RICHARDS v. MILLER (2005)

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Dutchess County (Sproat, J.), dated August 9, 2004, which, upon a jury verdict, in favor of the defendant and against them on the issue of liability, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

 Contrary to the plaintiffs' contention, under the facts of this case, the Supreme Court properly charged the jury on the emergency doctrine (see PJI 2:14;  Ferrer v. Harris, 55 N.Y.2d 285, 449 N.Y.S.2d 162, 434 N.E.2d 231;  Rosario v. Morias, 8 A.D.3d 108, 778 N.Y.S.2d 166;  Coleman v. Pizza Hut of Am., 235 A.D.2d 451, 652 N.Y.S.2d 1006;  Waugh v. Johns, 206 A.D.2d 525, 614 N.Y.S.2d 760).   Where some reasonable view of the evidence establishes that an actor was confronted by a sudden and unforeseen occurrence not of his or her own making, then the reasonableness of the conduct in the face of the emergency is for the jury (see Caristo v. Sanzone, 96 N.Y.2d 172, 175, 726 N.Y.S.2d 334, 750 N.E.2d 36;  Kuci v. Manhattan and Bronx Surface Tr. Operating Auth., 88 N.Y.2d 923, 924, 646 N.Y.S.2d 788, 669 N.E.2d 1110;  Rivera v. New York City Tr. Auth., 77 N.Y.2d 322, 327, 567 N.Y.S.2d 629, 569 N.E.2d 432;   Ferrer v. Harris, supra ).   Here, the evidence, viewed in the light most favorable to the defendant, was sufficient to establish that the defendant was faced with a sudden and unforeseen occurrence not of his own making (see Frank v. Lufsey, 243 A.D.2d 538, 665 N.Y.S.2d 298).