The following papers, numbered 1 to 3, were considered in connection with Plaintiff's motion pursuant to Civil Practice Law and Rules § 4404(a) to set aside the jury verdict of April 28, 2011:

PAPERSNUMBERED

NOTICE OF MOTION/AFFIDAVIT/EXHIBITS1 [*2]

AFFIRMATION IN OPPOSITION2

REPLY AFFIDAVIT3

Upon the foregoing papers, the Court now rules as follows:

By way of history, this action stems from a one-car motor vehicle accident which occurred on July 12, 2008. On that date, Defendant Brittany Lahm was operating a vehicle owned by Defendant Philip Lahm, and had four passengers in the vehicle with her. Plaintiff was a rear seat passenger, along with decedent Brandon Berman, and another teenage male. The group was headed home from a day at the Jersey Shore and Defendant Brittany Lahm was headed north on the New York State Thruway to drop off one of the passengers. At some point, while traveling northbound on the New York State Thruway just south of the Suffern exit, decedent Brandon Berman pulled the bikini strings of Defendant Brittany Lahm's bathing suit, causing her to take her hands off the wheel to cover herself, and thereby losing control of the vehicle. The vehicle then veered out of the lanes and struck the guardrail, flipped multiple times in the air, crossed over into the southbound lanes, and came to rest on it's roof in the middle of the southbound lanes. As a result of the tragic accident, Brandon Berman died, and Plaintiff suffered considerable injuries as well (there was another vehicle that was forced off the roadway in the southbound lanes however that case was settled separate and apart from this action and is not relevant to this motion or this decision).

Plaintiff brought an action against Defendants Brittany Lahm and Philip Lahm alleging that Defendant Brittany Lahm's negligence caused the accident because of her reaction to decedent Brandon Berman's conduct. It is not disputed that the person that pulled her bikini strings causing her top to fall down was decedent Brandon Berman. However, Plaintiff argued and continues to argue that Defendant Brittany Lahm's negligent conduct in taking her hands off the wheel and losing control of her vehicle caused the accident. Specifically, Plaintiff argues that Defendant Brittany Lahm should have slowed her vehicle down, kept both hands on the wheel, and pulled off of the highway, before attempting to re-tie her bathing suit, and the mere fact that she may have been embarrassed by the exposure of her breasts to the passengers in the car does not excuse her failure to do so.

The matter proceeded to a jury trial which concluded with a unanimous verdict on April 28, 2011. In several charging conferences, the Court discussed the closing jury instructions which had been requested by both parties and allowed both counsel to argue orally against charges which they objected to. As part of the charge, the Court read the following jury instructions (only relevant instructions raised in the instant motion included):

PJI 2:26. Statutory Standard of Care - Vehicle and Traffic Law Violation

The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by motorists and pedestrians alike. Plaintiff claims that defendant failed to comply with Sections 1180(a), 1180-a, and 1226 of the Vehicle and Traffic Law. Sections 1180(a), 1180-a, and 1226 provides as follows:

VEHICLE AND TRAFFIC LAW 1180(a)

§ 1180. Basic rule and maximum limits (a) No person shall drive a vehicle at a speed greater than is reasonable and prudent under the conditions and having regard to the actual and potential hazards then existing.

[*3]VEHICLE AND TRAFFIC LAW 1180-a

§ 1180-a. Maximum speed limits

The posted speed limit on the section of the New York State Thruway where the accident occurred is 65 miles per hour. [BOTH ATTORNEYS AGREED TO THIS LANGUAGE IN CHARGING CONFERENCE AS OPPOSED TO READING THE LENGTHY VEHICLE AND TRAFFIC LAW SECTION].

VEHICLE AND TRAFFIC LAW 1226

§ 1226. Control of steering mechanism No person shall operate a motor vehicle without having at least one hand or, in the case of a physically handicapped person, at least one prosthetic device or aid on the steering mechanism at all times. when the motor vehicle is in motion.

In considering the evidence in this case, you must determine whether plaintiff has proved that defendant failed to comply with those statutes. If you find that defendant violated those statutes, such a violation constitutes negligence.

You cannot disregard a violation of the statute and substitute some standard of care other than set forth in the statute.

