Pelletier v. Lahm

• Decision Date: 20 November 2013
• Citation: 111 A.D.3d 807,2013 N.Y. Slip Op. 07718,975 N.Y.S.2d 135
• Parties: Jason PELLETIER, appellant, v. Brittany LAHM, et al., respondents.
• Court: New York Supreme Court — Appellate Division

111 A.D.3d 807

975 N.Y.S.2d 135

2013 N.Y. Slip Op. 07718

Jason PELLETIER, appellant,

v.Brittany LAHM, et al., respondents.

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

Nov. 20, 2013.

Burke, Miele & Golden, LLP, Goshen, N.Y. (Phyllis A. Ingram of counsel), for appellant.

Hannum Feretic Prendergast & Merlino, LLC, New York, N.Y. (Matthew Zizzamia of counsel), for respondents.

REINALDO E. RIVERA, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Rockland County (Garvey, J.), entered September 1, 2011, which, upon a jury verdict in favor of the defendants and against him on the issue of liability, and upon an order of the same court dated June 14, 2011, denying his motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law on the issue of liability or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial, is in favor of the defendants and against him, dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

The Supreme Court properly denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict on the issue of liability and for judgment as a matter of law or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial. Pursuant to CPLR 4404(a), a trial court “may set aside a verdict ... and direct that judgment be entered in favor of a party entitled to judgment as a matter of law.” Here, however, a valid line of reasoning and permissible inferences could lead a rational person to the conclusion reached by the jury on the basis of the evidence presented at trial ( see Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Lalanne v. Nyack Hosp., 45 A.D.3d 645, 646, 846 N.Y.S.2d 257). Further, a verdict should not be set aside as contrary to the weight of the evidence unless it could not have been reached upon any fair interpretation of the evidence ( see Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163; Dunnaville v. Metropolitan Tr. Auth. of City of N.Y., 68 A.D.3d 1047, 890 N.Y.S.2d 356; Artusa v. Costco Wholesale, 27 A.D.3d 499, 500, 811 N.Y.S.2d 761; Nicastro v. Park, 113 A.D.2d 129, 132–137, 495 N.Y.S.2d 184). Whether a verdict should be set aside as contrary to the weight of the evidence is not a question of law, but instead requires the discretionary balancing of various factors ( see Cohen v. Hallmark Cards, 45 N.Y.2d at 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Alatzas v. National R.R. Passenger Corp., 67 A.D.3d 832, 833, 888 N.Y.S.2d 431). It is within the province of the jury to determine issues of credibility, and great deference is accorded to the jury given its opportunity to see and hear the witnesses ( see DeToia v. Yellow Transp., Inc., 68 A.D.3d 804, 805, 889 N.Y.S.2d 475; Fowler v. Jamaica Bus, 62 A.D.3d 943, 878 N.Y.S.2d 917). A fair interpretation of the evidence supported the jury's determination that the defendant Brittany Lahm (hereinafter Brittany) was not negligent in the operation of her vehicle ( see Nicastro v. Park, 113 A.D.2d at 134–135, 495 N.Y.S.2d 184).

Contrary to the plaintiff's contention and our colleague's dissent, under the particular circumstances of this case, the trial court properly charged the jury on the emergency doctrine. In assessing the propriety of whether to instruct a jury on the emergency doctrine, the trial court must “make the threshold determination that there is some reasonable view of the evidence supporting the occurrence of a ‘qualifying emergency’ ” (Caristo v. Sanzone, 96 N.Y.2d 172, 175, 726 N.Y.S.2d 334, 750 N.E.2d 36, quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432; see Lifson v. City of Syracuse, 17 N.Y.3d 492, 497, 934 N.Y.S.2d 38, 958 N.E.2d 72). “Only then is a jury instructed to consider whether a defendant was faced with a sudden and unforeseen emergency not of the actor's own making and, if so, whether [the] defendant's response to the situation was that of a reasonably prudent person” (Caristo v. Sanzone, 96 N.Y.2d at 175, 726 N.Y.S.2d 334, 750 N.E.2d 36). “The emergency instruction is, therefore, properly charged where the evidence supports a finding that the party requesting the charge was confronted by ‘a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration’ ” ( id., quoting Rivera v. New York City Tr. Auth., 77 N.Y.2d at 327, 567 N.Y.S.2d 629, 569 N.E.2d 432).

