Schechter v. Klanfer

• Decision Date: 08 April 1971
• Citation: 269 N.E.2d 812,28 N.Y.2d 228,321 N.Y.S.2d 99
• Parties: , 269 N.E.2d 812, 1971 A.M.C. 1385 Robert SCHECHTER, an Infant by Abraham J. Schechter, His Father, Appellant, v. Robert KLANFER et al., Respondents.
• Court: New York Court of Appeals Court of Appeals

Page 99

321 N.Y.S.2d 99

28 N.Y.2d 228, 269 N.E.2d 812, 1971

A.M.C. 1385

Robert SCHECHTER, an Infant by Abraham J. Schechter, His Father, Appellant, v. Robert KLANFER et al., Respondents.

Court of Appeals of New York.

April 8, 1971.

Irving Malchman, New York City, for appellant.

William M. Kimball, Kenneth H. Volk and Michael Marks Cohen, New York City for respondents.

BREITEL, Judge.

In this negligence action for personal injuries, the issue is whether the jury should have been instructed to hold plaintiff, who had by amnesia lost his memory of the events causing his injury, to a lesser degree of proof than a plaintiff who could have testified to the events.

Upon the trial, a verdict in favor of defendants was returned. The trial court initially instructed the jury to hold plaintiff to a lesser degree of proof if it found his amnesia to be genuine. Upon defendants' objection, however, the charge was withdrawn, plaintiff taking exception.

There should be a reversal and a new trial in order that they jury may consider whether plaintiff should be held to a lesser degree of proof.

Robert Schechter and his companion, Alice Stone, were involved in a motorboat collision on the night of August 25, 1964. Both were then 14 years old. They had left a party at a lakeshore home and, with Robert operating his father's boat, had begun motoring across the lake. Alice sat in the front seat, to the left of Robert. Alice testified that the night was clear and moonlit, that the boat's lights were on, and that Robert was taking a straight course at about four miles an hour. They had not gone far, Alice continued, when she looked to her right and saw a motorboat some 50 feet distant heading towards them, its bow out of water. About one second later, she estimated, the other boat, operated by defendant Robert Klanfer, struck the Schechter boat near the driver's seat. Alice estimated that the Klanfer boat was traveling at 30 miles an hour. The nighttime speed limit on the lake was 10 miles an hour. The defendants disputed Alice's testimony as to the speed of their boat and the lighting of the Schechter boat. Robert testified but not as to the accident, claiming that, as a result of the collision, he had no memory of the events. He had sustained a fractured skull, fractured arm, fractured jaw, and other physical injuries. He had been comatose for several days. Plaintiff's medical expert testified that Robert had suffered severe emotional shock and psychiatric change, including amnesia, due to brain damage.

The rule providing when a plaintiff may prevail on a lesser degree of proof was best crystalized in Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744. The court there held that 'in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence' (Id., at p. 80, 80 N.E.2d at p. 746). Moreover, despite some contrary notions, the rule has been applied in wrongful death cases where the plaintiff has called an eyewitness.

In Schafer v. Mayor of City of N.Y., 154 N.Y. 466, 472, 48 N.E. 749, 750, a wrongful death action antedating the statutory shift in burden of proof on contributory negligence in wrongful death cases, the rule was applied to plaintiff's burden on contributory negligence. Although the plaintiff had called eyewitnesses, the court explained that only plaintiff's decedent could have testified that he had seen the danger and had sought to avoid it. Plaintiff Schechter's case is similar: at issue is the degree of proof needed to meet plaintiff's burden on contributory negligence; an eyewitness, Alice Stone, was called; and only Robert Schechter could have testified, if he were capable, whether he saw the Klanfer boat and tried to avoid it. In Swensson v. New York, Albany Desp. Co., 309 N.Y. 497, 503, 131 N.E.2d 902, 904, a wrongful death case, the only eyewitness had sat as a passenger, like Alice Stone beside the driver of a motor vehicle involved in the accident. The Noseworthy rule was applied.

While it may not have been necessary to apply a lighter burden of persuasion to the case of an infant too young to talk because there happened to be circumstantial evidence upon which the jury could rely, the Noseworthy case (supra) was cited in Stein v. Palisi, 308 N.Y. 293, 297, 125 N.E.2d 575, 577. In Berg v. State of New York, 40 Misc.2d 354, 243 N.Y.S.2d 267, a lighter burden was applied on behalf of an imbecile who had sustained fatal injuries in a State hospital, the emphasis being placed on decedent's imbecilic state rather than on the fact of death as a result of the accident. Of course, the imbecility was not due to the accident. (But see Rucker v. Fifth Ave. Coach Lines, 15 N.Y.2d 516, esp. dis. opn. at pp. 518--519, 254 N.Y.S.2d 97, 98--99, 202 N.E.2d 548, 549, in volving a mental incompetent in which, however, a prima facie case had not been established.)

More to the point, a lesser burden was applied to an amnesiac plaintiff in Cresci v. City of New York, 27 A.D.2d 277, 279, 278 N.Y.S.2d 417, 418, affd. 21 N.Y.2d 932, 289 N.Y.S.2d 763, 237 N.E.2d 81, on the assumption that there could be no different standard than for a death case. The court, however, concluded that, even applying the rule, plaintiff had not made out a prima facie case, citing Wank v. Ambrosino, 307 N.Y. 321, 121 N.E.2d 246, Infra. In Cameron v. Dooley, 18 A.D.2d 130, 238 N.Y.S.2d 338, the rule of lesser burden was applied and couched in these words: 'There is at least some analogy between the situation here and that in the case where one of the drivers was killed in an accident, the only difference being that the version of one as to what happened is left untold because of death, and in this case the narrative is destroyed by the amnesia. Under such circumstances we should closely scrutinize whatever other evidence there may be which will shed light upon the manner in which the accident occurred' (p. 131, 238 N.Y.S.2d at p. 339). Relying on the lesser burden of persuasion the plaintiff was held to have made out her case sufficiently to go to the jury.

The Committee on Pattern Jury Instruction of the Association of Supreme Court Justices recommends, in a pattern instruction, that the amnesiac plaintiff be held to a lesser degree of proof if the jury is satisfied from medical and other evidence that plaintiff is suffering from loss of...