Spells v. Foley

In a negligence action to recover damages for personal injuries, etc., plaintiff James Spells appeals, as limited by his brief, from so much of a judgment of the Supreme Court, Rockland County (Marbach, J.), entered May 13, 1980, as dismissed his cause of action for personal injuries, upon a jury verdict, that he did not “suffer a serious injury resulting from the accident”. Judgment reversed insofar as appealed from, on the law, with costs to appellant to abide the event, and new trial granted with respect to appellant’s personal injury cause of action. It was error for the trial court to charge the jury that appellant had the burden of proving his case by a “preponderance of the [credible] testimony *** with reasonable certainty”. The charge was confusing and could easily have misled the jury (see DiLorenzo v Venosa, 50 AD2d 603). In addition, it was improper for the trial court to refuse appellant’s 787 request to define serious injury. There are specific statutory criteria for serious injury under the statute (Hezekiah v Williams, 106 Misc 2d 407, affd 81 AD2d 261). Without a clear understanding of the nature of the injury which appellant must prove, the jury could not make a proper, reasoned evaluation of the evidence submitted by the appellant (see Slack v Crossetta, 75 AD2d 809). Hopkins, J. P., Mangano, Rabin and Cohalan, JJ., concur.