Here, “[v]iewing the evidence in the light most favorably toward giving the requested emergency doctrine instruction to the jury” (Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110), based upon Brittany's testimony, there is a reasonable view of the evidence that her conduct was the product of a “ ‘sudden and unexpected circumstance’ ” (Lifson v. City of Syracuse, 17 N.Y.3d at 497, 934 N.Y.S.2d 38, 958 N.E.2d 72, quoting Caristo v. Sanzone, 96 N.Y.2d at 174, 726 N.Y.S.2d 334, 750 N.E.2d 36). Contrary to our dissenting colleague's determination, Brittany's general awareness that Brandon Berman, a passenger in her vehicle, had engaged in certain distracting conduct while in the car would not preclude a jury from deciding that Brittany did not anticipate that he would suddenly pull the strings on her bikini top, thereby causing the top to fall and her breasts to be exposed ( see Kuci v. Manhattan & Bronx Surface Tr. Operating Auth., 88 N.Y.2d at 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110). It was for the jury to find whether Brittany was faced with a sudden and unforeseen emergency not of her own making and, if so, whether her response to the situation was that of a reasonably prudent person ( see Caristo v. Sanzone, 96 N.Y.2d at 174–175, 726 N.Y.S.2d 334, 750 N.E.2d 36).

ROMAN, J., dissents, and votes to reverse the judgment, on the law, and remit the matter to the Supreme Court, Rockland County, for a new trial in accordance with the following memorandum:

I respectfully disagree with the majority's conclusion that the trial court properly instructed the jury on the emergency doctrine. As will be discussed, prior to the accident at issue, the driver of the subject vehicle, the defendant Brittany Lahm (hereinafter Brittany), was not faced with a sudden and unexpected circumstance leaving little or no time for thought, deliberation, or consideration. As such, there is no reasonable view of the evidence that Brittany was confronted with a qualifying emergency.

On July 12, 2008, Brittany was operating a vehicle owned by her father, the defendant Phillip Lahm. There were four passengers in the vehicle, including the plaintiff, Jason Pelletier, and Brandon Berman (hereinafter Brandon), who was seated in the rear passenger seat behind the front-seat passenger. Brittany and her four passengers, all 19 years of age, were traveling home following a day at the New Jersey Shore. They had left the beach at 3:30 p.m., and were traveling northbound on the New York State Thruway at the time of the accident. Brittany testified that she had dinner plans scheduled at 7:30 p.m. that evening and “didn't feel like being late.”

During the drive on the New York State Thruway, Brandon playfully pulled the strings of Brittany's bikini top. Brittany reacted by taking her hands off the steering wheel for a split second to cover herself. The vehicle began to veer to the right. Brittany grabbed the steering wheel to steer the vehicle back into the lane, but she lost control of the car. The vehicle struck the center guardrail, vaulted over the guardrail, and overturned, coming to rest upside down in the southbound lanes. Brittany estimated that she had been driving on the Thruway for approximately 15–20 minutes before the accident occurred. As a result of the accident, the plaintiff sustained personal injuries and Brandon died.

The plaintiff subsequently commenced this action against the defendants to recover damages for personal injuries. At trial, the court charged the jury on the emergency doctrine. The jury ultimately returned a verdict finding that Brittany was not negligent in the happening of the accident. Following the trial, the court denied the plaintiff's motion pursuant to CPLR 4404(a) to set aside the verdict and for judgment as a matter of law on the issue of liability, or, in the alternative, to set aside the verdict as contrary to the weight of the evidence and for a new trial. This appeal by the plaintiff ensued.

The emergency doctrine “recognizes that when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context” (Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432; see Amaro v. City of New York, 40 N.Y.2d 30, 36, 386 N.Y.S.2d 19, 351 N.E.2d 665). “A person in such an emergency situation ‘cannot reasonably be held to the same accuracy of judgment or conduct as one who has had full opportunity to reflect, even though it later appears that the actor made the wrong decision’ ” (Rivera v. New York City Tr. Auth., 77 N.Y.2d at 327, 567 N.Y.S.2d...