, 2013 in Ulster County, upon a verdict rendered in favor of defendant Horizon Family Medical Group.
Maryanna J. Darmiento (hereinafter decedent), then 81 years old, was transported by a relative to a medical office owned by defendant Horizon Family Medical Group for a routine physical examination to be conducted by defendant Susan M. Jensen, who was Horizon's employee and had been decedent's physician for many years.1 Her relative remained in the waiting area, and decedent was accompanied into an examination room by a medical assistant, who allegedly directed decedent to seat herself on the examination table. Decedent later testified that she did so, but told the assistant that she did not feel secure there. According to decedent, the assistant nevertheless left the room, and decedent slipped off the table and fell to the floor. The assistant denied that she either left the room or that decedent had complained that she was insecure, testifying instead that decedent fell when the assistant turned away momentarily to put decedent's medical chart on a counter.
Decedent commenced this action alleging, among other things, that she was provided with inadequate assistance and supervision on the examination table in view of her age and medical conditions. Supreme Court partially granted defendants' motion for summary judgment, finding, as pertinent here, that decedent's claims sounded in negligence rather than medical malpractice and that triable issues of fact barred summary judgment for defendants on the negligence claim. Following the close of proof in the subsequent bifurcated jury trial on the issue of liability, all causes of action against Jensen were dismissed, leaving Horizon as the sole remaining defendant.2 The jury found that Horizon had not been negligent, and the court issued a final judgment dismissing the action. Plaintiff appeals, contending that a series of erroneous evidentiary rulings and improper jury instructions prevented decedent from
establishing that her accident was foreseeable and was caused by Horizon's failure to provide her with adequate assistance and supervision.
We begin with plaintiff's challenge to the jury instructions. A jury has been properly charged when the instructions, “viewed as a whole, adequately presented the pertinent legal principles to be applied and the factual issues to be resolved” (State of New York v. 158th St. & Riverside Dr. Hous. Co., Inc., 100 A.D.3d 1293, 1299, 956 N.Y.S.2d 196 [2012], lv. denied 20 N.Y.3d 858, 960 N.Y.S.2d 350, 984 N.E.2d 325 [2013] [internal quotation marks and citations omitted]; see Spensieri v. Lasky, 94 N.Y.2d 231, 239–240, 701 N.Y.S.2d 689, 723 N.E.2d 544 [1999] ). Plaintiff contends that Supreme Court's instructions inaccurately presented the legal
principles at issue and thus prevented the jury from fully considering Horizon's potential liability for decedent's injuries. We agree, and for this and other reasons, find that a new trial is required.
During the charge conference, Horizon's counsel asked Supreme Court to instruct the jury on premises liability pursuant to PJI 2:90. Decedent's counsel objected that the case did not concern premises liability, that decedent did not claim that any physical defect or dangerous condition existed in the medical office, and that the issue instead was whether Horizon and its employees had provided decedent with adequate supervision and assistance. The court nevertheless determined that a premises liability instruction was appropriate and, over decedent's renewed objection, gave the jury a modified charge based on PJI 2:90 that attempted to combine the concepts of premises liability and adequate supervision.3 In its unmodified form, PJI 2:90 sets forth a two-step process in which the jury is first instructed to determine whether the defendant's premises were reasonably safe and—only if it answers this question in the negative—to then determine whether the defendant was negligent in permitting the unsafe condition to exist and whether its negligence was a substantial factor in causing the plaintiff's injuries. Adopting this structure, the modified instruction charged the jury that decedent was first required to “prove that the premises were not reasonably safe” and, in deciding whether decedent had met this requirement, the jury
was to determine “whether the assistance provided by [the medical assistant] to [decedent] was reasonably safe.” If the jury's answer was affirmative, it was to proceed no further; but if the answer was negative, the jury was to next determine whether Horizon had been negligent in that it knew or should have known that decedent would need assistance and supervision on the examination table but failed to provide her with such assistance or direct her to use a suitable alternative such as a chair. This modified instruction failed in several respects to set forth the applicable legal principles and factual issues.
Recovery in a premises liability action is predicated on “ownership, occupancy, control or special use of [a] property” where a dangerous or defective condition exists (Seymour v. David W. Mapes, Inc., 22 A.D.3d 1012, 1013, 803 N.Y.S.2d 250 [2005] [internal quotation marks and citation omitted]; accord Semzock v. State of New York, 97 A.D.3d 1012, 1012, 949 N.Y.S.2d 236 [2012] ). Here, decedent neither alleged that Horizon's liability arose from its ownership of dangerous or defective premises nor that any defects or dangerous conditions existed (compare N.Y. PJI 2:90, Comment, Defective Conditions) [Note: online treatise]. Instead, decedent asserted that Horizon was liable for the acts and omissions of its employees in failing to recognize the need for, or provide decedent with, adequate assistance and supervision—an analysis unrelated to the physical condition of the medical office or the legal principles underlying premises liability. Supreme Court's attempt to combine the two concepts resulted in an instruction that improperly advised the jury that decedent was required to prove
that the premises were unsafe. Moreover, the instruction confusingly directed the jury to evaluate the actions of the medical assistant twice, first by determining whether her actions were “reasonably safe” and then—without clarifying the distinction, if there is one—whether those same actions were negligent.
The modified instruction further misstated the threshold issue of the applicable duty of care. “Although the existence of a duty is a question of law to be determined by the courts, the factfinder must be instructed on the nature and scope of such duty so as to ascertain any breach thereof” (Gadani v. Dormitory Auth. of State of N.Y., 64 A.D.3d 1098, 1102, 884 N.Y.S.2d 489 [2009] [internal citation omitted] ). The modified instruction used the language of PJI 2:90 to charge the jury that “[t]he possessor of a building has a duty to use reasonable care to keep the premises in a reasonably safe condition for the protection of all persons whose
...To continue reading
Request your trial