PJI 2:10 Common Law Standard of Care - Negligence Defined - Generally

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.

PJI 2:12Common Law Standard of Care - Foreseeability - Generally

Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but be probable.

There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in the light of what could have been foreseen.

PJI 2:14. Common Law Standard of Care - Emergency Situation [*4]

A person faced with an emergency and who acts without opportunity to consider the alternatives is not negligent if she acts as a reasonably prudent person would act in the same emergency, even if it later appears that she did not make the safest choice or exercise the best judgment. A mistake in judgment or wrong choice of action is not negligence if the person is required to act quickly because of danger. This rule applies where a person is faced with a sudden condition, which could not have been reasonably anticipated, provided that the person did not cause or contribute to the emergency by her own negligence.

If you find that defendant was faced with an emergency and that her response to the emergency was that of a reasonably prudent person, then you will conclude that defendant was not negligent. If, however, you find that the situation facing defendant was not sudden, or should reasonably have been foreseen, or was created or contributed to by the defendant's own negligence, or that the defendant's conduct in response to the emergency was not that of a reasonably prudent person, then you may find that defendant, was negligent. [REQUESTED BY DEFENDANT - READ OVER OBJECTION OF PLAINTIFF]

During deliberations, the jury sent out a question which stated: "Would Judge Garvey please read back the jury instruction the point of law regarding negligence. Taking hands off wheel. Does that make you partially negligent (by law)". The Court again met with the attorneys off the record and outside of the presence of the jury to discuss which jury instructions would be read back. After discussion, the undersigned made the decision to read back three separate instructions:

PJI 2:26. Statutory Standard of Care - Vehicle and Traffic Law Violation

The Vehicle and Traffic Law establishes rules of conduct that must be obeyed by motorists and pedestrians alike. Plaintiff claims that defendant failed to comply with Sections 1180(a), 1180-a, and 1226 of the Vehicle and Traffic Law. Sections 1180(a), 1180-a, and 1226 provides as follows:

VEHICLE AND TRAFFIC LAW 1226

§ 1226. Control of steering mechanism No person shall operate a motor vehicle without having at least one hand or, in the case of a physically handicapped person, at least one prosthetic device or aid on the steering mechanism at all times when the motor vehicle is in motion.

PJI 2:10 Common Law Standard of Care - Negligence Defined - Generally

Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably prudent person would have done under the same circumstances.

PJI 2:12 Common Law Standard of Care - Foreseeability - Generally

Negligence requires both a reasonably foreseeable danger of injury to another and conduct that is unreasonable in proportion to that danger. A person is only responsible for the results of his or her conduct if the risk of injury is reasonably foreseeable. The exact occurrence or exact injury does not have to be foreseeable; but injury as a result of negligent conduct must be not merely possible, but be probable.

There is negligence if a reasonably prudent person could foresee injury as a result of his or her conduct, and acted unreasonably in the light of what could be foreseen. On the other hand, there is no negligence if a reasonably prudent person could not have foreseen any injury as a result of his or her conduct, or acted reasonably in the light of what could have been foreseen.

The jury later returned with a unanimous verdict and the first question on the verdict sheet, "Was the Defendant, Brittany Lahm, negligent?" was answered by all six in the negative.

Plaintiff thereafter filed the instant motion asking this Court to set aside the verdict of the jury and either directing that judgment be entered in favor of the Plaintiff as a matter of law, or in the alternative, ordering a new trial. Plaintiff's argument is as follows:

1.Brittany Lahm's admitted violation of Vehicle and Traffic Law § 1226 constituted negligence as a matter of law and could not be disregarded by the jury.

2.The weight of the evidence also establishes Brittany Lahm's violation of Vehicle and Traffic Law § 1180(A).

3.The jury's verdict may have been influenced by an inadvertent but substantial error in the Court's reading back the applicable law in response to the only jury question.

4.The law, as read to the jury in this case, had no provision for the jury to ignore Brittany Lahm's admitted violation of Vehicle and Traffic Law § 1226. Further, the "Emergency Doctrine" instruction should not have been given to the jury.

5.The Court should set aside the jury's verdict in the interests of justice.

