Supreme Court of New York, Appellate Division, First Department
Wallace D. Gossett, Brooklyn (Lawrence Heisler of counsel), for appellants.
Ephrem J. Wertenteil, New York for respondent.
Gonzalez, P.J., Saxe, McGuire, Acosta, Abdus-Salaam, JJ.
Judgment, Supreme Court, New York County (Judith J. Gishe, J.), entered April 27, 2009, after a jury trial, awarding plaintiff $1.8 million for past and future pain and suffering, reversed, on the law, without costs, the judgment vacated and the matter remanded for a new trial.
Even assuming that the jury reasonably could find that a bus struck plaintiff after its driver ran a red light at the intersection of Madison Avenue and 125th Street while proceeding north, the evidence unquestionably established that plaintiff was struck while he was in Madison Avenue itself, not on the sidewalk on the east side of the avenue, some seven feet north of the crosswalk. The jury could not rationally have found fault on the part of the bus driver unless it accepted plaintiff's theory that the bus was traveling "too close" to the curb as it approached the bus stop. The notion that the bus was "too close" however, is founded solely on the testimony of plaintiff's expert, that a bus driver pulling up to a bus stop should "[g]ive [her]self a cushion of space, six [feet] a lane" before pulling over to the curb. The expert's opinion about this safety cushion was supported by nothing (see Jones v City of New York, 32 A.D.3d 706, 707  [rejecting expert's opinion regarding ostensible safety practice because "no support was offered for th[e] assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry"]). But as defendant Transit Authority failed to object to the expert's testimony, the point must be conceded to plaintiff for purposes of this appeal . It should be stressed, however, that there is no evidence that the bus was closer than two feet, seven inches from the curb when plaintiff was struck. Even more importantly, plaintiff's own theory of the case, a theory that is compelled by the physical evidence and is consistent with the testimony of independent witnesses, was that plaintiff was hit immediately after he stepped off the sidewalk and into the path of the bus on Madison Avenue. As is discussed below, it is indisputable, moreover, that plaintiff stepped off without looking when he was about seven feet north of the crosswalk.
Although plaintiff points to inconsistencies in the statements given by the driver, those inconsistencies are not affirmative proof of her negligence (see Barnes v City of New York, 44 A.D.3d 39, 47 [1st Dept. 2007] [Sullivan, J.]). In his brief, plaintiff refers to "damning conclusions" regarding the driver's conduct contained in an investigatory report prepared by a Transit Authority supervisor. It is clear, however, that the portions of the report to which plaintiff refers were not admitted into evidence. No mention of those conclusions was made by any of the parties during their summations. If the findings were in evidence, it is simply inconceivable that plaintiff's counsel nonetheless made no mention of them.
The first reason we should reverse is that plaintiff should not have received the benefit of a jury charge under the Noseworthy doctrine (Noseworthy v City of New York, 298 NY 76 ). That instruction, which permits a plaintiff to prevail on a lesser degree of proof, is borne of necessity. It mitigates the unfairness of effectively foreclosing recovery by a plaintiff who is otherwise unable to present a case because of amnesia stemming from the very accident or event for which he seeks to hold the defendant liable. But the potential unfairness to the defendant from a Noseworthy charge also is apparent and deserving of the law's solicitude. As we have held, "It is only where the memory loss has effectively prevented a plaintiff from describing the occurrence that invocation of the [Noseworthy doctrine] is warranted" (Jarrett v Madifari, 67 A.D.2d 396');">67 A.D.2d 396, 403 ). In ruling that a Noseworthy instruction should not have been given, we stated as follows:
"[O]n this record it is clear that plaintiff..., although he apparently suffers from a memory defect, is not entitled to application of this [the Noseworthy] rule. Patently, said plaintiff testified in some detail at an examination before trial as to the occurrence and in much less detail at the trial. His answers, embodied in his deposition, were read at trial. Thus, in large measure, plaintiff was able to give to the trial court his version of the occurrence... Whether that description proceeds by way of trial testimony or testimony at an examination before trial is irrelevant" (id.).
Similarly, in Jarvis v LaFarge N. Am., Inc. (52 A.D.3d 1179');">52 A.D.3d 1179 ), the Fourth Department held that the trial court properly denied the Noseworthy instruction requested by the plaintiff motorcyclist, who "was unable to recall the details of the accident" (id. at 1180) because of the retrograde amnesia he sustained (id. at 1181). The court stressed that "[a]ny gaps in plaintiff's recollection of the accident could be pieced together from plaintiff's trial testimony and the testimony of nonparty eyewitnesses" (id. [internal quotation marks and brackets omitted]).
Given plaintiff's deposition testimony, the Noseworthy instruction was a manifest error. He recalled that the weather that day was "[f]air, " that the accident occurred at 9:15 and that he had parked his car and crossed the street to call a friend at a telephone booth with two phones right behind a mailbox on the east side of Madison; in addition to recalling the location of the accident, he recalled that he had been unable to reach his friend, got his money back and turned to the left while he was on the sidewalk; he recalled that when he turned he was on the sidewalk and "[t]hat is when the bus hit me, struck me inside the head." Asked if he saw the bus before it hit him, he answered, "No." Asked where he was looking when he was hit, his recollection enabled him to testify, "I was looking straight. I don't know." Asked again, he was able to testify, "When the bus hit me, I was looking - when it hit me, I was looking straight." By "straight, " he meant "across the street." When asked, "did you see what portion of the bus came into contact with you?, " he first answered, "The mirror. The mirror struck me." But when asked, "Did you actually see the mirror come into contact with you?, " he expressed no uncertainty and answered, "No. When I turned, made one step back to my left, that is when I saw the bus. It struck me on the side of the head." Thus, he even recalled seeing the bus at virtually the moment of impact. He was unequivocal that it was the mirror that hit him; "It struck me, you know, side of the head." Asked if he walked into the side of the bus, his answer was "No." In response to specific questions, he recalled that he did not hear a horn honk before he was hit and that he had not stepped off the curb.
