Opinion
May 27, 1994
Appeal from the Supreme Court, Monroe County, Galloway, J.
Present — Denman, P.J., Green, Lawton, Wesley and Callahan, JJ.
Order and judgment unanimously reversed on the law with costs, motion granted and new trial granted. Memorandum: Plaintiffs commenced this action to recover damages for personal injuries sustained by plaintiff Tracey Neidert when the automobile in which she was a passenger was struck by a delivery van owned by defendant Austin S. Edgar, Inc., and operated by defendant Joe L. Anthony. The accident occurred on Route 21 in the Town of Naples. At trial, defendants presented expert opinion testimony of a meteorologist concerning general weather conditions throughout Western New York and the Finger Lakes region. Based upon his understanding of those general conditions, the expert concluded that there was black ice on roads in the area. He further testified, however, that there was no basis for concluding whether there was black ice present on Route 21 at the time and place of the accident.
Supreme Court erred in denying plaintiffs' motion to strike that testimony. The meteorologist's opinion that the weather conditions prevailing in the region could produce areas of black ice supports only speculation about actual conditions at the accident scene (see, New York Canners v. Milbourne, 247 N.Y. 460, 464). "Expert opinions which are `"contingent, speculative or merely possible"' lack probative force and are, therefore, inadmissible" (People v. Robinson, 174 A.D.2d 998, 999, lv denied 78 N.Y.2d 1014, quoting Matott v. Ward, 48 N.Y.2d 455, 461; Strohm v. New York, Lake Erie W.R.R. Co., 96 N.Y. 305, 305-306). The meteorologist's opinion concerning the possible presence of black ice provided the jury with a basis for finding that the accident was caused by unforeseeable road conditions rather than the negligence of defendant Anthony.
Supreme Court also erred in charging the jury on the rules applicable to the standard of care in an emergency situation. The emergency doctrine instruction should not be given where, as here, defendant driver should reasonably have anticipated and been prepared to deal with the situation with which he was confronted (see, Hardy v. Sicuranza, 133 A.D.2d 138). The testimony at trial clearly established that defendant Anthony was aware that the road surface was slushy and slippery. Furthermore, defendant Anthony admitted that he had problems keeping control of the van when it fishtailed on four occasions prior to the accident. Thus, this accident was not the result of a "sudden and unforeseen occurrence" (Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327) that would entitle defendants to an emergency doctrine instruction. Plaintiffs are entitled, therefore, to a new trial (see, Corelli v. City of New York, 88 A.D.2d 810; see also, Hugelmaier v. Town of Sweden, 144 A.D.2d 934, lv dismissed 74 N.Y.2d 699).