Jarvis v. LaFarge North America, Inc.
Opinion of the Court
Appeal from an amended judgment of the Supreme Court, Erie County (Frederick J. Marshall, J), entered May 21, 2007 in a personal injury action. The amended judgment, among other things, dismissed the complaint upon a jury verdict.
It is hereby ordered that the amended judgment so appealed from is unanimously affirmed without costs.
We reject the contention of plaintiff that he was entitled to judgment as a matter of law, i.e., it cannot be said that there was “ ‘simply no valid line of reasoning and permissible inferences which could possibly lead rational [persons] to the conclusion reached by the jury on the basis of the evidence presented at trial’ ” (Bradley v Earl B. Feiden, Inc., 8 NY3d 265, 273 [2007], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]). Addressing first Vehicle and Traffic Law § 1173, we note that it was undisputed that defendant stopped the cement mixer “at the point nearest the roadway to be entered where the driver ha[d] a view of approaching traffic thereon” (id.), and thus plaintiff was not entitled to judgment as a matter of law with respect to defendant’s alleged violation of that section of the Vehicle and Traffic Law. Pursuant to section 1143 of the Vehicle and Traffic Law, “[t]he driver of a vehicle about to enter or cross a roadway . . . shall yield the right of way to all vehicles approaching on the roadway to be entered or crossed,” and we thus conclude that there was a valid line of reasoning and permissible inferences from which the jury could have determined that plaintiff was no longer “approaching on the roadway” because he had stopped behind the tractor-trailer, or that plaintiff had yielded the right-of-way to defendant (see gen
Contrary to the further contention of plaintiff, the court did not err in refusing to give a curative instruction concerning his use of a helmet. It was undisputed that plaintiff was wearing a helmet at the time of the accident. In any event, any issue concerning the use of a helmet was relevant only with respect to the issue of damages, and the jury never reached that issue. Also contrary to the contention of plaintiff, the court did not err in admitting evidence of his conduct on the motorcycle immediately before the accident, inasmuch as such evidence was relevant with respect to the issue of negligence (see generally Prince, Richardson on Evidence § 4-101 [Farrell 11th ed]).
We further conclude that the court properly refused to charge the jury that plaintiff had a reduced burden of proof pursuant to Noseworthy v City of New York (298 NY 76 [1948]), based on his retrograde amnesia. Although plaintiff established that he suffered from retrograde amnesia, he was not entitled to such a charge inasmuch as “[t]he parties were on an equal footing as to their access to knowledge of the events which caused the plaintiff’s injuries” (Kuravskaya v Samjo Realty Corp., 281 AD2d 518 [2001], lv denied 96 NY2d 716 [2001]). Any gaps in plaintiffs recollection of the accident could be “pieced together from [plaintiffs] trial testimony” and the testimony of nonparty eyewitnesses (Fitzgibbon v County of Nassau, 182 AD2d 670 [1992]; see generally Miceli v GEICO Props., 215 AD2d 461 [1995]).
Finally, we conclude that the court properly granted that part of the pretrial motion of defendant and LaFarge for partial summary judgment dismissing plaintiff’s premises liability claim against LaFarge. Defendants established that LaFarge maintained its driveway in a reasonably safe condition, that it did not design or construct the driveway, and that it neither “affirmatively created [the allegedly dangerous] condition [nor] had actual or constructive notice of its existence” (Gernat v State of New York, 23 AD3d 1015, 1016 [2005] [internal quotation marks omitted]; see also Reinemann v Stewart’s Ice Cream
Case-law data current through December 31, 2025. Source: CourtListener bulk data.