Kizis v. Nehring

Appeal from a judgment of the Supreme Court, Steuben County (Marianne Furfure, A.J.), entered July 6, 2004. The judgment, among other things, dismissed the complaint upon a jury verdict of no cause of action in a personal injury action. It is hereby ordered that the judgment so appealed from be [1107] and the same hereby is reversed on the law without costs, the motion is granted, the verdict is set aside, the complaint is reinstated and a new trial is granted. Memorandum: Plaintiff Samantha Kizis, by her father and natural guardian, Angelo Rivera, and plaintiff Angelo Rivera, individually, commenced this action seeking damages for injuries sustained by Samantha when the vehicle driven by Samantha’s mother, defendant Christa Kizis, in which Samantha was a passenger, was involved in a head-on collision with a vehicle driven by defendant Toi L. Nehring. It is undisputed that the Nehring vehicle crossed the double yellow centerline of a two-lane highway into the path of the Kizis vehicle. Nehring testified at trial that she crossed into the opposing lane of travel to avoid hitting “a large brown what appeared to be a bird” that was either “flying or running” toward her vehicle. The jury returned a verdict of no cause of action, and Supreme Court denied plaintiffs’ motion to set aside the verdict and for judgment notwithstanding the verdict or a new trial. We agree with plaintiffs that the court erred in charging the emergency doctrine (see Caristo v Sanzone, 96 NY2d 172, 175 [2001]; see generally PJI 2:14 [2006]). Viewing the evidence in the light most favorable to Nehring, who requested the charge (see Rivera v New York City Tr. Auth., 77 NY2d 322, 326 [1991], rearg denied 77 NY2d 990 [1991]), and particularly in view of the vagueness and equivocation in the explanations of Nehring concerning the circumstances that allegedly caused her to cross into the opposing lane of travel, we conclude that there is no reasonable view of the evidence that Nehring was confronted by a “qualifying emergency” (Caristo, 96 NY2d at 175; see Rivera, 77 NY2d at 327), i.e., a sudden and unforeseeable occurrence that would have made it reasonable and prudent for Nehring to react by swerving into the opposing lane of travel and colliding head-on with an oncoming vehicle (see Rivera, 77 NY2d at 327; see also Carson v De Lorenzo, 238 AD2d 790, 790-791 [1997], lv denied 90 NY2d 810 [1997]; Anderson v Krauss, 204 AD2d 1074, 1075 [1994]). We further note that the “defect in applying the doctrine to [both] drivers was that it neutralized its application as to [Samantha’s mother], to whom it properly applied” (Brennan v Felter, 48 AD2d 846, 847-848 [1975]). In any event, even assuming, arguendo, that the court properly charged the emergency doctrine, we nevertheless would conclude that the court erred in denying plaintiffs’ motion to set aside the verdict as against the weight of the evidence (see CPLR 4404 [a]). In our view, the verdict could not have been reached upon any fair interpretation of the evidence (see gener [1108] ally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Wilson v Mary Imogene Bassett Hosp., 307 AD2d 748 [2003]; Kuncio v Millard Fillmore Hosp., 117 AD2d 975, 976 [1986], lv denied 68 NY2d 608 [1986]). “It is . . . well settled . . . that the emergency doctrine does not automatically absolve a person from liability for his or her conduct” (Sossin v Lewis, 9 AD3d 849, 851 [2004], amended on other grounds 11 AD3d 1045 [2004]). “Indeed, ‘[a] driver confronted with an emergency situation may still be found to be at fault for the resulting accident where his or her reaction is found to be unreasonable or where the prior tortious conduct of the driver contributed to bringing about the emergency’ ” (id., quoting Mehring v Cahill, 271 AD2d 415, 415 [2000]; Ferrer v Harris, 55 NY2d 285, 293 [1982], mot to amend remittitur granted 56 NY2d 737 [1982]; Lester v Chmaj, 251 AD2d 1069, 1070 [1998]). Here, according to the testimony of Nehring, she either swerved her vehicle directly into the path of the oncoming vehicle, or she remained for “seconds” in the opposing lane of travel while looking in her rear-view mirror, whereupon the head-on collision occurred. We conclude that Nehring’s self-described emergency, i.e., the presence of what appeared to be a bird “flying or running” toward Nehring’s vehicle, would not justify or excuse such an unreasonable and imprudent reaction on the part of Nehring. We have considered plaintiffs’ remaining contentions and conclude that they are without merit. All concur except Martoche and Pine, JJ., who dissent and vote to affirm in the following memorandum.