Rivenburgh v. Viking Boat Co. — 55 N.Y.2d 850

Majority

p. 850

Shirley V. Rivenburgh, as Administratrix of the Estate of Frank V. Rivenburgh, Deceased, Appellant, v Viking Boat Co. et al., Respondents. Alco Standard Corporation, Doing Business as Tempo Products Company, Fifth-Party Plaintiff, v Walter A. Braun Co., Inc., Fifth-Party Defendant-Respondent. (And Other Actions.)

Decided January 14, 1982

p. 851

APPEARANCES OF COUNSEL

Norman H. Dachs for appellant.

Joseph Emmet Soffey for Viking Boat Co., respondent.

John E. Long and Martin J. Burgess for Bay Shore Marine Basin, Inc., respondent.

William F. McNulty for Aleo Standard Corporation, Doing Business as Tempo Products Company, respondent.

Michael Majewski for Walter A. Braun Co., Inc., fifth-party defendant-respondent.

OPINION OF THE COURT

On summary consideration, order reversed and a new trial granted with costs to abide the event. A plaintiff in a wrongful death action is not held to as high a degree of

p. 852

proof as a plaintiff in a personal injury action and is entitled to benefit from every favorable inference which can reasonably be drawn from the evidence in determining whether a prima facie case has been made out (see Noseworthy v City of New York, 298 NY 76 ). In this case, the testimony of the marine mechanic, Albert Sabiston, raised an issue as to the existence of a leak in the fuel tanks of decedent’s boat on the day of the explosion sufficient to warrant sending the case to the jury.

Concur: Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer.

Cases cited

Noseworthy v. City of New York 298 NY 76 N.Y. 1948-07-16 p. 852