Opinion
April 4, 1994
Appeal from the Supreme Court, Suffolk County (Lama, J.).
Ordered that the appeal from the order is dismissed (see, Matter of Aho, 39 N.Y.2d 241, 248); and it is further,
Ordered that the judgment is reversed, on the law, the order is vacated, and a new trial is granted with respect to the issues of liability only; and it is further,
Ordered that the defendant is awarded one bill of costs.
The instant action arises from an altercation between two groups of youths, which resulted in the defendant stabbing Christopher Shire to death. Richard Shire as administrator of the estate of Christopher Shire commenced this action to recover damages for wrongful death and conscious pain and suffering. At trial, although the defendant requested that the court instruct the jury on implied assumption of risk, the court declined to give such an instruction. Following a jury trial, there was a verdict in favor of the plaintiff.
The Court of Appeals in Arbegast v Board of Educ. ( 65 N.Y.2d 161), indicated that a failure to appreciate a known danger could constitute an implied assumption of risk. We find that the CPLR 1411 "culpable conduct" test applies in the present case, and given the risk of harm that is inherent in a fight, the court should have instructed the jury on implied assumption of the risk. Under the facts of this case, the failure to so charge cannot be considered harmless.
Additionally, in light of the awards in similar cases we find that the award of damages in this case was not excessive (see, Gonzalez v New York City Hous. Auth., 161 A.D.2d 358, affd 77 N.Y.2d 663; Canty v New York City Health Hosps. Corp., 158 A.D.2d 271; Johnston v State of New York, 127 A.D.2d 980; Pollock v Collipp, 124 A.D.2d 647; DeLong v County of Erie, 89 A.D.2d 376, affd 60 N.Y.2d 296). Lawrence, J.P., Joy, Friedmann and Krausman, JJ., concur.