Justia.com Opinion Summary: Defendant was the driver of an automobile that struck plaintiff's decedent while she was crossing the street, causing her death. Pursuant to defendant's claim that the accident occurred while he was temporarily blinded by sun glare, the trial court instructed the jury on the emergency doctrine in his favor. The court held that, under these circumstances, it was error to give the jury the emergency instruction and the error was not harmless. Accordingly, the order of the Appellate Division, insofar as appealed from, should be reversed, with costs, the amended complaint reinstated as against defendant and the case remitted to the Supreme Court for further proceedings.
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This opinion is uncorrected and subject to revision before
publication in the New York Reports.
----------------------------------------------------------------No. 157
Alexander Lifson, &c.,
Appellant,
v.
City of Syracuse,
Defendant,
Derek Klink,
Respondent.
Michael J. Longstreet, for appellant.
Donald S. DiBenedetto, for respondent.
LIPPMAN, Chief Judge:
Defendant Klink was the driver of an automobile that
struck plaintiff's decedent, Irene Lifson, while she was crossing
the street, causing her death.
Pursuant to Klink's claim that
the accident occurred while he was temporarily blinded by sun
glare, the trial court instructed the jury on the emergency
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- 2 doctrine in his favor.
No. 157
We find that, under these circumstances,
it was error to give the jury the emergency instruction.
Both Lifson and Klink worked in the MONY Plaza, a large
office complex in Syracuse containing two 20-story high-rise
office towers.
MONY Plaza is located across the street from the
Harrison Street Garage, where many of the employees park their
cars during the work day.
There is, as a result, a substantial
amount of pedestrian traffic crossing Harrison Street between the
Towers and the garage, particularly during rush hours.
Pedestrians would commonly cross Harrison Street where the MONY
Towers' exit lines up with the entrance to the garage, despite
the absence of a marked crosswalk at that location.
On February 29, 2000, the day of the accident, Klink
retrieved his car after work.
At approximately 4:05 pm, he was
attempting to make a left-hand turn onto Harrison Street from
Harrison Place.
Harrison Street is a three-lane, one-way road,
with traffic running from east to west.
Klink had been
proceeding north on Harrison Place, which forms a "T"
intersection with Harrison Street and was waiting to turn to the
west.
Although Klink worked at the MONY Towers, he testified
that he was not familiar with driving this particular route
because he parked in different locations throughout the city,
rather than in the same place every day.
Klink testified that he stopped at the stop sign to
make the left turn onto Harrison Street, but that his view of
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No. 157
oncoming traffic was partially obstructed by parked cars in the
left-hand lane of Harrison Street and he had to "creep up" in
order to see the approaching vehicles.
He had noticed that there
were pedestrians crossing Harrison Street to his left, but he
also asserted that he had looked in that direction and "cleared
the road" before making the turn.
He further testified that he
had been looking to his right, toward the oncoming traffic when
he started turning.
He maintained that, when he looked back to
his left, mid-turn, he was blinded by the sun, "all of a sudden."
His reaction was to look down and to his right and, when he
looked up, the first object he saw was Ms. Lifson.
Although he
applied the brakes, he was unable to avoid hitting her, having
seen her only a fraction of a second prior to impact.
At the
time of the accident, Ms. Lifson had been wearing a red coat.
There was no evidence that Ms. Lifson darted out in front of
Klink's car, or that Klink was traveling at an excessive rate of
speed.
Plaintiff commenced this action against Klink and the
City of Syracuse1 alleging causes of action in negligence and
failure to study/plan for pedestrian traffic.2
was limited to the issue of liability.
The ensuing trial
As noted, pursuant to
1
The action is not final as to the City of Syracuse and the
City is not a party to this appeal.
2
The action was discontinued as against a third defendant
(CGU Insurance) by stipulation dated October 14, 2002.
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No. 157
Klink's request and over plaintiff's objection, the trial court
gave the jury an emergency doctrine instruction in Klink's favor.
