Plaintiff's medical expert testified that Robert had suffered severe emotional shock and psychiatric change, including amnesia, due to brain damage. The rule providing when a plaintiff may prevail on a lesser degree of proof was best crystalized in Noseworthy v. City of New York ( 298 N.Y. 76). The court there held that "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence" ( id., at p. 80).
A plaintiff who suffers amnesia as the result of a defendant's acts is not held to as high a degree of proof in establishing his right to recover for injury as is a plaintiff who can describe the events (Schechter v Klanfer, 28 N.Y.2d 228, supra). The rule is intended to avoid unfairness to a plaintiff who has suffered amnesia as a result of the accident and who, because he cannot testify to the event, might otherwise be prejudiced by an instruction to the jury that it may draw the strongest inferences against a party who fails to testify or who withholds evidence (see, Noce v Kaufman, 2 N.Y.2d 347, 353; Matter of Randel, 158 N.Y. 216, 219). It is also based, at least in part, on the belief that since the plaintiff is not able to testify, it is unfair to permit defendant to stand mute and defeat the claim (see, Noseworthy v City of New York, 298 N.Y. 76). The rule does not entitle the jury to presume plaintiff exercised due care at the time of the accident nor does it shift the burden of proof; plaintiff must still establish a prima facie case. It merely describes a method or approach to weighing evidence and permits the jury greater latitude in drawing inferences favorable to plaintiff (Schechter v Klanfer, supra; Townley v Bagby Transfer Co., 19 A.D.2d 757; Cary v Short, 16 A.D.2d 309; and cf. Amnesiac as Entitled to Presumption of Due Care, Ann., 88 ALR3d 622). A plaintiff entitled to an amnesia charge may prevail on a lighter burden of persuasion but he must make some showing of defendant's fault (see, Jarrett v Madifari, 67 A.D.2d 396, 404) and his burden is not satisfied if the inferences are equally balanced (see, Cole v Swagler, 308 N.Y. 325). In New York, contrasted with some other States, the rule may come into play even if there are eyewitnesses (Schechter v Klanfer, supra).
An inference could be justified that defendants' car hit the man, but, since there is nothing at all to show how that came about, there is nothing on which to base a finding of negligent causation. True it is that "in a death case a plaintiff is not held to as high a degree of proof of the cause of action as where an injured plaintiff can himself describe the occurrence" ( Noseworthy v. City of New York, 298 N.Y. 76, 80) but before that rule comes into play there must be some showing of negligence, however slight. Noseworthy, and similar cases, describe a method of, or approach to, weighing evidence, but there must be a showing of facts from which negligence may be inferred.
If a plaintiff is not in a position to demonstrate the cause of his injury, the quantum of evidence necessary to establish a prima facie case is much lower than if it would be otherwise. Particularly apposite here is Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), a wrongful death action in which plaintiff alleged a negligent failure on the part of a subway motorman to stop his train in sufficient time so as to avoid hitting plaintiff's intestate. Because the decedent was not available to testify, the Court of Appeals held that "plaintiff is not held to as high a degree of proof . . . as where an injured plaintiff can himself describe the occurrence."
Plaintiff so stipulated. Where a motorman of a subway train sees a person lying on the tracks abutting a subway station platform, from such a distance and under such other circumstances as to permit him, in the exercise of reasonable care, to stop before striking the person, the motorman's failure to avoid the accident may be found to be negligence (Noseworthy v City of New York, 298 N.Y. 76, 78-79; Clarke v City of New York, 295 N.Y. 861; Brennan v City of New York, 277 App. Div. 854; Mikorski v City of New York, 270 App. Div. 769, mot for lv to app den 270 App. Div. 819). With this general rule in mind and aside from testimony as to the actual occurrence of the tragedy, considerable proof was submitted as to the locale of the accident, sight distances and stopping capabilities of subway trains.
