Opinion
No. 8413–2009.
2010-08-17
Alla YAKUBOVA & Angella Kulangi, Plaintiffs, v. Jennifer PERPER, Defendant.
Krentsel & Guzman, by Ernest Reece, Esq., New York, for Plaintiffs. Mendolia & Stenz, by Peter Dennin, Westbury, for Defendant.
Krentsel & Guzman, by Ernest Reece, Esq., New York, for Plaintiffs. Mendolia & Stenz, by Peter Dennin, Westbury, for Defendant.
CHARLES J. MARKEY, J.
The liability phase of the above-captioned personal injury action, in this pedestrian knock down case, was tried before the undersigned in June 2010. Defendant was driving her vehicle in the circular plaza south of the Long Island Railroad Station in Forest Hills, Queens County.
The two plaintiffs were walking north across Station Square. According to the plaintiffs, plaintiff Angella Kulangi was pushing a baby stroller with plaintiff Alla Yakubova's child in it, when the defendant, allegedly unfamiliar with the area, hit both plaintiffs with her vehicle. Defense counsel, at the trial on liability, challenged whether either of the two plaintiffs were actually struck by the vehicle. The plaintiffs argued that defendant was negligent and had a duty to watch for pedestrians. The defendant contended that both plaintiffs were negligent in not seeing her. Significantly, the defendant maintained that, just before her car allegedly struck something, she was blinded by sun glare and that her split second decision to lower the sun visor was useless in the sudden accident.
The undersigned charged the jury on June 18, 2010, and the jury returned a verdict that day on the liability phase of the trial. Two verdict sheets were prepared, one for each of the plaintiffs. The jury found that the defendant was 100% liable as to plaintiff Alla Yakubova, but that the defendant bore no liability as to plaintiff Angella Kulangi.
As an initial matter, the Court refused defense counsel's request, made at the charge conference before the giving of summations, for a special opening question on each of the two verdict sheets to inquire whether the jury believed that there “was contact” between the vehicle and the pedestrian. The Court turned down the request since the normal instructions on negligence were adequate in this regard, and that counsel could certainly argue any alleged contact or lack of contact in their closing statements to the jury. The jury's verdicts showed that they were able to follow the trial and the charge. Plaintiff Yakubova, right before the start of the damages portion of her case, reached a settlement of her claim.
The remainder of this memorandum decision explains the issue of the sun glare raised by defense counsel and the jury instruction on the “emergency doctrine,” predicated on Pattern Jury Instruction (“PJI”) 2:14, as revised by the Court to highlight the facts of this case.
In Lifson v. City of Syracuse, 72 A.D.2d 1523 [4th Dept.2010] [3–1 decision], the appellate court affirmed the trial judge's crafting of a jury instruction on the emergency doctrine, even though it deviated from the standard charge contained in PJI 2:14. An impassioned dissenter argued that the court below should not have given the emergency doctrine charge since the motorist should have anticipated sun glare at that time of day. Compare, Gibson Coal Co. v. Kriebs, 150 Ind.App. 173, 275 N.E.2d 821 [1971] [instruction on sudden emergency given as a result of the sun glare] with Vasconez v. Mills, 651 NW2d 48 [2002] [affirming refusal to give sudden emergency instruction since the defendant was familiar with the route from prior experience and should therefore have anticipated the sun glare factor].
Other cases on sun glare reveal paradoxical, if not conflicting results. Compare, Benitez v. Olson, 6 AD3d 560, 561 [2nd Dept.], lv. to appeal dismissed in part and denied in part,3 NY3d 753 [2004] [reversing, appellate court granted summary judgment to the defendant because the defendant Town established through their deposition testimony that “their [driver's] view of the road was impeded by sun glare, and not because of any alleged negligence on its part.”] with Johnson v. Phillips, 261 A.D.2d 269 [1st Dept.1999] [defendant's unsworn allegations of sun glare that attempted to invoke the emergency doctrine were insufficient to defeat summary judgment for the plaintiff in a hit-from-the-rear case]. See also, In re Delmarine, Inc., 520 F. Supp 2d 422, 429 & 431 [EDNY 2007] [in motorboat collision, driver of vessel maintained that accident “could have been [produced by] sun glare” was adjudged 85% liable]; Beene v. Terrebonne Wireline Services, Inc., 1992 WL 193501, slip op. at 1 [E.D. La.1992] [finding that the vessel was being conducted at an unsafe speed considering the bend in the bayou “and the sun's glare which restricted his visibility']; Black v. New York State Dept. of Motor Vehicles, 290 A.D.2d 635 [3rd Dept.2002] [affirming a finding of an administrative hearing against the petitioner, because, despite blinding sun, petitioner had enough space to reduce her speed, but failed to do so].
Having studied the aforementioned precedents prior to holding the charge conference, the undersigned crafted and gave, on June 18, 2010, the following instruction to the jury regarding the sudden glare and the emergency doctrine, refining the essential charge found in PJI 2:14.
THE COURT: Now, with regard to the defendant's testimony regarding sun glare, you must consider whether that constituted an emergency. That a person, faced with an emergency and who acts without opportunity to consider the alternatives, is not negligent if she acts as a reasonably prudent person would act in the same emergency, even if it later appears the defendant did not make the safest choice or exercise the best judgment.
A mistake in judgment, or wrong choice, is not negligence if the person is required to act quickly because of danger.
This rule applies where a person is faced with a sudden condition, which could not have been reasonably anticipated, provided that the person did not cause or contribute to the emergency by her own negligence. If you accept the defendant's testimony that sun glare blinded her; and, if you find that she was then faced with an emergency; and that her response to the emergency was that of a reasonably prudent person, then you will conclude that the defendant was not negligent; and if you find that the situation facing the defendant was not sudden, or could have reasonably been foreseen, or was created or contributed to, by the defendant's own negligence, or that the defendant's conduct in response to the emergency was not that of a reasonably prudent person, then you may find that the defendant was negligent.
This Court believes that the above-quoted, crafted charge preserves the jury's domain to determine all the facts and circumstances regarding the accident and whether or not an emergency situation existed.