Schermerhorn v. Warfield

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MIKOLL; MIKOLL
• Citation: Schermerhorn v. Warfield, 623 N.Y.S.2d 422, 213 A.D.2d 877 (N.Y. App. Div. 1995)
• Decision Date: 16 March 1995
• Parties: Corey A. SCHERMERHORN, Appellant, v. C. James WARFIELD, Also Known as James C. Warfield, et al., Respondents.

Page 422

623 N.Y.S.2d 422

213 A.D.2d 877

Corey A. SCHERMERHORN, Appellant, v. C. James WARFIELD, Also Known as James C. Warfield, et al.,

Respondents.

Supreme Court, Appellate Division Third Department.

March 16, 1995.

Finkelstein, Levine, Gittelsohn & Tetenbaum (James W. Shuttleworth III, of counsel), Newburgh, for appellant.

Cook, Tucker, Netter & Cloonan P.C. (Thomas A. Murphy, of counsel), Kingston, for respondents.

Before MIKOLL, J.P., and CREW, WHITE, YESAWICH and SPAIN, JJ.

MIKOLL, Justice Presiding.

Appeal from a judgment of the Supreme Court (Cobb, J.), entered November 15, 1993 in Columbia County, upon a verdict rendered in favor of defendants.

On December 17, 1988 plaintiff attended a wedding reception from 2:00 P.M. through 5:30 P.M. except for a period of about 15 minutes when he went for a ride in a friend's new car. Plaintiff brought with him a bottle of 80-proof whiskey he estimated to contain a cup of whiskey. He consumed the full bottle with ginger ale, had one or two screw drivers made with vodka and also ate some food at the reception. Upon leaving the reception, plaintiff walked home, remained there for a while before walking his dog, a pit bull terrier, to his girlfriend Kathy Kassman's apartment. Plaintiff and Kassman then both left her apartment between 6:30 P.M. to 7:00 P.M. to walk his dog and another bull terrier belonging to mutual friends living downstairs from Kassman. After walking about 35 to 40 minutes, they saw some ice on the sidewalk ahead of them. As they approached the icy area, Kassman was walking with one dog on a leash to the right of plaintiff who was walking beside her. They noticed the ice was larger on the left or street side of the sidewalk and thinned out and was smaller on the right side of the walk. Kassman stepped over the ice without difficulty but plaintiff stepped on it and fell, injuring his ankle. Kassman did not see him fall but turned and saw him on the ground. The next day she went back to the scene, 118 Greet Street in the City of Hudson, Columbia County, in front of a funeral home operated by defendant Bates and Anderson Funeral Services Inc. and took several photographs of the icy sidewalk area which were admitted in evidence.

Plaintiff was wearing sunglasses described as tinted prescription glasses at the time of the accident, an overcoat, cowboy boots/western style with smooth soles and 1 1/2-inch heels. The dog plaintiff was walking at the time weighed 83 pounds according to Kassman while the one she walked weighed about 50 pounds. There was no testimony that defendants created the icy condition. There was testimony that the slab of concrete was lower in the area where the ice was widest and thickest. Testimony was offered describing the weather conditions on the day of the accident and on several prior days.

Plaintiff admitted on cross-examination that Kassman had stepped over the ice without mishap and that he could have easily stepped over the ice on the right side of the sidewalk as Kassman had done.

Supreme Court submitted several questions to the jury in writing and instructed them on how to proceed in answering them during deliberations. They were to answer the first two...