The instruction generally conveyed to the jury that it had to
determine whether Klink was in fact confronted with an emergency
situation not of his own making and, if so, whether his conduct
in response to that situation was that of a reasonably prudent
person.
The jury was free to reject both of those propositions,
but if it determined that he had faced an emergency situation and
acted reasonably, it was to find for Klink.
The jury returned a verdict attributing negligence to
the City of Syracuse and Ms. Lifson and apportioning fault at 15%
and 85%, respectively.
Klink was found not negligent and the
action was dismissed as against him.
The Appellate Division affirmed, finding that the
emergency instruction was properly given, as there was a
reasonable view of the evidence showing that the sun glare was a
sudden and unforeseen occurrence (72 AD3d 1523 [2010]).
One
Justice dissented and would have found that Klink was not
entitled to an emergency instruction because the sun glare should
have been anticipated and was not unexpected in light of the
circumstances surrounding the accident, including the sunny
weather and the time of day.
We granted plaintiff leave to
appeal and now reverse.
The common-law emergency doctrine "recognizes that when
an actor is faced with a sudden and unexpected circumstance which
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No. 157
leaves little or no time for thought, deliberation or
consideration, or causes the actor to be reasonably so disturbed
that the actor must make a speedy decision without weighing
alternative courses of conduct, the actor may not be negligent if
the actions taken are reasonable and prudent in the emergency
context, provided the actor has not created the emergency"
(Caristo v Sanzone, 96 NY2d 172, 174 [2001] [internal quotation
marks and citation omitted]).
The doctrine recognizes that a
person confronted with such an emergency situation "cannot
reasonably be held to the same accuracy of judgment or conduct as
one who has had full opportunity to reflect, even though it later
appears that the actor made the wrong decision" (Rivera v New
York City Tr. Auth., 77 NY2d 322, 327 [1991] [citations
omitted]).
We have, however, acknowledged, that the "rationale
for this doctrine . . . has been somewhat eroded by the evolution
from contributory negligence to comparative negligence.
With the
advent of the ability of juries to allocate fault and apportion
damages, the viability of the doctrine has been questioned by
some jurisdictions, with a few states going so far as to abolish
it" (Caristo, 96 NY2d at 174).
The trial judge must make the threshold determination
whether a reasonable view of the evidence supports the existence
of a qualifying emergency (see Caristo, 96 NY2d at 175).
When
reviewing the determination that an emergency instruction was
warranted, we evaluate the evidence in the light most favorable
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No. 157
to the party requesting the charge (see Caristo, 96 NY2d at 175).
In Caristo, the trial court gave an emergency
instruction in favor of the defendant, who had been driving in
icy conditions when his car slid down a hill, past a stop sign
and hit the plaintiff's vehicle.
We reversed and ordered a new
trial, finding no view of the evidence to support the conclusion
that defendant faced a qualifying emergency.
Specifically, since
defendant had been aware of the poor and deteriorating weather
conditions that had existed for at least two hours, the resulting
icy conditions on the road could not be considered "sudden and
unexpected" (see Caristo, 96 NY2d at 175).
By contrast, in Ferrer v Harris (55 NY2d 285 [1982]),
we found that the defendant driver, whose vehicle struck a child
who ran out into the street, was entitled to an emergency
doctrine charge.
The defendant had testified that he was driving
well below the posted speed limit and that he stopped abruptly
when he saw the child step off the sidewalk and run into the
street between the parked cars.
We determined that "it [was]
more than conceivable that a jury could conclude that this
defendant was faced with an emergency" (Ferrer, 55 NY2d at 292).
The situation presented in this case bears closer
resemblance to that in Caristo.
While Klink did not drive this
particular route often, he was familiar with the general area
since he worked in the MONY Towers.
Klink was about to turn to
the west at a time of day that the sun would be setting.
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It is
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No. 157
well known, and therefore cannot be considered a sudden and
unexpected circumstance, that the sun can interfere with one's
vision as it nears the horizon at sunset, particularly when one
is heading west.
This is not to say that sun glare can never
generate an emergency situation but, under the circumstances
presented, there is no reasonable view of the evidence under
which sun glare constitutes a qualifying emergency.
