Stalikas v. United Materials, L.L.C. , 760 N.Y.S.2d 804 ( 2003 )

Wisner, J.P., and Gorski, J.

(dissenting). We respectfully dissent. In our view, Supreme Court’s refusal to charge the jury with PJI3d 2:26 (2001) (now PJI3d 2:26 [2003]) along with PJI3d 2:82 (2001) (now PJI3d 2:82 [2003]) requires reversal and a new trial. Here, there are issues of fact whether defendants James Pierce and Michael Deakin violated Vehicle and Traffic Law § 1129, prohibiting following too closely, and whether such violations were excusable under the circumstances then existing. “[T]he clear import of the instruction [pursuant to PJI3d 2:26] is that upon finding that a defendant violated such a statute, the jury must conclude that the defendant was negligent, and if such negligence was the proximate cause of the plaintiff’s injury liability will follow. Any deviation from the pattern instruction suggesting that violation of a statute is merely ‘evidence of negligence’ is improper” (Holleman v Miner, 267 AD2d 867, 869 [1999] [emphasis added]). It appears from the transcript of the charge conference that the court was under the misimpression that, if the jury was instructed in accordance with PJI3d 2:26, the jury’s inquiry would end, without consideration of proximate cause.

In charging only PJI3d 2:82, the court instructed the jury to evaluate whether Pierce and Deakin were following too closely and, if so, whether they were negligent in doing so. Thus, “the language employed by Supreme Court constituted the functional equivalent of charging the jury that such statutory violations merely constituted ‘evidence of negligence’ ” (Holleman, 267 AD2d at 869), not negligence per se. We believe that the jury should have been instructed that the violation of Vehicle and Traffic Law § 1129 would constitute negligence per se, not just some evidence of negligence to evaluate along with the other evidence in the case. If the verdict sheet had asked the jury to determine whether the actions of Pierce and Deakin constituted a statutory violation, we could then determine whether the court’s refusal to charge PJI3d 2:26 was harmless error but, in the absence of such a question on the verdict sheet, we are unable to do so. Present — Wisner, J.P., Scudder, Kehoe, Gorski and Lawton, JJ.