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Tuesday, October 15, 2019

Jury instruction improper, N.Y. high court rules

By Jessica M. Karmasek | Oct 19, 2011


ALBANY, N.Y. (Legal Newsline) - The New York Court of Appeals said a trial court erred in giving a jury emergency instruction in favor of a defendant who accidentally hit and killed a pedestrian.

Defendant Derek Klink was the driver of a car that struck Irene Lifson while she was crossing the street, causing her death.

Both Klink and Lifson worked in the MONY Plaza, a large office complex in Syracuse containing two 20-story high-rise office towers. The complex is located across the street from the Harrison Street Garage, where many of the employees park their cars during the work day.

As a result, there is a substantial amount of pedestrian traffic crossing the street between the complex and the garage, particularly during rush hours.

Typically, pedestrians cross the street where the complex's exit lines up with the entrance of the garage, despite the absence of a marked crosswalk.

Following Irene Lifson's death, plaintiff Alexander Lifson filed a suit against Klink and the city of Syracuse, alleging negligence and failure to study and plan for pedestrian traffic.

The ensuing trial was limited to the issue of liability.

Klink testified the accident occurred because he was temporarily blinded by sun glare.

At Klink's request and over the plaintiff's objection, the trial court instructed the jury on the emergency doctrine in his favor.

That meant the jury had to determine whether Klink was in fact confronted with an emergency situation not of his own making and, if so, whether his conduct in response to that situation was that of a reasonably prudent person.

The jury was free to reject both of those propositions, but if it determined that he had faced an emergency situation and acted reasonably, it was to find for Klink.

The jury returned a verdict attributing negligence to the city and Irene Lifson and apportioning fault at 15 percent and 85 percent, respectively. Klink was found not negligent and the action was dismissed against him.

The state's appellate division affirmed, finding the emergency instruction was properly given.

The New York Court of Appeals, the state's highest court, found differently.

The Court said in its opinion filed Thursday that while Klink did not drive the particular route often, as he testified, he was familiar with the general area since he worked in the complex.

And Klink, it noted, was about to turn to the west at a time of day that the sun would be setting.

The Court said it is "well known" -- and therefore can't be considered a sudden and unexpected circumstance -- that the sun can interfere with a person's vision as it nears the horizon at sunset, particularly when someone is heading west.

"This is not to say that sun glare can never generate an emergency situation but, under the circumstances presented, there is no reasonable view of the evidence under which sun glare constitutes a qualifying emergency," Chief Judge Jonathan Lippman wrote for the Court.

Moreover, the Court said in its eight-page opinion, the error in giving the emergency instruction was not harmless.

"The improper charge permitted the jury to consider Klink's action under an extremely favorable standard," Lippman wrote. "Because the application of that instruction to the facts presented could have affected the outcome of the trial, it was not harmless error."

The Court ordered the amended complaint reinstated against Klink and the case be remanded to supreme court.

From Legal Newsline: Reach Jessica Karmasek by email at

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