88 A.D.2d 566 | N.Y. App. Div. | 1982
Lead Opinion
— Judgment, Supreme Court, New York County (Conway, J.), entered December 4, 1980, upon a jury verdict in defendant’s favor, reversed, on the law and facts, and vacated and a new trial is directed, with costs to abide the event. On June 18,1978, plaintiff was injured when she fell while crossing, with the light, the Riverside Drive service road at the corner of West 97th Street in Manhattan. Plaintiff explained the happening of the occurrence as follows — her foot caught in a pothole (5 inches by 5 inches and 2 inches deep) causing her to fall. She testified that although she had observed the hole in the past, she “was looking for traffic at that point, that’s why I didn’t see the hole * * * The reason I didn’t see the hole, though I have known for years it was there is that this is a place where cars going south on Riverside Drive make a sudden U-turn and go north on the service road * * * so I have to be watching for cars making a sudden swoop around.” The trial court in its charge did not relate the contentions of the plaintiff to the law, but merely instructed the jury generally as to negligence, the duties of the defendant in maintaining its streets, and actual or constructive notice. Plaintiff did not except to the charge nor did she request a charge on “momentary forgetfulness” with respect to her prior knowledge of the pothole. However, during the course of its deliberation, the jury requested a definition of negligence and the ensuing colloquy between the jury and the trial court discloses a de facto concern with this issue. In relevant part the colloquy is as follows: The court: “[Njegligence is the doing of an act * * * which an ordinary prudent person would not do or the failure to do an act which an ordinary prudent person would”. Juror No. 3: “Does the matter of whether it is a subconscious or conscious act have any bearing in this * * * At this point is it possible to be negligent subconsciously, consciously”. The court: “Wait.” Juror No. 3: “Subconsciously, in other words someone is not aware of what they are doing, can it still be under the umbrella of negligence”. Juror No. 2: “He means that if you do something that you should have known or would have led to a definite result, and yet for some reason you didn’t pay attention to what you were doing subconsciously you were thinking about something else is that negligence or is it not negligence.” The trial court, not perceiving the thrust of the jury’s inquiry on the issue of forgetting known danger, gave two inapt examples of negligence and compounded this error by instructing the jury that they were “[a]ll * * * prudent people” thus directing that they apply their own standard of care in conflict with the required standard of what a reasonably prudent person would do. “The failure to have in mind the existence of a dangerous condition at the time one encounters it, even though there had been knowledge of the condition in the past, presents a question of fact. It is for the jury to say whether the failure to have the danger
Dissenting Opinion
dissent in a memorandum by Ross, J., as
follows: The jury instructions as rendered by the trial court were adequate under the circumstances and conveyed to the triers of fact the appropriate standards to be applied. When viewing the charge as a whole, it sufficiently instructs the jury that the applicable test to be employed is the “reasonable prudent man” standard. As the majority of this court notes, the plaintiff failed to object to these instructions nor did she request a charge on “momentary forgetfulness”. However, the trial court did inform the jury that this case was governed by the theories of comparative negligence. It is quite conceivable that in weighing the culpable conduct of both parties, the six jurors were aware that plaintiff could have had a momentary lapse of memory, forgetting that a dangerous condition existed at that intersection. However, this forgetfulness could have been just as easily outweighed by the fact that plaintiff passed this same pothole for the past three years, three times a day, without incident. In any event, the jury was presented with a question of fact which they resolved in favor of the defendant city, which resolution should not now be disturbed (Gross v City of New York, 24 AD2d 751, affd 18 NY2d 830). There is also a