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Knight v. Holland

Supreme Court of New York, Fourth Department

March 31, 2017





         Appeal from a judgment of the Supreme Court, Onondaga County (Donald A. Greenwood, J.), entered January 28, 2016. The judgment, among other things, awarded plaintiff money damages as against defendants.

         It is hereby ORDERED that the judgment so appealed from is unanimously modified on the law by granting the posttrial motion in part and setting aside the verdict with respect to damages for past and future loss of household services and as modified the judgment is affirmed without costs, and a new trial is granted on damages for future loss of household services only unless plaintiff, within 20 days of service of a copy of the order of this Court with notice of entry, stipulates to reduce the award of damages for future loss of household services to $100, 000, in which event the judgment is modified accordingly and as modified the judgment is affirmed without costs.

         Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained at an automobile race track operated by defendant Circle L, LLC (Circle L). Plaintiff's son was racing on the night plaintiff was injured, and plaintiff paid a fee to enter the pit area and signed a liability waiver form. While he was in the pit area, plaintiff was struck by a race car driven by defendant Robert Holland (Holland), who was backing up the vehicle with the assistance of two spotters on his way to the track for a qualifying heat. Plaintiff alleged that Holland was negligent in the operation of his vehicle and that Circle L was negligent in the operation of the pit area, in which there were no speed limits or designated parking areas, and both vehicles and pedestrians were permitted to travel freely through it. Following a trial, the jury apportioned liability for the accident 50% to Circle L, 30% to Holland, and 20% to plaintiff, and awarded plaintiff damages for past and future pain and suffering and past and future loss of household services. Supreme Court denied defendants' posttrial motion to set aside the verdict, and this appeal ensued.

         Contrary to defendants' contention, the court properly granted plaintiff's motion for a directed verdict establishing that the liability waiver was invalid and that the action was not barred by the doctrine of primary assumption of the risk, inasmuch as there was "no rational process" by which the jury could have found in favor of defendants on those issues (Szczerbiak v Pilat, 90 N.Y.2d 553, 556). With respect to the waiver, General Obligations Law § 5-326 voids any such agreement entered into in connection with, as relevant here, the payment of a fee by a "user" to enter a place of recreation. Plaintiff testified at trial that he was a mere spectator on the night of the accident, thereby establishing that he was a user entitled to the benefit of section 5-326 (see Gilkeson v Five Mile Point Speedway, 232 A.D.2d 960, 960-961; Gaskey v Vollertsen, 110 A.D.2d 1066, 1066-1067), and there was no evidence from which the jury could have rationally found that plaintiff was a participant in the event whose attendance was "meant to further the speedway venture" (Smith v Lebanon Val. Auto Racing, 167 A.D.2d 779, 780; see generally Howell v Dundee Fair Assn., 73 N.Y.2d 804, 806). Although defendants' expert witness testified that "[e]veryone in the pits is a participant, " that opinion was not supported by any evidentiary foundation and therefore lacked probative force (see generally Diaz v New York Downtown Hosp., 99 N.Y.2d 542, 544; Wittman v Nice, 144 A.D.3d 1675, 1676).

         With respect to the doctrine of primary assumption of the risk, we conclude that the risk that a pedestrian will be struck by a driver backing up in the pit area, well before the driver is participating in a race, is not inherent in the activity of automobile racing (see Hawkes v Catatonk Golf Club, 288 A.D.2d 528, 529-530; Green v WLS Promotions, 132 A.D.2d 521, 521-522, lv dismissed 70 N.Y.2d 951; see generally Morgan v State of New York, 90 N.Y.2d 471, 488), and thus that the doctrine is inapplicable to this case (see Morgan, 90 N.Y.2d at 488; Repka v Arctic Cat, Inc., 20 A.D.3d 916, 919-920; see generally Custodi v Town of Amherst, 20 N.Y.3d 83, 87-90).

         We reject defendants' further contention that the doctrine of law of the case precluded the court from directing a verdict in plaintiff's favor after it had denied prior motions by plaintiff directed at the issues of waiver and primary assumption of the risk, including a motion for partial summary judgment. " A denial of a motion for summary judgment is not necessarily... the law of the case that there is an issue of fact in the case that will be established at the trial' " (Wyoming County Bank v Ackerman, 286 A.D.2d 884, 884; see Bukowski v Clarkson Univ., 86 A.D.3d 736, 739, affd 19 N.Y.3d 353).

