Finally, plaintiff also contends that the trial court erred by refusing to modify the jury charge to include a physician's duty in prescribing and monitoring prescription drugs. The charge here substantially conforms with the Pattern Jury Instructions (PJI 2:150) and states the relevant principles of medical malpractice (see, Green v. Downs, 27 N.Y.2d 205, 208). We agree with the Appellate Division that the trial court supplemented the charge by accurately identifying the factual assertions of the parties with regard to the prescription and monitoring of the drugs in question.
The trial court, however, simply recited the general rule applicable to all negligence cases that a person must exercise the degree of care that an ordinary, careful and prudent person would exercise under like circumstances (see, 1 N.Y. PJI 2:10, at 126 [2d ed]). No effort was made to apply the law in the context of the facts (see, Green v. Downs, 27 N.Y.2d 205). We find the instruction inadequate.
Against this background, and read in context with the entire charge, the instruction on intervening cause was not an abstraction and its relationship to the evidence was readily apparent. In sum, the charge was not confusing to the jury and it satisfied the standards of Green v. Downs ( 27 N.Y.2d 205). In rendering its verdict, the jury responded to written interrogatories.
Judgment affirmed, without costs or disbursements. The evidence supports the jury's verdict (see Rossman v La Grega, 28 N.Y.2d 300). The charge was fair and adequate (see Green v Downs, 27 N.Y.2d 205, 208-209). Latham, Acting P.J., Damiani and Hawkins, JJ., concur; O'Connor, J., concurs in the affirmance of the judgment as to defendants Dworkin and Threatt, but otherwise dissents and votes to reverse the judgment, sever the action, and grant a new trial as between plaintiff and the remaining defendants, with the following memorandum:
Where the law imposes a particular duty in a negligence case, the jury instructions must describe this duty to the jury. See Roberts v. State, 147 Vt. 160, 166-67, 514 A.2d 694, 697-98 (1986); Provost v. Miller, 144 Vt. 67, 70, 473 A.2d 1162, 1164 (1984); Dawley's Adm'r v. Nelson, 115 Vt. 461, 463, 63 A.2d 866, 868 (1949); see also Green v. Downs, 265 N.E.2d 68, 70 (N.Y. 1970) ("`In cases where the law has detailed the duty resting on a reasonably prudent man, general instructions are inadequate.'") (quoting Barnevo v. Munson S.S. Line, 147 N.E. 75, 77 (N.Y. 1925)). Here, the general negligence instruction did not describe defendant's duty as set out in Forcier.
For a charge should do more than merely articulate the legal principles applicable to the case to be decided. Among other things, it should also focus attention on the specific factual issues raised by the evidence to which the principles are to be applied (Green v Downs, 27 N.Y.2d 205, 208; 1 Dowsey, Charges to the Jury and Requests to Charge in a Criminal Case, § 8; cf. 1 N.Y. PJI — Civil 1:6). The presentation of the proofs as they have actually developed, the conflicts thereby created in the minds of jurors, the contentions advanced on interrogation and in argument by opposing counsel — these are the sort of things that turn dry-sounding legal propositions into living laws whose significance jurors will readily appreciate and apply as tools to the resolution of a case they have come to know.
Thus, the evidence was sufficient to support a finding that the oncoming train would have been noticed by anyone on the tracks making proper use of his or her senses. Furthermore, contrary to the plaintiff's contention, we hold that it was appropriate for the Supreme Court to issue a modified jury charge on the open run defense which was tailored to the facts of this case by omitting the words "in broad daylight" (seeGreen v. Downs, 27 N.Y.2d 205, 208, 316 N.Y.S.2d 221, 265 N.E.2d 68 ). "[T]he Pattern Jury Instructions are only intended as a guide to the Trial Justice," and need not be strictly adhered to ( Spadaccini v. Dolan, 63 A.D.2d 110, 117, 407 N.Y.S.2d 840 ; seeWilliams v. Bright, 230 A.D.2d 548, 556, 658 N.Y.S.2d 910 ). " ‘A trial court is required to state the law relevant to the particular facts in issue, and a set of instructions that confuses or incompletely conveys the germane legal principles to be applied in a case requires a new trial’ " ( Gorokhova v. Consolidated Edison of N.Y., Inc., 186 A.D.3d 1201, 1202, 127 N.Y.S.3d 908 [emphasis added], quoting J.R. Loftus, Inc. v. White, 85 N.Y.2d 874, 876, 626 N.Y.S.2d 52, 649 N.E.2d 1196 ).
To the extent that People v Brandt (60 Misc.3d 956, 961 [Poughkeepsie City Ct]) holds otherwise, we overrule it. The precise and specific duty established in Vehicle and Traffic Law § 1163(b) bore directly on the facts to which the parties testified, and, therefore, the Supreme Court erred in refusing to give that charge (see Green v Downs, 27 N.Y.2d 205, 207; Collazo v Metropolitan Suburban Bus Auth., 68 A.D.3d 803, 804; Ciatto v Lieberman, 266 A.D.2d 494). The statute establishes a standard of care, the unexcused violation of which is negligence per se (see Martin v Herzog, 228 NY 164, 168; Collazo v Metropolitan Suburban Bus Auth., 68 A.D.3d 803; Coogan v Torrisi, 47 A.D.3d 669).
To the extent that People v. Brandt, 60 Misc.3d 956, 961, 81 N.Y.S.3d 880 [Poughkeepsie City Ct.] holds otherwise, we overrule it. The precise and specific duty established in Vehicle and Traffic Law § 1163(b) bore directly on the facts to which the parties testified, and, therefore, the Supreme Court erred in refusing to give that charge (seeGreen v. Downs, 27 N.Y.2d 205, 207, 316 N.Y.S.2d 221, 265 N.E.2d 68 ; Collazo v. Metropolitan Suburban Bus Auth., 68 A.D.3d 803, 804, 891 N.Y.S.2d 129 ; Ciatto v. Lieberman, 266 A.D.2d 494, 698 N.Y.S.2d 54 ). The statute establishes a standard of care, the unexcused violation of which is negligence per se (seeMartin v. Herzog, 228 N.Y. 164, 168, 126 N.E. 814 ; Collazo v. Metropolitan Suburban Bus Auth., 68 A.D.3d 803, 891 N.Y.S.2d 129 ; Coogan v. Torrisi, 47 A.D.3d 669, 849 N.Y.S.2d 621 ).
However, contrary to the plaintiffs' contention, the Supreme Court's response to the subject jury note was proper and stated the law as applicable to the particular facts at issue (see Green v Downs, 27 NY2d 205, 208; Rowe v New York City Tr. Auth., 295 AD2d 333, 334; Kravis v Horn, 254 AD2d 462, 463; Martino v Triangle Rubber Co., 249 AD2d 454, 455; see generally PJI 1:40).