Thus a conclusion of contributory negligence as a matter of law is not warranted. Finally, in passing, I do agree with the dissent that Noseworthy v. City of New York ( 298 N.Y. 76) does not hold that where there is only one eyewitness to an accident involving a train and a decedent, the issue of decedent's contributory negligence is always for the jury. Murphy, P.J. (dissenting).
Dr. Khotimsky, concludes that Suhina does not recall the events of the day of the fire due to traumatic amnesia caused by the event of the fire and her resulting injuries. Plaintiffs argue that since this is a wrongful death case and Suhina has lost her memory of the fire, they should be held to a lesser standard of proof of proximate cause pursuant to the holding in Noseworthy v City of New York ( 298 NY 76, 80). Plaintiffs' reliance on the doctrine set forth in Noseworthy ( 298 NY at 80) is unavailing.
To the extent that defendant also argues that the jury's verdict is against the weight of the evidence, we find that a fair interpretation of the evidence supports the jury verdict in favor of plaintiff (see generallyKillon v. Parrotta, 28 N.Y.3d 101, 107–108, 42 N.Y.S.3d 70, 65 N.E.3d 41 [2016] ). We are also unpersuaded by defendant's contention that Supreme Court erred in giving a jury charge based upon Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948), which—in cases where the alleged negligent act or omission resulted in death—imposes a lighter burden of persuasion on the plaintiff by allowing the jury "greater latitude in evaluating such factual issues as the decedent might have testified to had [he or she] lived" ( PJI 1:61 ; seeImbierowicz v. A.O. Fox Mem. Hosp., 43 A.D.3d 503, 507, 841 N.Y.S.2d 168 [2007] ; Holiday v. Huntington Hosp., 164 A.D.2d 424, 428, 563 N.Y.S.2d 444 [1990] ). The theory behind the Noseworthy charge is "that it is unfair to permit a defendant who has knowledge of the facts to benefit by remaining mute in a wrongful death action where the decedent is unavailable to describe the occurrence" ( Staples v. Sisson, 274 A.D.2d 779, 780, 711 N.Y.S.2d 550 [2000] ; seeNoseworthy v. City of New York, 298 N.Y. at 80–81, 80 N.E.2d 744 ; Bochnak v. Mackes, 159 A.D.2d 882, 884, 553 N.Y.S.2d 520 [1990], lv denied 76 N.Y.2d 706, 560 N.Y.S.2d 988, 561 N.E.2d 888 [1990] ).
(Wiesner v. City of Albany, 224 App. Div. 239, affd 250 N.Y. 551.) The trial court noted the appropriate standard to be applied in death actions under which a plaintiff in such action is not held to as high a degree of proof as plaintiffs in personal injury actions. (Noseworthy v. City of New York, 298 N.Y. 76; Andersen v Bee Line, 1 N.Y.2d 169; Cruz v. Long Is. R.R. Co., 28 A.D.2d 282.) However, we are in agreement that the Trial Justice did not consider the evidence adduced in a light favorable to plaintiff, as required.
It should be noted that although plaintiffs have asserted claims alleging medical malpractice against Dr. Hackett, it does not appear that their complaint was accompanied by the certificate required by CPLR 3012–a nor do their current papers include any affidavit, affirmation or other statement from any appropriately credentialed individual attesting that Dr. Hackett's alleged treatment of Shannan Gilbert departed from the applicable professional standard of care. In recognition of their current difficulties in proof, plaintiffs, citing the Court of Appeals' decision in Noseworthy v. City of New York , 298 NY 76 [1948], and its progeny, ask the court to apply a relaxed standard of proof to their claims and to "give more weight to circumstantial evidence." In Noseworthy , the Court of Appeals held that it was an error for the trial court, in an action in which plaintiff's decedent had been struck and killed by a subway train and the train's motorman was the only eyewitness to the accident, to refuse to instruct the jury in a " ‘death case such as this, that the plaintiff is not held to the high degree of proof required in a case where the injured person may take the stand and give his version of the happening of the accident.’ "