         Defendants further contend that the court erred in failing to instruct the jury on implied assumption of the risk as an aspect of plaintiff's culpable conduct (see generally CPLR 1411). As an initial matter, we agree with defendants that they preserved this contention for our review. After the court granted plaintiff's motion for a directed verdict, defendants' attorney made an argument addressed to the jury's consideration of assumption of the risk and plaintiff's comparative negligence, and the court stated that assumption of the risk "is not part of this case." While defendants did not specifically request a charge on implied assumption of the risk (see PJI 2:55), we conclude that they sufficiently alerted the court to the relevant question and preserved the issue for our review (see generally Piotrowski v McGuire Manor, Inc., 117 A.D.3d 1390, 1392-1393). We further agree with defendants that a charge on implied assumption of the risk should have been given because there was evidence that plaintiff "disregard[ed] a known risk by voluntarily being in a dangerous area" (Beadleston v American Tissue Corp., 41 A.D.3d 1074, 1076; see Romanchick v Havens, 159 A.D.2d 1022, 1022). Inasmuch as the jury was properly instructed on comparative negligence and apportioned 20% of the liability for the accident to plaintiff, however, we conclude that this error did not prejudice a substantial right of defendants and thus does not warrant reversal (see CPLR 2002; Wild v Catholic Health Sys., 85 A.D.3d 1715, 1717-1718, affd 21 N.Y.3d 951; Capelli v Prudential Bldg. Maintenance of N.Y., 99 A.D.2d 501, 501-502; cf. Shire v Mazzilli, 203 A.D.2d 275, 275).

         Contrary to defendants' contention, the evidence is legally sufficient to support the jury's liability findings. Although plaintiff conceded in his testimony that Holland could not see behind him from inside his race car, that testimony did not constitute a formal judicial admission that would conclusively establish the fact admitted (see generally Morgenthow & Latham v Bank of N.Y. Co., 305 A.D.2d 74, 79, lv denied 100 N.Y.2d 512). Moreover, regardless of whether Holland could have seen plaintiff, the evidence supported a finding of liability against him on the theory that he drove too fast in reverse in the pit area. Defendants' challenge to the finding of liability against Circle L is based on alleged defects in the opinion of plaintiff's expert, and we reject it. Whether the pit area was reasonably safe under the circumstances was within the understanding of the jury and did not require expert proof (see generally Havas v Victory Paper Stock Co., 49 N.Y.2d 381, 386; Murphy v Crecco, 255 A.D.2d 300, 300; Humiston v Rochester Inst. of Tech., 125 A.D.2d 957, 958), and we conclude in any event that the expert had a sufficient foundation for his opinions (see generally Cuevas v City of New York, 32 A.D.3d 372, 374). The liability verdict is not against the weight of the evidence, inasmuch as "it cannot be said that the preponderance of the evidence in favor of [defendants] is so great that the verdict could not have been reached upon any fair interpretation of the evidence" (Homan v Herzig [appeal No. 2], 55 A.D.3d 1413, 1414 [internal quotation marks omitted]; see Lolik v Big V Supermarkets, 86 N.Y.2d 744, 746).

         Defendants further contend that the awards of damages for past and future loss of household services are not supported by legally sufficient evidence and are against the weight of the evidence, and we conclude that their posttrial motion adequately preserved this contention for our review notwithstanding their failure to object to the inclusion of loss of household services as a category of damages on the verdict sheet (see generally CPLR 4404 [a]; City of Plattsburgh v Borner, 38 A.D.3d 1047, 1048). We agree with defendants that the award for past loss of household services must be set aside because there was no evidence that plaintiff incurred "any actual expenditures on household services between the accident and the date of verdict" (Schultz v Harrison Radiator Div. Gen. Motors Corp., 90 N.Y.2d 311, 320).

         In light of the evidence that plaintiff could no longer perform certain household services that he had performed prior to the accident, the jury was entitled to find that plaintiff was "reasonably certain" to incur damages for future loss of household services (id. at 321; see Presler v Compson Tennis Club Assoc., 27 A.D.3d 1096, 1097; Merola v Catholic Med. Ctr. of Brooklyn & Queens, Inc., 24 A.D.3d 629, 631). In addition, "[e]xpert testimony, although permissible, is not a prerequisite to establishing the value of household services" (Kastick v U-Haul Co. of W. Mich., 259 A.D.2d 970, 970). Nonetheless, in view of the lack of any testimony establishing the value of plaintiff's household services, as well as the fact that the future award was intended to cover a period of only nine years, we conclude that the verdict insofar as it awarded damages of $300, 000 for future loss of household services is against the weight of the evidence (see Leto v Amrex Chem. Co., Inc., 85 A.D.3d 1509, 1510-1511; Hixson v Cotton-Hanlon, Inc., 60 A.D.3d 1297, 1298; Merola, 24 A.D.3d at 631; cf. Kihl v Pfeffer, 47 A.D.3d 154, 161). Based on the evidence presented at trial, we conclude that $100, 000 is the maximum amount that the jury could have awarded for future loss of household services. We therefore modify the judgment accordingly, and ...

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