6.Should the Court set aside the jury's verdict, then the Court should direct a verdict in favor of the Plaintiff because her conduct was a proximate cause of the accident. "The issues of negligence and proximate cause are so inextricably intertwined that it would be logically impossible to find negligence without also finding proximate cause." [see, Miele's Affidavit in Support of Motion, pages 16-17].

Defendant opposes the instant motion, arguing that the jury heard all of the relevant evidence, was appropriately charged, and returned a unanimous verdict which should not be disturbed. Further, with respect to the cases cited by Plaintiff standing for the proposition that a violation of the Vehicle and Traffic Law constitutes negligence per se, Defendant distinguishes those cases as not involving facts of interference with the driver. Defendant also argues that the Court appropriately re-charged the jury with the proper instructions after the jury question.

Plaintiff, in the Reply Affidavit, reiterates the position that Defendant Brittany Lahm's concession that she took both hands off the wheel constitutes negligence per se and cannot be disregarded by the jury. Plaintiff also reiterates that the emergency doctrine should only apply in cases where a "danger" is presented. [*5]

The Court will first deal with the argument that the emergency doctrine jury instruction should not have been given. A party requesting the emergency doctrine instruction is entitled to have the jury so charged if, in viewing the evidence in the light most favorable to that party, under some reasonable view of the evidence, an actor was confronted by a sudden and unforeseen occurrence not of the actor's making. [Barath v. Marron, 255 AD2d 280, 281 (App. Div. 2nd Dept. 1998); Holtermann v. Cochetti, 295 AD2d 680, 681 (App. Div. 3rd Dept. 2002)]. Thereafter, the questions of whether an emergency existed and the reasonableness of the response of the actor present questions of fact and are for the jury to decide. [Vitale v. Levine, 44 AD3d 935, 936 (App. Div. 2nd Dept. 2007); Lonergan v. Almo, 74 AD3d 902, 903 (App. Div. 2nd Dept. 2010)].

Under the emergency doctrine, as was instructed to the jury in this matter, when an actor is faced with a sudden and unexpected circumstance which leaves little or no time for thought, deliberation, or consideration, or causes the actor to be reasonably so disturbed that the actor must make a speedy decision without weighing the alternative courses of conduct, the actor may not be negligent if the actions taken are reasonable and prudent in the emergency context. [Lonergan v. Almo, 74 AD3d 902, 903 (App. Div. 2nd Dept. 2010); Smit v. Phillips, 74 AD3d 782, 783 (App. Div. 2nd Dept. 2010)].

In viewing the evidence in the light most favorable to Defendant Brittany Lahm, it cannot be said that there is no reasonable view of the evidence that could show that she was confronted with a sudden and unforeseen circumstance not of her own making. In fact, the bulk of the testimony by both Defendant Brittany Lahm, as well as Plaintiff himself, surrounded the bikini string pulling by decedent Brandon Berman. Although Plaintiff's counsel repeatedly asked this Court, and continues to ask this Court, to find that a woman's bikini top being removed suddenly and exposing her breasts with three males sitting in the car was not a qualifying emergency as a matter of law, this Court cannot and will not make that blanket and bright line rule. Counsel for Plaintiff repeatedly argued, and continues to argue, that a woman's mere embarrassment at the sudden and unwanted exposure of her breasts to her male passengers does not rise to the level of "danger." However, the majority of the cases regarding the use of the emergency charge, if not all of the cases, do not use the term "danger" to label the qualifying emergencies; in fact, the cases speak of a "sudden and unforeseen occurrence," which was clearly present in this case. Therefore, this Court finds that it was properly left to the jury to decide whether a qualifying emergency existed. Consequently, this Court does not find error on it's own part in giving the emergency charge to the jury.

The next issue before the Court on this motion is whether the Court should set aside the verdict of the jury and either direct a verdict for Plaintiff, or grant a new trial. It is well settled that a jury verdict should not be disturbed unless there is no fair interpretation of the evidence by which the jury could have reached its conclusion. [Lallemand v. Cook, 23, AD3d 533, 534 (App. Div. 2nd Dept. 2005), quoting Salazar v. City of New York, 302 AD2d 580, 581 (App. Div. 2nd Dept. 2003); Lagana v. Fox, 6 AD3d 583 (App. Div. 2nd Dept. 2004)]. A verdict is not supported by legally sufficient evidence if there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusions reached by the jury on the basis of the evidence presented at trial. [Lallemand v. Cook, 23, AD3d 533, 534 (App. Div. 2nd Dept. 2005), quoting Aprea v. Franco, 292 AD2d 478 (App. Div. 2nd Dept. 2000)].

