Haddock v. City of New York ( 1984 )

—Judgment of the Supreme Court, Bronx County (Bradley, J.), entered on June 16, 1983, after trial by jury, reversed, on the law, without costs, and the matter remanded for a new trial.

At the close of the trial court’s charge, the defendant city excepted to the omission of an instruction on foreseeability and stated it had assumed that foreseeability would be included in the general instructions on the elements of negligence. The trial court’s only explanation for its refusal to so charge was that the request came “too late.”

However, CPLR 4110-b provides, in pertinent part: “No party may assign as error the giving or the failure to give an instruction unless he objects thereto before the jury retires to consider its verdict stating the matter to which he objects and the grounds of his objection.” Counsel did so object and thus has preserved this claim of error for appeal.

In a case such as the instant one where plaintiff sought to hold the city liable for the intentional criminal act of its employee, the question of foreseeability of risk is fundamental. Since this element of foreseeability is an essential component of negligent conduct, the determination of liability against the defendant city, without the jury being instructed as to this component, must be reversed and a new trial granted.

By merely charging PJI 2:240, which concerns the requirement that the employer have knowledge or should have had knowledge of the employee’s propensities for the employer to be negligent, without also instructing the jury that the risk of injury to the plaintiff had to be reasonably foreseeable, the trial court made the city, in effect, an insurer against harm for any act committed by this employee. Where acts of a third person, intentional or negligent, intervene between defendant’s conduct and plaintiff’s injury, the question of whether defendant is liable turns upon whether the intervening act is a foreseeable consequence of defendant’s negligence (Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). Concur — Asch, J. P., Silverman and Kassal, JJ.