Coleman v. Pizza Hut of America, Inc.

235 A.D.2d 451, 652 N.Y.S.2d 1006, 1997 N.Y. App. Div. LEXIS 389

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 21, 1997
• Status: Published

Opinion

In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (O’Connell, J.), dated July 13, 1995, which, upon a jury verdict, is in favor of the defendant dismissing the complaint.

Ordered that the judgment is affirmed, with costs.

Contrary to the plaintiff’s contention, we find that the trial court properly instructed the jury on the emergency doctrine (see, Kuci v Manhattan & Bronx Surface Tr. Operating Auth., 88 NY2d 923, 924). The testimony of the driver of the vehicle owned by the defendant Pizza Hut of America, Inc. (hereinafter Pizza Hut), testified that the plaintiff suddenly and unexpectedly appeared from the front of a parked van and ran in front of the Pizza Hut vehicle. In light of the additional testimony that the Pizza Hut driver was proceeding at a reasonable and prudent speed, the jury reasonably could have concluded that the accident was unavoidable (see, Sonntag v Dor-Vac Corp., 192 AD2d 594). Where, as here, some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of the actor’s own making, then the reasonableness of the conduct in the face of the emergency is for the jury (Kuci v Manhattan & Bronx Surface Tr. Operating Auth., supra).

The plaintiff’s remaining contentions are either unpreserved for appellate review or without merit. Miller, J. P., Santucci, Joy and Krausman, JJ., concur.