Pedersen v. Balzan

• Decision Date: 27 February 1986
• Citation: 499 N.Y.S.2d 239,117 A.D.2d 933
• Parties: William PEDERSEN et al., Individually and as Administrators of the Estate of Kim Pedersen, Deceased, Appellants, v. Roger BALZAN et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 239

499 N.Y.S.2d 239

117 A.D.2d 933

William PEDERSEN et al., Individually and as Administrators of the Estate of Kim Pedersen, Deceased, Appellants, v. Roger BALZAN et al., Respondents.

Supreme Court, Appellate Division Third Department.

Feb. 27, 1986.

Bloomberg & Santola (Daniel R. Santola, Albany, of counsel), for appellants.

Maynard, O'Connor & Smith (Michael E. Catalinotto, Albany, of counsel), for respondents.

Before MAIN, J.P., and WEISS, MIKOLL, YESAWICH and HARVEY, JJ.

WEISS, Justice.

Appeal from a judgment of the Supreme Court in favor of defendants, entered January 15, 1985 in Ulster County, upon a verdict rendered at Trial Term (Torraca, J.).

At about 4:45 P.M. on May 5, 1982, a clear, dry day, 13-year-old Kim Pedersen (hereinafter decedent) was fatally injured when struck by defendants' automobile while crossing Route 212 in the Town of Saugerties, Ulster County, from the south to the north side on her bicycle. A jury returned a verdict in defendants' favor upon the wrongful death action, all other causes of action on behalf of plaintiffs having been withdrawn.

On this appeal, plaintiffs first contend that the trial court erred in refusing to grant their request to instruct the jury that "a driver is charged with observing whatever is within the purview of that driver's unobstructed vision. If the driver does not observe and account for what it [sic ] sees, that is negligence" (see, 1 NY PJI 2:77, at 225 [2d ed.] ). The driver of the vehicle, defendant Margaret Balzan (hereinafter defendant), testified that the road was straight and level for at least 100 yards before the scene of the accident and that nothing obstructed her view as she drove westerly at 30 to 35 miles per hour in a 40-mile-per-hour zone. Defendant did not see decedent, who had been riding her bicycle westerly on the south shoulder, until she was at the left front fender of the automobile crossing the street at approximately a 45-degree angle. Defendant applied her brakes, swerved to the right and skidded to a stop, but could not avoid hitting decedent. The officer who investigated the accident testified that the skid marks were approximately 100 to 150 feet in length. Each party introduced the testimony of an accident reconstruction expert, with plaintiffs' expert indicating that defendants' vehicle was traveling at 46 to 55 miles per hour, while defendants' expert estimated the speed at 29 to 36 miles per hour. Plaintiffs also produced the officer who investigated the accident, who testified that defendant stated that she was blinded by sunlight at the time of the accident, a statement she later denied at trial. In light of the jury verdict, we view this conflicting testimony in defendants' favor (see, Murray v. Robin, 108 A.D.2d 903, 485 N.Y.S.2d 788).

Under the circumstances presented, we find that there was substantial error in the trial court's rejection of the request for a "proper lookout" charge. Plaintiffs maintained that defendant was negligent in failing to see decedent until the bicycle was almost directly in front of the car. Given that the roadway afforded defendant an unobstructed view of the area preceding the accident scene, and that she had traveled this same route many times in the past, such a charge was clearly warranted. The trial court, however, simply recited the general rule applicable to all negligence cases that a person must exercise the degree of care that an ordinary, careful and prudent person would exercise under like circumstances (see, 1 NY PJI 2:10, at 126 [2d ed] ). No effort was made to apply the law in the context of the facts (see, Green v. Downs, 27 N.Y.2d 205, 316 N.Y.S.2d 221, 265 N.E.2d 68). We find the instruction inadequate.

This is not an instance where the requested charge related to a mere tangential issue (see, Murray v. Robin, supra ). Indeed, the question of whether defendant kept a "proper lookout" related to the very essence of plaintiffs' claim (see, Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231, mod. 56 N.Y.2d 737, 451 N.Y.S.2d 740, 436 N.E.2d 1342). As such, plaintiffs were entitled to a charge related to the specific facts in issue (see, 4 Weinstein-Korn-Miller, NY Civ Prac p 4404.17; 1 NY PJI 2:77, at 224 [2d ed.] ). The fact that decedent was also obligated to maintain a "proper lookout" (see, Finn v. New York State Dept. of Mental Hygiene, 49 A.D.2d 995, 374 N.Y.S.2d 394) does not, as the trial court suggested, vitiate the requested charge. In this age of comparative negligence, the possibility that competing parties may each bear some responsibility for an accident is readily apparent. Accordingly, we deem it appropriate to reverse and remit for a new trial (see, Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231, supra; Green v. Downs, 27 N.Y.2d 205, 316 N.Y.S.2d 221, 265 N.E.2d 68, supra; Dunn v. Catholic Med. Center of Brooklyn & Queens, 55 A.D.2d 597, 389 N.Y.S.2d 123; Mindlin v. Kiamesha Concord, 31 A.D.2d 988, 297 N.Y.S.2d 1008).

Although we recognize that plaintiffs failed to take appropriate exceptions to other portions of the trial court's...