Richards v. Miller — 21 A.D.3d 1023

Majority

p. 1023

Plashette Richards et al., Appellants, v Paul C. Miller, Respondent.

[801 NYS2d 353]

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Sproat, J.), dated August 9, 2004, which, upon a jury verdict, in favor of the defendant and against them on the issue of liability, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiffs’ contention, under the facts of this case, the Supreme Court properly charged the jury on the emergency doctrine (see PJI 2:14; Ferrer v Harris, 55 NY2d 285 [1982]; Rosario v Morias, 8 AD3d 108 [2004]; Coleman v Pizza Hut of Am., 235 AD2d 451 [1997]; Waugh v Johns, 206 AD2d 525 [1994]). Where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforseen occurrence not of his or her own making, then the reasonableness of the conduct in the face of the emergency is for the jury (see Caristo v Sanzone, 96 NY2d 172 , 175 [2001]; Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88

p. 1024

NY2d 923 , 924 [1996]; Rivera v New York City Tr. Auth., 77 NY2d 322 , 327 [1991]; Ferrer v Harris, supra). Here, the evidence, viewed in the light most favorable to the defendant, was sufficient to establish that the defendant was faced with a sudden and unforeseen occurrence not of his own making (see Frank v Lufsey, 243 AD2d 538 [1997]). Schmidt, J.P., S. Miller, Mastro and Rivera, JJ., concur.

Cases cited

Ferrer v. Harris 55 NY2d 285 N.Y. 1982-03-25 p. 1023
Waugh v. Johns 206 AD2d 525 N.Y. App. Div. 1994-07-25 p. 1023
Caristo v. Sanzone 96 NY2d 172 N.Y. 2001-04-03 at 175 p. 1023
Rivera v. New York City Transit Authority 77 NY2d 322 N.Y. 1991-02-14 at 327 p. 1024