Caristo v. San-zone

274 A.D.2d 406, 711 N.Y.S.2d 23

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 2000
• Status: Published

Opinions

—In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Richmond County (Minardo, J.), dated May 4, 1999, which, upon a jury verdict, is in favor of the defendants and against them dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

This action arises from an accident which occurred on the morning of February 26, 1995, when a vehicle operated by the defendant Augustine Sanzone skidded on ice and struck a vehicle operated by the plaintiff Antoinette Caristo. According to the plaintiff driver, a mixture of rain and snow had started to fall about IV2 hours before the accident. However, the plaintiff driver admitted that the roads were not icy. The defendant driver similarly testified that a combination of rain, freezing rain, and snow was falling on the morning of the accident. Despite the weather conditions, the defendant driver maintained that he encountered no problems with the roadway prior to the accident, and did not see any ice until he reached the top of a hill on Foster Road. The defendant driver did not realize that there was a sheet of ice on that section of Foster Road until he began to descend the hill and his vehicle started to slide. Although the defendant driver tapped on his brakes as he skidded down the hill, he was unable to stop. His vehicle entered an intersection against a stop sign and collided with the plaintiffs vehicle.

On appeal, the plaintiffs contend that the Supreme Court committed reversible error in granting the defendants’ request for a charge on the emergency doctrine. We disagree. An emergency doctrine instruction may be given where a reasonable view of the evidence presented at trial would support a finding that the party requesting the charge was confronted by a “sudden and unforeseen occurrence” not of his or her own making (Rivera v New York City Tr. Auth., 77 NY2d 322, 327). Where evidence of a qualifying emergency is presented, “then the reasonableness of the conduct in the face of the emergency is for the jury, which should be appropriately instructed” (Rivera v New York City Tr. Auth., supra, at 327). Indeed, the failure to give an emergency instruction in an appropriate case constitutes reversible error (see, Rivera v New York City Tr. Auth., supra, at 326). While the dissent points out that this Court has found an emergency doctrine charge to be unwarranted in several cases in which rear-end collisions were caused by vehicles skidding on wet roadways, those cases are distinguishable from the case at bar. Here, both drivers involved in the accident agreed that road conditions were not icy at the time of the collision, and the defendant testified, without contradiction, that he encountered no ice on the roadway until he began to descend the hill on Foster Road.

An analogous situation was presented in Deutsch v Horizon Leasing Corp. (145 AD2d 405). In that case, which stemmed from a three-car collision, the drivers of the second and third vehicles involved in the accident testified that they skidded on ice which had formed on an approach ramp to the Henry Hudson Parkway. Although the collision took place on a rainy day in December, all three drivers testified that they had encountered no ice on the roadway until they reached the accident site. This Court concluded that the jury was properly given an emergency doctrine instruction, because the accident occurred “on a curved, inclined ramp upon which there was a ‘sudden and unforeseen’ isolated icy condition” (Deutsch v Horizon Leasing Corp., supra, at 407, quoting Cordes v Torrisi, 109 AD2d 813, 814). The Deutsch case was followed in Healy v Greco (174 AD2d 877), where the Appellate Division, Third Department, found that some evidence of a qualifying emergency existed where the defendant, who had seen no ice on the roads while driving for approximately 2V2 hours before the accident, encountered a patch of ice on an unplowed road while negotiating a curve, and lost control of her vehicle. As in Deutsch and Healy, a reasonable view of the evidence in this case could support a finding that the defendant driver was faced with an emergency situation, not of his own making, when he unexpectedly encountered an isolated icy condition at the top of a hill (see also, MacFarland v Reed, 257 AD2d 802). Accordingly, the jury was properly instructed that they could consider whether the defendant driver was faced with an emergency, and, if so, whether his response to the emergency was that of a reasonably prudent person.

Furthermore, the verdict in favor of the defendants was not against the weight of the evidence since it cannot be said that the jury could not have reached its verdict on any fair interpretation of the evidence (see, Nicastro v Park, 113 AD2d 129, 132). Thompson, Altman and Krausman, JJ., concur.