Cramer v. Kuhns

213 A.D.2d 131, 630 N.Y.S.2d 128, 1995 N.Y. App. Div. LEXIS 8172
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 27, 1995
StatusPublished
Cited by34 cases

This text of 213 A.D.2d 131 (Cramer v. Kuhns) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cramer v. Kuhns, 213 A.D.2d 131, 630 N.Y.S.2d 128, 1995 N.Y. App. Div. LEXIS 8172 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Crew III, J.

On May 24, 1987, plaintiff was a passenger on a 1982 Harley Davidson Roadster motorcycle operated by defendant Mark W. Kuhns. While making a sweeping left-hand turn at approximately 50 miles per hour, plaintiff and Kuhns heard a scraping sound at which time the motorcycle, instead of continuing the turn, went straight ahead into the guardrail. An investigation following the accident revealed a long scrape in the pavement beginning where the motorcycle went out of control and ending where it collided with the guardrail. As a consequence of the accident, plaintiffs foot was nearly severed at the ankle and her arm was nearly severed at the elbow, rendering her permanently disabled.

Plaintiff commenced this personal injury action seeking $2 million in damages. The complaint alleged that Kuhns negligently operated the motorcycle, that defendant Harley Davidson Motor Company, Inc. (hereinafter Harley) negligently designed, manufactured and sold the motorcycle, and that Harley was strictly liable for the defective design and manufacture of the motorcycle and for failing to warn of its defect. The alleged design defect was the motorcycle’s side stand, which either dropped down or was left down by Kuhns and failed to retract upon impact with the pavement.

Following trial, a jury returned a verdict finding Kuhns [135]*13510% liable and Harley 90% liable and awarded plaintiff damages in the amount of $2,280,000. Kuhns and Harley appeal, inter alia, from the judgment entered thereon. Our review of the record leads us to conclude that there must be a reversal and a new trial.

There are a number of errors made by Supreme Court, any of which, arguably, necessitate a new trial. The most compelling argument made by Harley is its contention that Supreme Court erred in admitting into evidence a study undertaken by the National Highway Traffic Safety Administration (hereinafter NHTSA) in 1984 examining side stand retraction on 1975 to 1982 model motorcycles manufactured by five companies, one of which was Harley. The study contained, inter alia, the results of tests conducted by Dynamic Science, Inc. on the side stand apparatus of 14 models of motorcycles, including a 1981 Harley model, and the results of a mail survey conducted by NHTSA, wherein owners of models manufactured by the five companies studied responded to questions about their experiences with side stands contacting the ground. Finally, the study contained reports of accidents allegedly caused by side stand failures. This study, and a videotape of the test conducted on the Harley model, were received into evidence over Harley’s objection and, as might be expected, became the focal point of plaintiff’s case. After careful review of the record, we agree that the admission of the NHTSA study and the accompanying videotape was error and that the admission of such evidence was sufficiently prejudicial to warrant a new trial.

As a starting point, the study itself was hearsay and, as such, needed to fall within a recognized exception to the hearsay doctrine in order to be admissible. In this regard, we note that inasmuch as no one from the NHTSA testified at trial, the study could not have been admitted as a business record (see, CPLR 4518). As to whether the study could have been admitted under the public document exception (see, CPLR 4520), we note that the admissibility of a government investigative report under this provision has not been definitively addressed in this State (see, Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4520:3, at 245-247).

It has been suggested, however, that we might derive some guidance on this point from examining the judicial treatment accorded to the Federal counterpart to CPLR 4520, Federal Rules of Evidence, rule 803 (8) (C), which "provides for the [136]*136admission in evidence, in civil actions, of government agency reports which otherwise would be excludable as hearsay, if those reports constitute 'factual findings resulting from an investigation made pursuant to authority granted by law, unless the sources of information or other circumstances indicate lack of trustworthiness’ ” (City of New York v Pullman Inc., 662 F2d 910, 914, cert denied sub nom. Rockwell Intl. Corp. v City of New York, 454 US 1164, quoting Fed Rules Evid, rule 803 [8] [C]). The admission of a government report under this provision is committed to the trial court’s sound discretion and will hinge upon "whether the hearsay document offered in evidence has sufficient independent indicia of reliability to justify its admission” (supra, at 914). To that end, it has been suggested that factors to be weighed in determining the document’s trustworthiness and reliability, among other things, might include (1) the timeliness of the investigation, (2) the skill and/or experience of the investigator, (3) whether the report was based upon testimony adduced at a hearing, and (4) the possibility of bias (see, Alexander, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C4520:3, at 246).

Applying this analysis to the document before us, we are of the view that the NHTSA study does not fall within the scope of the public document exception contemplated by CPLR 4520. The study itself was preliminary in nature; no public findings were released and no recalls were issued. Additionally, the study was exceedingly brief in nature, and there was very little detail provided as to the actual tests conducted upon the various motorcycle models. Finally, the "observations” contained in the study were based, in part, upon the owner surveys and accident reports, neither of which were admissible,

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Bluebook (online)
213 A.D.2d 131, 630 N.Y.S.2d 128, 1995 N.Y. App. Div. LEXIS 8172, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cramer-v-kuhns-nyappdiv-1995.