Capicchioni v. MorrisseyCapicchioni v. Morrissey
Appeals (1) from a judgment of the Supreme Court (Bradley, J.), entered November 4, 1992 in Sullivan County, uрon a verdict rendered in favor of defendants, and (2) from an order of said court, entered April 6, 1993 in Sullivan County, which denied plaintiffs’ motion to set aside the verdict.
On July 17, 1988, plaintiff David P. Cаpicchioni (hereinafter Capicchioni) was driving his automobile with his wife, plaintiff Kim Caрicchioni, as a passenger, on County Route 7, a two-lane road separаted by a double yellow line, in the Town of Shawangunk, Ulster County. A vehicle driven by defendant S.A. Morrissey was proceeding in the opposite direction when the two vehicles entered a hairpin curve and collided on the shoulder of defendant’s side of the roаd. After the collision, plaintiffs’ vehicle proceeded some 20 feet, coming tо a stop after striking some rocks.
Plaintiffs commenced a personal injury action against Morrissey and defendant Jeffrey P. Lipshitz, the owner of Morris
We find persuasive plaintiffs’ contention that Supreme Court committed reversible error in both its initial and subsеquent instructions to the jury on the issue of proximate cause. Plaintiffs requested the standard jury instructions on proximate cause which define proximate cause in terms of an act or omission being a cause of an injury, i.e., "that reasonable peoplе would regard it as a cause of the injury” (PJI 2:70, and 1 NY PJI 180 [1993 Supp; emphasis supplied]). However, Supreme Court charged, "[n]ow, an act or omission is a proximate cause of an accident if it is a substantial factor in bringing about the accident. That is, if it has such an effect in producing the accident that reasonable men and women would regard it as the cause of the accident” (emphasis supplied). After the jury requested clarification of the legal definition of "proximate cause”, Supreme Court reemphasized the deviation frоm the standard instructions by stating, "[t]hat is, if it has such an effect in producing the accident that reasonable men and women were regarded [sic] as the cause of the accident. Thаt’s what proximate cause is. Okay?” (Emphasis supplied.)
Even though Supreme Court’s jury charge did refer to "a proximate cause” and also instructed on comparative negligence, use of the phrase "the proximate cause” rather than "a proximate cause” was inappropriate, since it implied that there could be only one proximate cause for Capicchioni’s injuries, i.e., defendants’ negligence (see, Galioto v Lakeside
Although plaintiffs did not object to the jury instructions on proximate cause (see, CPLR 4110-b) and thus failed to preserve this issue for appellate review, we nevertheless exercise our discretion to reverse in the interest of justicе, as Supreme Court’s instructions may have had a vital bearing on the close issue of рroximate cause (cf., Winser v Trombley,
In light of our determination, it is unnecessary to consider plaintiffs’ remaining contentions.
Crew III, Casey, Weiss and Yesawich Jr., JJ., concur. Ordered that the judgment and оrder are reversed, as a matter of discretion in the interest of justice, without cоsts, and matter remitted to the Supreme Court for a new trial.
Notes
Capicchioni testified thаt Morrissey’s vehicle was half in the middle of the road and heading straight at him and that he (Capicchioni) could not drive onto the right shoulder because there was a telephone pole. Instead, Capicchioni hit his brakes and immediately turned to his left (crоssing Morrissey’s lane) and into the opposite shoulder where his vehicle was struck by Morrissеy’s vehicle which had also turned into the same shoulder. Capicchioni’s wife testified in similar manner.
Conversely, Morrissey testified that Capicchioni was straddling the yellow line and coming right at him. Morrissey braked and swerved to the right to avoid a collision.