Opinion
Submitted May 17, 2000.
July 31, 2000.
In an action to recover damages for personal injuries, etc., the plaintiff appeals from a judgment of the Supreme Court, Dutchess County (Hillery, J.), entered March 9, 1999, which, upon the granting of the defendant's motion for judgment as a matter of law made at the close of the plaintiff's case, dismissed the complaint.
Andrew Davidovits, New York, N.Y., for appellant.
McCabe Mack, LLP, Poughkeepsie, N.Y. (Gerianne Hannibal of counsel), for respondent.
Before: LAWRENCE J. BRACKEN, J.P., DANIEL W. JOY, WILLIAM C. THOMPSON, GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, JJ.
DECISION ORDER
ORDERED that the judgment is affirmed, with costs.
The Supreme Court properly granted the defendant's motion for judgment as a matter of law as the plaintiff failed to establish a prima facie case of res ipsa loquitur. The plaintiff failed to demonstrate either (1) that the accident was of a kind which ordinarily does not occur in the absence of someone's negligence, or (2) that it was caused by an instrumentality within the exclusive control of the defendant (see, Kambat v. St. Francis Hosp., 89 N.Y.2d 489; Thompson v. Pizza Hut of Am., 262 A.D.2d 302; Bonventre v. Max, 229 A.D.2d 557).
The plaintiff's remaining contentions are either unpreserved for appellate review or without merit.
The plaintiff claims that she sustained personal injuries when a live electric cable snapped off a utility pole and fell on a car, in which she was a passenger, as the car proceeded down Route 55 in Orange County, in good weather. The defense counsel, in his opening statement, argued that the defendant could not be found liable for negligence because "when the wire fell the electricity cut out, the circuit breaker kicked off the electricity, which is Central Hudson's practice * * * their system worked". At the close of the plaintiff's case, after the plaintiff described the accident, the defendant moved to dismiss, arguing there was no proof it owned the cable, and no proof "that wires don't come down periodically". The plaintiff, in opposition, argued that "at the deposition, they admitted it was their power pole", and that the doctrine of res ipsa loquitur applied. The court dismissed the action without stating its reasons.
The defendant's control over the wire in issue was acknowledged by the defense counsel in his opening statement (see, Echevarria v. Cromwell Assocs., 232 A.D.2d 347), which constituted a judicial admission (see, Matter of Hodgkinson's Estate, 18 Misc.2d 425; Hake v. George Wiedemann Brewing Co., 262 N.E.2d 703 [Oh]).
Further, liability for falling electrical wires can be predicated on the doctrine of res ipsa loquitur (see, Russell v. New York State Elec. Gas Corp., 276 App. Div. 44, 47-48, affd 301 N.Y. 593; Wolfe v. Rochester Tel. Co., 258 App. Div. 845; Weiss v. Brooklyn Edison Co., 253 App. Div. 746; O'Flaherty v. Nassau R.R. Co., 34 App. Div. 74, affd 165 N.Y. 624; Houle v. Helena Gas Elec Co., 31 F.2d 671; Snyder v. Wheeling Elec. Co., 43 W. Va. 661, 28 S.E. 733; 1A PJI 2:06).
The elements of res ipsa loquitur are (1) the event is of a kind which ordinarily does not occur in the absence of someone's negligence, (2) it must be caused by an agency or instrumentality in the exclusive control of the defendant, and (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff (see, Ebanks v. New York City Tr. Auth., 70 N.Y.2d 921 [ 70 N.Y.2d 621]). The first two elements were established by the defendant's opening statement, and the circumstances of the accident (see, Wolfe v. Rochester Tel. Co., supra; Weiss v. Brooklyn Edison Co., supra). The third element was established by the plaintiff's testimony.
The defendant's contentions that wires can fall in the absence of negligence, and that it did all it could to ensure the safety of the wires, are not supported by the record, because the court dismissed the action before the defendant could present its defense. If evidence in support of those contentions had been admitted, such evidence would have presented issues for resolution by the jury as the finder of fact (see, Wolfe v. Rochester Tel. Co., supra; Weiss v. Brooklyn Edison Co., supra).
In view of the foregoing, the trial court improperly dismissed the complaint at the close of the plaintiff's case. The plaintiff is entitled to a new trial.
Although I agree with Justice Goldstein that the plaintiff is entitled to a new trial, I find that the critical error was the trial court's refusal to allow the plaintiff to reopen her case in order to present evidence of the defendant's exclusive control of the wire. Contrary to Justice Goldstein's conclusion, I do not find that there was a "judicial admission" of exclusive control in defense counsel's opening statement.
There is no dispute that the plaintiff failed to establish the exclusive control element of res ipsa loquitur on her direct case. Once the issue was raised by defense counsel's motion to dismiss, however, the plaintiff's counsel requested an opportunity to reopen the plaintiff's case in order to call one of the defendant's employees to testify regarding exclusive control. The trial court denied the request.
While the trial court has discretion in determining whether or not to allow a party to reopen his or her case (see, Feldsberg v. Nitschke, 49 N.Y.2d 636, 643; Matter of Dutchess County Dept. of Soc. Servs. [ex rel. Sabrina T.] v. Shirley U., 266 A.D.2d 459, 460), when a motion to reopen is made, the trial court should consider whether the movant has provided a sufficient offer of proof, the possible prejudice to the opposing party, and whether significant delay in the trial will result if the motion is granted (see, Frazier v. Campbell, 246 A.D.2d 509, 510; Veal v. New York City Tr. Auth., 148 A.D.2d 443, 444-445; Lagana v. French, 145 A.D.2d 541, 542). The most important consideration is the possibility of prejudice to the opposing party, even without a proper offer of proof, and where there is no prejudice the request to reopen should be granted (see, Harding v. Noble Taxi Corp., 182 A.D.2d 365, 370).
There was no evidence that the defendant would be prejudiced. In fact, defense counsel in opposition to the plaintiff's request to reopen, failed to raise prejudice as a basis to deny that request. Moreover, the trial court did not allow the plaintiff's attorney to provide an offer of proof, and failed to ascertain what evidence would be presented and whether there would be any significant delay of the trial. Indeed, it appears that the plaintiff could have read the deposition testimony of one of the defendant's employees into the record if that employee was not readily available to testify. Accordingly, the trial court improvidently exercised its discretion in refusing to allow the plaintiff to reopen her case. Accordingly, I would reverse and direct a new trial.