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NY PJI 2:10
N.Y. Pattern Jury Instr.--Civil 2:10 (3d ed. 2000)
New York Pattern Jury Instructions--Civil, 3d ed.
2000 Edition
Committee on Pattern Jury Instructions Association of Supreme Court Justices
Copyright © 1999 Unified Court System
Division 2: Negligence Actions
A. Common Law Standard of Care
1. Negligence Defined
PJI 2:10. COMMON LAW STANDARD OF CARE--NEGLIGENCE DEFINED--GENERALLY
Negligence is lack of ordinary care. It is a failure to use that degree of care that a reasonably prudent person would
have used under the same circumstances. Negligence may arise from doing an act that a reasonably prudent person
would not have done under the same circumstances, or, on the other hand, from failing to do an act that a reasonably
prudent person would have done under the same circumstances.
Comment
Based on Caldwell v Island Park, 304 NY 268, 107 NE2d 441; Sadowski v Long Island R. Co., 292 NY 448, 55 NE2d
497.
Negligence is not a thing, but a relation. It cannot exist in a vacuum. It is relative to time, place, circumstances and
persons, and what may be negligence as to one person may not be negligence as to another, Levine v New York, 309
NY 88, 127 NE2d 825; Sadowski v Long Island R. Co., 292 NY 448, 55 NE2d 497.
Negligence arises from a breach of a legal duty, Strauss v Belle Realty Co., 65 NY2d 399, 492 NYS2d 555, 482
NE2d 34, 54 ALR4th 655; Pulka v Edelman, 40 NY2d 781, 390 NYS2d 393, 358 NE2d 1019; Levine v New York,
309 NY 88, 127 NE2d 825; Palsgraf v Long Island R.R. Co., 248 NY 339, 162 NE 99, and is not actionable unless
it results in damage to a person to whom the legal duty is owed, Levine v New York, supra; Larmore v Crown Point
Iron Co., 101 NY 391, 4 NE 752; Schmidt v Merchants Despatch Transp. Co., 270 NY 287, 200 NE 824, 104 ALR
450. The only relevant question is whether defendant breached a duty to plaintiff; a breach of duty to others is not
material, Strauss v Belle Realty Co., supra (extent of duty should be limited on policy grounds); Jenks v McGranaghan,
30 NY2d 475, 334 NYS2d 641, 285 NE2d 876 (no duty on part of golfer to warn player not in line of play); H. R.
Moch Co. v Rensselaer Water Co., 247 NY 160, 159 NE 896; Beck v FMC Corp., 53 AD2d 118, 385 NYS2d 956, aff'd
42 NY2d 1027, 398 NYS2d 1011, 369 NE2d 10 (power company owed no duty to employees for failing to furnish
electricity to employer); Ocera v Zito, 212 AD2d 681, 622 NYS2d 800; Jackson v Livingston Country Club, Inc., 55
AD2d 1045, 391 NYS2d 234 (question of fact as to whether defendant golfer was negligent in not warning player);
Dunlop Tire & Rubber Corp. v FMC Corp., 53 AD2d 150, 385 NYS2d 971 (tire plant owner could recover from
chemical plant owner where explosion at chemical plant caused interruption in supply of electrical power causing
shutdown of tire plant); see also Williams v State, 308 NY 548, 127 NE2d 545 and Wasserstein v State, 32 AD2d 119,
300 NYS2d 263, aff'd 27 NY2d 627, 313 NYS2d 759, 261 NE2d 665 for a discussion of duty to the community at large
as opposed to the individual. An independent contractor hired to correct a specific problem in an elevator has no duty
to warn the building owner of defects unrelated to the problem it was hired to correct, McMurray v P.S. Elevator, Inc.,
224 AD2d 668, 638 NYS2d 720. Likewise, in the absence of a contract requiring a defendant repair company to
provide routine or systematic maintenance of a product, a repairer has no duty, as an independent contractor, to warn
the plaintiff's employer of any purported design defects, see Dauernheim v Lendlease Cars, Inc., 238 AD2d 462, 656
NYS2d 671. For a discussion of foreseeability or lack of foreseeability as a matter of law, see Palsgraf v L.I.R.R., supra.
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Often, however, the issue of foreseeability is one for the jury. For a charge on foreseeability, see PJI 2:12.