But although that deposition testimony is alone sufficient to compel the conclusion that plaintiff was not entitled to a Noseworthy instruction (see Jarrett, 67 A.D.2d at 403, supra [whether the plaintiff's description of the occurrence "proceeds by way of trial testimony or testimony at an examination before trial is irrelevant"]), there is much more. Plaintiff also testified at a General Municipal Law § 50-h hearing at which he gave essentially the same testimony about the accident itself, about where he was (on the sidewalk), what hit him (the mirror) and about not hearing the bus, expressing uncertainty only about whether it was the mirror on the left or the right side of the bus. That plaintiff professed at trial not to recall whether he was completely on the sidewalk or partly on the street is of no moment. It does not negate the fact that his deposition and § 50-h testimony demonstrate that he "was able to give to the trial court his version of the occurrence" (id.).
At trial, too, plaintiff was able to present his version of the events. Asked how the accident occurred, he recalled seeing the mirror just before he was struck: "All I saw is just the mirror of the bus when it came back and knocked me down." He was able to recall what he had been doing just before he was hit: after using the phone, he "stepped back to the curb, close to the curb." Indeed, he recalled that he "was back up close to the curb... real close to the curb." Moreover, he recalled that he had been standing between the mailbox and the telephones. In addition, his recollection also was good enough for him to tell the jury that he had not consumed any alcohol that day and had not stopped anywhere to drink alcohol. Thus, plaintiff was not unable to muster any response to the testimony of the triage nurse, consistent with the contemporaneous notes he prepared after plaintiff was taken to the hospital, that plaintiff had told him he was intoxicated.
Although the concurrence cites Sala v Spallone (38 A.D.2d 860 ), that decision only exposes another fatal defect in plaintiff's position. In Sala, the Second Department held that a Noseworthy instruction should be given "if the jury is satisfied, from the medical and other evidence presented, that [the plaintiff] suffers from a loss of memory that makes it impossible for him to recall events at or about the time of the accident and that the injuries he received as a result of the accident were a substantial factor in causing his memory loss" (id. [emphasis added]). Here, it plainly was not impossible for plaintiff to recall events at or about the time of the accident. The neurologist who testified on behalf of plaintiff certainly never so testified. Nor did he offer anything remotely like an opinion that the prior testimony given by plaintiff was unreliable on account of the injuries he sustained. In fact, when asked to explain the diagnosis of "anterio/retrograde amnesia, " the neurologist testified only that "anterio/retrograde amnesia is you don't remember things that happened subsequent to the accident - after the accident" (emphasis added). We might indulge the assumption that the jury nonetheless realized that this testimony mistakenly described only the anteriograde amnesia component of the diagnosis and that plaintiff's retrograde amnesia referred to an inability to remember events occurring before the accident. But even so, the jury heard no evidence that plaintiff's memory had been impaired so as to render unreliable his hearing and deposition testimony about the events prior to the accident. And, of course, when he gave that testimony, plaintiff never testified that he thought that the details that he recalled might be wrong because of his injuries . The trial court concluded that the instruction was proper in significant part because the core of the account plaintiff gave at his deposition and § 50-h testimony was contradicted by the physical evidence. That is, and as plaintiff's counsel acknowledged in his opening statement, plaintiff could not have been struck by the mirror because it was too high up to have come into contact with plaintiff's head. According to the trial court, a Noseworthy instruction was warranted because of the "competent medical evidence that plaintiff did have amnesia and his version of the events was at odds with most of the eyewitnesses as well as not detailed." Even putting aside the infirmity noted above in the testimony about plaintiff's amnesia, the trial court erred because plaintiff did testify in detail about the occurrence. The trial court's finding to the contrary is manifestly wrong. As noted, plaintiff's testimony that he was struck by the mirror of the bus is what was at odds with the accounts given by other eyewitnesses (and with the objective fact that he could not have been hit by the mirror). But it scarcely follows that his testimony about this one detail is sufficient to warrant a Noseworthy instruction. To the contrary, the precedents discussed above make clear that it is not.
Moreover, there certainly are other possible explanations, i.e., ones other than amnesia, for plaintiff's repeated insistence that he was hit by the mirror. If the last thing plaintiff saw was the mirror, his testimony that he was struck by the mirror may have been the result of a simple mistake, rather than a brain injury. Or, as the Transit Authority argues, "[p]laintiff would appear far less blameworthy if he were on the curb and the projecting mirror of a passing bus s[truck] him in the head than if he had walked off the curb... and... into [the bus'] doors." But in any event, regardless of whether plaintiff was mistaken or lied to avoid admitting he had stepped off the curb and into the street without ...