Counsel for Plaintiff argues that there is no permissible inference or valid line of reasoning which could have lead to a verdict of no negligence on the part of Defendant Brittany Lahm in light [*6]of her own admissions that she removed both of her hands from the wheel and did not slow her vehicle when her straps were pulled. In support of that position, Plaintiff cites a string of cases that stand for the proposition that a violation of the Vehicle and Traffic Law constitutes negligence as a matter of law and cannot be disregarded by the jury. [Vainer v. DiSalvo, 79 AD3d 1023 (App. Div. 2nd Dept. 2010) (Defendant made sudden right hand turn out of left hand lane crossing over right lane in order to get a parking spot; summary judgment should have been granted on liability to driver in right hand lane); Lallemand v. Cook, 23 AD3d 533 (App. Div. 2nd Dept. 2005) (Defendant pulled out of driveway without yielding to traffic; verdict set aside); Lagana v. Fox, 6 AD3d 583 (App. Div. 2nd Dept. 2004) (Defendant failed to yield to plaintiff when plaintiff had the right of way; verdict set aside and new trial granted); Rossani v. Rana, 8 AD3d 548 (App. Div. 2nd Dept. 2004) (Defendant drove into intersection without stopping at stop sign and then froze in intersection, blocking plaintiff's path when plaintiff had the right of way; verdict set aside and new trial granted); Hellenbrecht v. Radeker, 309 AD2d 834 (App. Div. 2nd Dept. 2003) (Defendant made a right on red without yielding to the right of way; verdict set aside); Batal v. Associated Universities, Inc., 293 AD2d 558 (App. Div. 2nd Dept. 2002) (Defendant proceeded into the intersection without yielding to the right of way; verdict set aside); Dellavecchia v. Zorros, 231 AD2d 549 (App. Div. 2nd Dept. 1996) (Defendant proceeded into the intersection without yielding to the right of way; verdict set aside).

However, none of the cases cited by Plaintiff and detailed above involved situations where the emergency charge was either requested or given, and in fact all involve blatant violations of the Vehicle and Traffic Law which caused accidents where there was no reason or excuse for the violations. In fact, in the Batal case cited above, the Appellate Division specifically references the fact that the plaintiff in that matter was entitled to the emergency charge and it must be given to the jury in the new trial. [Batal v. Associated Universities, Inc., 293 AD2d 558, 560 (App. Div. 2nd Dept. 2002)]. In that matter, the defendant violated Vehicle and Traffic Law §§ 1142(a) and 1172(a) by proceeding into an intersection without yielding to the right of way. [Batal v. Associated Universities, Inc., 293 AD2d 558, 559 (App. Div. 2nd Dept. 2002)]. However, there was also evidence that plaintiff may have contributed to the accident by exceeding the speed limit and proceeding in the wrong lane, also violations of the Vehicle and Traffic Law. [Batal v. Associated Universities, Inc., 293 AD2d 558, 559 (App. Div. 2nd Dept. 2002)]. The Appellate Division, Second Department specifically stated that the plaintiff was entitled to a jury charge on the emergency doctrine under those facts, stating "the emergency doctrine is applicable when a party is confronted by a sudden and unforeseen occurrence not of his own making." [Batal v. Associated Universities, Inc., 293 AD2d 558, 560 (App. Div. 2nd Dept. 2002)]. It would stand to reason that the "emergency" facing the plaintiff in the Batal matter would offer an "excuse" for any violation of the Vehicle and Traffic Law, which would otherwise constitute negligence as a matter of law.

