DiLorenzo v. Venosa

50 A.D.2d 603, 375 N.Y.S.2d 395, 1975 N.Y. App. Div. LEXIS 12387

Opinion

— In a negligence action to recover damages for personal injuries, plaintiff appeals from a judgment of the Supreme Court, Richmond County, entered January 23, 1975, in favor of defendants, upon a jury verdict, after a trial limited to the issue of liability. Judgment reversed, on the law, and new trial granted, wdth costs to abide the event. No questions of fact have been considered. The charge to the jury included the statement: "A defendant is not responsible for the consequences of his negligence, even if he was negligent, unless the injuries sustained by the plaintiff, the accident that happened to the plaintiff, was reasonably foreseeable. In other words, if it was just a freak accident, just an unavoidable accident and the consequences were not foreseeable, then, even if the defendant was negligent, the plaintiff may not recover.” This charge was improper. A jury may be instructed as to unavoidable accident only if it could find that the accident resulted from an unknown cause or in an unexplained manner not occasioned by the negligence of either party (Dorn v Butts, 46 Misc 2d 953). The charge here left the jury with the impression that it could find an unavoidable accident even if it believed that defendant was negligent. A reversal of the judgment is therefore required. Hopkins, Acting P. J., Cohalan, Christ, Brennan and Shapiro, JJ., concur.