Moreover, the error in giving the emergency instruction
was not harmless.
The improper charge permitted the jury to
consider Klink's action under an extremely favorable standard.
Because the application of that instruction to the facts
presented could have affected the outcome of the trial, it was
not harmless error (see e.g. Garricks v City of New York, 1 NY3d
22, 27 [2003]).
Plaintiff's remaining contentions are without merit.
Accordingly, the order of the Appellate Division,
insofar as appealed from, should be reversed, with costs, the
amended complaint reinstated as against defendant Derek Klink,
and the case remitted to Supreme Court for further proceedings
consistent with this opinion.
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Alexander Lifson, &c. v City of Syracuse and Derek J. Klink
No. 157
SMITH, J.(dissenting):
Plaintiff's argument here rests on the seemingly
obvious proposition that no one should be surprised to find the
sun setting in the west.
event.
I admit that sunset is a foreseeable
Yet surely everyone who has driven a car knows that good
drivers are sometimes surprised to find the sun in their eyes.
Drivers cannot be expected to have always at the forefront of
their minds the time of day, the season of the year, the
direction they are traveling, the weather conditions and the
presence or absence of obstruction in a particular spot.
Therefore, sun glare, as the majority appears to acknowledge, can
sometimes present an emergency situation (majority op at 7).
In deciding whether an emergency instruction was
properly given, the issue is not whether the emergency was
foreseeable; it is whether it was sudden and unexpected.
cases illustrate the distinction.
Our
In Ferrer v Harris (55 NY2d
285 [1982]), the defendant driver was passing a park where he
knew that children played, and it was obviously foreseeable that
a child would step in front of his car; but the event was sudden
and unexpected when it happened, and the driver was therefore
entitled to an emergency instruction.
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In Amaro v City of New
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No. 157
York (40 NY2d 30 [1976]), plaintiff was a firefighter who was
injured in a firehouse while responding to a fire alarm; we held
that the alarm, foreseeable as it was for that plaintiff in that
location, was sudden and unexpected and that the plaintiff was
properly accorded the benefit of an emergency charge.
In Kuci v
Manhattan & Bronx Surface Tr. Operating Auth. (88 NY2d 923, 924
[1996]), the defendant's employee, a bus driver, was familiar
with the intersection where the accident occurred and knew "that
cars frequently turned right from the left lane in front of buses
in this area."
We nevertheless held that it was error to deny an
emergency charge, because the driver's general awareness that
such turns often happen "would not preclude a jury from deciding
that, as to the events in issue in this case, the driver did not
anticipate being suddenly cut off by this particular car" (id.).
Caristo v Sanzone, 96 NY2d 172 [2001]) appears to be
the only case in which we have held an emergency instruction was
improperly given.
There, the defendant was driving in bad
weather -- a mixture of snow, frozen rain and hail.
emergency was that he encountered a sheet of ice.
The claimed
We held, four
to three, that in view of the driver's knowledge of the weather
conditions "the presence of ice on the hill cannot be deemed a
sudden and unexpected emergency" (id. at 175).
Caristo thus
holds that no one driving through such conditions, while
exercising reasonable care, could be surprised to find that the
road was icy.
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No. 157
A similar holding is not justified here.
The record,
read most favorably to Klink, shows that he was driving on a city
street, where buildings sometimes do and sometimes do not block
the sun, and that he was unfamiliar with the route.
A jury could
surely find that he did not calculate the direction of his
travel, the time of day and the time of year so precisely that he
expected to find the sun in his eyes when he turned.
The
emergency instruction was properly given.
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Order, insofar as appealed from, reversed, with costs, amended
complaint reinstated as against defendant Derek Klink, and case
remitted to Supreme Court, Onondaga County, for further
proceedings in accordance with the opinion herein. Opinion by
Chief Judge Lippman. Judges Ciparick, Graffeo, Pigott and Jones
concur. Judge Smith dissents in an opinion in which Judge Read
concurs.
Decided October 13, 2011
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