Reiszel v. Fontana
| Decision Date | 20 July 1970 |
| Citation | 35 A.D.2d 74,312 N.Y.S.2d 988 |
| Parties | John E. REISZEL, an infant, etc., et al., Appellants, v. Joseph FONTANA, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Hahn & Gottlieb, Huntington Station (Irwin E. Simenowitz, Garden City, of counsel), for appellants.
Andrew L. Cisternino, Huntington Station (Charles F. Brady, Brooklyn, of counsel), for respondent.
Before CHRIST, P.J., and RABIN, HOPKINS, BRENNAN and BENJAMIN, JJ.
The question presented by the instant appeal is whether the trial court properly charged that the standard of care applicable to the defendant, a 17-year-old licensed driver, was only that standard of care 'which a reasonably prudent boy of 17 years of age might have exercised or should have exercised'.
On May 3, 1963, at approximately 4:50 P.M., an automobile operated by the defendant struck the infant-plaintiff while he was riding a bicycle. The accident occurred as the infant was bicycling out of an 'entrance' driveway to a parking area in a shopping center in Huntington, New York.
At the time of the accident the infant-plaintiff was 11-years-old while the defendant, a duly licensed driver, was 17-years-old.
The trial court was asked by the plaintiffs to clarify its charge to the jury as to the standard of care applicable to a minor operator of an automobile. The plaintiffs explained that since the court had charged that the infant-plaintiff would not be held to the standard of care required of an adult, but only to that standard applicable to a reasonably prudent 11-year-old, the jury might have mistakenly believed that as the defendant was also a minor he, too, would not be held to the standard of care of a reasonably prudent motorist, but only to the standard that a reasonably prudent 17-year-old operator would be expected to exercise. As a result, the plaintiffs requested the court to charge that 'since the operation of a motor vehicle in this state requires a license, that Mr. Fontana (the defendant) is held to the standard of care of every licensed operator of this state and not the standard of care of a 17-year old operator' (bracketed matter supplied).
The court, in refusing to so charge, specifically instructed the jury as follows:
'If the was 17 at the time He is held to a standard of care which a reasonably prudent boy of 17 years of age might have exercised or should have exercised' (emphasis added).
The court later restated its position when the...
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