| Johnson v Ingalls |
| 2012 NY Slip Op 03492 [95 AD3d 1398] |
| May 3, 2012 |
| Appellate Division, Third Department |
| 2—Melissa Johnson, Appellant, v Zachary J. Ingalls et al.,Respondents. |
—[*1] Melito & Adolfsen, P.C., New York City (Ignatius John Melito of counsel), forrespondents.
Garry, J. Appeal from a judgment of the Supreme Court (Lynch, J.), entered November 22,2010 in Albany County, upon a verdict rendered in favor of defendants.
Plaintiff commenced this action seeking to recover for injuries she sustained in November2006 when she jumped or fell from a vehicle being driven by defendant Zachary J. Ingalls(hereinafter defendant) on the campus of the State University of New York at Albany. A juryrendered a trial verdict in favor of defendants. Plaintiff appeals.
Initially, plaintiff contends that the jury verdict was against the weight of the evidence. To setaside this verdict, "the evidence must so preponderate in favor of the plaintiff that the verdictcould not have been reached on any fair interpretation of the evidence" (Ernst v Khuri, 88 AD3d 1137,1138 [2011] [internal quotation marks, brackets and citation omitted]; see Lolik v Big VSupermarkets, 86 NY2d 744, 746 [1995]). The trial testimony established that on theevening of the incident, a large group of students were drinking in a bar in the City of Albany,including plaintiff and several passengers who later rode in defendant's vehicle. There was adisagreement, and one of the passengers threw a drink in plaintiff's face. The passengers latersummoned defendant—who was at home and had not been drinking—to pick themup and transport them back to campus. Plaintiff left the bar separately. Just before the accident,several bystanders saw her walking along a campus roadway, apparently intoxicated, and talkingloudly on her cell phone. Defendant drove along the same roadway and either stopped or sloweddown to somewhere between two and five miles per hour. Plaintiff went to the vehicle, steppedor [*2]jumped onto its running board, leaned into an openwindow and, according to the passengers, began to swing her arms at the passenger who hadthrown the drink, apparently attempting to strike her. Defendant accelerated; plaintiff fell orjumped off the vehicle, suffering a fractured skull. The description of events offered by defendantand the passengers differed from that of plaintiff and the bystanders in several respects, such aswhether the passengers did anything to provoke plaintiff's approach to the vehicle, whether thecar stopped before plaintiff approached it and how rapidly it accelerated. Upon review, this Courtaccords "great deference" to the jury's interpretation of conflicting evidence (Hudson v Lansingburgh Cent. SchoolDist., 27 AD3d 1027, 1030 [2006] [internal quotation marks omitted]; see Perry v Wine & Roses, Inc., 40AD3d 1299, 1299-1300 [2007]). Granting defendants, as we must, "the benefit of everyfavorable inference reasonably drawn from the facts adduced at trial" (Macri v Smith, 23 AD3d 971, 972[2005] [internal quotation marks and citations omitted]), it cannot be said that the jury'sdetermination is unsupported by any fair interpretation of the evidence.
Plaintiff next contends that Supreme Court erred in excluding evidence of defendant's actionsafter the accident on the ground of relevance. "[E]vidence is relevant if it tends to prove theexistence or nonexistence of a material fact, i.e., a fact directly at issue in the case" (People vPrimo, 96 NY2d 351, 355 [2001]), and the determination is within the trial court's discretion(see Radosh v Shipstad, 20 NY2d 504, 508 [1967]; Prince, Richardson on Evidence§ 4-101 [Farrell 11th ed]). Here, the court allowed testimony from severalwitnesses—including defendant himself—that he drove away without stopping tocheck on plaintiff, but precluded evidence of his subsequent activities. Thus, the jury was notprevented from considering any tacit admission of guilt that might be inferred from his departure.The evidence of his activities thereafter had no bearing on the issue of whether he was operatingthe vehicle negligently at the time of the accident, and we find no error in Supreme Court'sruling.
We further reject plaintiff's contention that certain photographs obtained from her Facebookaccount were unduly prejudicial and improperly admitted into evidence. After an in camerareview, Supreme Court excluded the majority of the photographs that defendants proffered asunduly prejudicial, cumulative or insufficiently probative, but permitted use of approximately 20photos during plaintiff's cross-examination. Plaintiff claimed that, as a result of her injury, shesuffered severe anxiety, vertigo, constant migraines and pain for a period of about two years, thather anxiety prevented her from going out or socializing with friends, and that she requiredantidepressant medication. The photos admitted were taken over a 1½-year periodbeginning shortly after the accident. They depicted plaintiff attending parties, socializing andvacationing with friends, dancing, drinking beer in an inverted position referred to in testimonyas a "keg stand," and otherwise appearing to be active, socially engaged and happy.[FN*]They further revealed that plaintiff consumed alcohol during this period, contrary to medicaladvice and her reports to her physicians. The discretion of trial courts in rendering evidentiaryrulings is broad (see Richmor Aviation,Inc. v Sportsflight Air, Inc., 82 AD3d 1423, 1426 [2011]; Saulpaugh v Krafte, 5 AD3d 934,934-935 [2004], lv denied 3 NY3d 610 [2004]). The photographs had probative valuewith regard to plaintiff's claimed injuries, their evidentiary value was properly balanced againsttheir potential for prejudice, and we find no abuse of discretion (see Prince, Richardsonon Evidence §§ 4-103, 4-206 [Farrell 11th ed]).[*3]
Plaintiff's claim that Supreme Court improperly deniedher jury charge requests was unpreserved. Counsel twice advised that plaintiff had no objectionsto the court's instructions, although some that plaintiff had requested were not included(see CPLR 4110-b, 5501 [a] [3]; Klotz v Warick, 53 AD3d 976, 978-979 [2008], lv denied11 NY3d 712 [2008]). Plaintiff did object to the instruction on the emergency doctrine(see CPLR 4017), but we find no error. The trial court makes the threshold determinationwhether to instruct the jury on this doctrine and, upon review, the evidence is considered in thelight most favorable to the party making the request (see Lifson v City of Syracuse, 17 NY3d 492, 497 [2011]; Ryderv County of Fulton, 303 AD2d 847, 848 [2003]). Here, defendant testified that he did notknow plaintiff and was unaware that an altercation had taken place earlier in the evening. Hestated that he heard no one heckling or taunting anyone before the incident, and that he first sawplaintiff as she ran toward the vehicle. "Instantaneously" thereafter, he described "most of herbody" coming through the front passenger-side window, and she began flailing her arms, tryingto "punch or slap" one of the backseat passengers. He described "a lot of chaos, a lot ofscreaming" inside the vehicle, that he was "in shock" and did not understand what washappening, that he wanted to "get away" and thus accelerated the vehicle slightly, and that theentire incident was over in four or five seconds. The passengers confirmed that defendant did notknow about the earlier altercation and had no reason to anticipate plaintiff's actions. Based uponthis testimony, there was a reasonable view of the evidence supporting an emergency charge, andthe question of whether defendant's conduct was reasonable under the circumstances was for thejury (see Caristo v Sanzone, 96 NY2d 172, 174-175 [2001]).
Mercure, J.P., Lahtinen, Spain and McCarthy, JJ., concur. Ordered that the judgment isaffirmed, with costs.
Footnote *: Two pictures of plaintiff takenbefore the incident were also admitted, to which plaintiff raises no objection on appeal.