Additionally, in the Aranzullo v. Seidell case, also cited by Plaintiff, the Second Department found error in the trial court's supplement to the jury charges using the phrase, "if you find that defendant violated this statute unexplained'". [Aranzullo v. Seidell, 96 AD2d 1048, 1049 (App. Div. 2nd Dept. 1983)]. The Second Department took exception to the use of the word "unexplained" rather than "unexcused," and clarified that it is only an unexcused omission to comply with the statute which is negligence, going on to state that the excuses for which the law takes cognizance are limited. [Aranzullo v. Seidell, 96 AD2d 1048, 1049 (App. Div. 2nd Dept. 1983)]. [*7]

In this matter, the evidence that was before the jury showed that while Defendant Brittany Lahm was driving her vehicle, a passenger untied her bikini top while she was driving without her permission. Defendant Brittany Lahm reacted by covering herself with her hands and arms, momentarily taking both hands off the wheel. When she felt the car veering to one side, she put her hands back on the wheel but it was already too late as she had already lost control of the car. In that split second, she removed her two hands from the wheel and did not slow down - points which Plaintiff argues are direct violations of the Vehicle and Traffic Law - and therefore constitute negligence as a matter of law.

However, under the emergency doctrine, the jury was specifically instructed, pursuant to the Pattern Jury Instructions, that: "If you find that defendant was faced with an emergency and that her response to the emergency was that of a reasonably prudent person, then you will conclude that defendant was not negligent." Making all permissible inferences, as the Court must on a motion to set aside a jury's verdict, it cannot be said that there is no valid line of reasoning or fair interpretation of the evidence that could possibly have lead rational persons to the conclusion reached by the jury to find that Defendant Brittany Lahm was not negligent. If the jury found that having her bikini top untied was an emergency, as was argued by Defendant's counsel throughout the trial and summations, and further that her split-second reaction to cover herself up was reasonable under the circumstances, they could then find her not negligence pursuant to the emergency doctrine.

With regard to the argument by Plaintiff that the Court erroneously re-charged the jury after the jury question was received, neither party provided the transcript with their motion papers and the Court cannot recall the exact substance of the sidebar conducted. Further, Plaintiff's counsel himself states that any objection expressed by him was done during a sidebar and not on the record. Regardless, upon reviewing the three jury instructions that were given during the re-charge, the Court does not find that there was any error.

The Court will also note that Plaintiff's argument that the verdict should be set aside in the interests of justice because the it is inconsistent with this Court's Decision and Order in another matter, Gonzalez v. Lahm. Briefly, the Gonzalez matter involves an accident that occurred on the same date, when a vehicle traveling in the southbound lanes of the New York State Thruway was forced off the road by the sudden appearance of the Lahm vehicle after it had flipped over the guardrail. The passengers in the Gonzalez vehicle sued Defendant Brittany Lahm and Philip Lahm and that matter was never joined or consolidated with this matter, aside from having corresponding discovery dates for the convenience of all parties, counsel and the Court. The Gonzalez matter resulted in a settlement between the parties but prior to that date, Plaintiff Gonzalez filed a motion for summary judgment on liability, which was unopposed, and was granted. The trial, which never happened as a result of the settlement, was scheduled to proceed on damages only. Plaintiff Pelletier has repeatedly argued, in conferences, in a Motion in Limine, and now in his post-trial motion, that the granting of summary judgment on liability in the Gonzalez matter should have some preclusive effect on Defendant Brittany Lahm's liability in this matter. As the Court has explained and previously ruled, the duty owed by Defendant Brittany Lahm to Plaintiff Pelletier and the plaintiff's in the Gonzalez action were different, and the decision on the summary judgment was not a full-blown factual inquiry where all parties laid bare their proof, rather it was a granting of a motion that was unopposed. The Court does not find that the instant jury verdict finding no negligence on the [*8]part of Defendant Brittany Lahm must be set aside in the interests of justice based on a decision on an unopposed summary judgment motion on liability between different parties on a separate matter.

As there is a fair interpretation of the evidence that could lead to the verdict rendered, this Court will not invade the province of the jury any further by setting aside their duly rendered and unanimous verdict.

Accordingly, it is hereby

ORDERED that Plaintiff's motion to set aside the jury's verdict as against the weight of the evidence, or in the interests of justice, is denied in it's entirety.

The foregoing constitutes the Decision and Order of this Court.

Dated: New City, New York

June 14, 2011

______________________________

HON. MARGARET GARVEY

Justice of the Supreme Court