Whether defendant owes a duty of care to plaintiff "is entirely one of law to be determined by the courts," Donohue
v Copiague Union Free School Dist., 64 AD2d 29, 407 NYS2d 874, aff'd 47 NY2d 440, 418 NYS2d 375, 391 NE2d
1352, 1 ALR4th 1133; Gerdowsky v Crain's New York Business, 188 AD2d 93, 593 NYS2d 514; see Matthews v
Scotia-Glenville School System, 94 AD2d 912, 463 NYS2d 629; Crosby v Bethlehem, 90 AD2d 134, 457 NYS2d 618
(town owed no duty to pedestrian for failure to arrest intoxicated motorcyclist); Conte v Aeolian Corp., 80 AD2d 990,
437 NYS2d 473. In Donohue v Copiague, supra, the Court refused, on public policy grounds, to recognize a claim
sounding in "educational malpractice" on the ground that statutes that are designed to confer a benefit upon the general
public do not give rise to a cause of action by an individual for breach; see Paladino v Adelphi University, 89 AD2d
85, 454 NYS2d 868 (rule extended to private schools); see also Washington v New York, 83 AD2d 866, 442 NYS2d
20.
A security guard who directed the driver of a car that had been double parked to move his car owed no duty to a
pedestrian struck by the car, although the guard knew the driver was intoxicated and incapable of operating the car,
Ramsammy v New York, 216 AD2d 234, 628 NYS2d 693. A defendant generally has no duty to control the conduct
of third persons so as to prevent them from harming others, even where, as a practical matter, the defendant can
exercise such control, D'Amico v Christie, 71 NY2d 76; Fay v Assignment America, 245 AD2d 783, 666 NYS2d 304;
Ramsammy v New York, supra.
There is no duty on the part of a publisher to investigate an advertiser absent a special relationship between the
parties, Stoianoff v Gahona, 248 AD2d 525, 670 NYS2d 204; see Coakley v VV Pub. Corp., 254 AD2d 135, 679
NYS2d 20. Additionally, no such legal duty rests upon a newspaper unless it undertakes to guarantee, warrant, or
endorse a particular product, Stoianoff v Gahona, supra.
The standard of care, that is, due care under the circumstances, is inflexible, but the degree of caution required to be
exercised in specific situations to comply with such standard of care varies with the time, place and conditions
involved, and with the risk reasonably to be apprehended, Adkins v Glens Falls City School Dist., 53 NY2d 325, 441
NYS2d 644, 424 NE2d 531; Havas v Victory Paper Stock Co., 49 NY2d 381, 426 NYS2d 233, 402 NE2d 1136;
Quinlan v Cecchini, 41 NY2d 686, 394 NYS2d 872, 363 NE2d 578; Nicholson v Board of Education, 36 NY2d 798,
369 NYS2d 703, 330 NE2d 651; Caldwell v Island Park, 304 NY 268, 107 NE2d 441; Martinez v Lazaroff, 66 AD2d
874, 411 NYS2d 955, aff'd 48 NY2d 819, 424 NYS2d 126, 399 NE2d 1148; Hoffman v Lehman, 204 Misc 1053, 126
NYS2d 608, mod on other grounds 286 App Div 487, 145 NYS2d 105, aff'd 2 NY2d 824, 159 NYS2d 839, 140 NE2d
749; Mikula v Duliba, 94 AD2d 503, 464 NYS2d 910; Pagan v Goldberger, 51 AD2d 508, 382 NYS2d 549. Unusual
precautions must be taken against unusual dangers, but where mere potentiality of injury exists, only such foresight
as appears to be commensurate with its reasonably probable occurrence need be employed, Van Leet v Kilmer, 252 NY
454, 169 NE 644. The care exercised must be commensurate with the known or ascertainable dangers, Pike v
Consolidated Edison Co., 303 NY 1, 99 NE2d 885; Wasserstein v State, 32 AD2d 119, 300 NYS2d 263, aff'd 27 NY2d
627, 313 NYS2d 759, 261 NE2d 665; Tenczar v Milligan, 47 AD2d 773, 365 NYS2d 272 (driver bound to see what
should have been seen). In Adkins v Glens Falls City School District, supra; Hoffman v Lehman, supra; Martinez v
Lazaroff, supra; Van Leet v Kilmer, supra; and Wasserstein v State, supra, the court dismissed the complaint against
one or all parties finding no negligence a matter of law, whereas in the other cases the degree of caution required under
the circumstances was a jury question.
Direct or circumstantial evidence from which the defendant's negligence may be reasonably inferred requires that the
issue be submitted to the jury, Archie v Todd Shipyards Corp., 65 AD2d 699, 410 NYS2d 69; Goldberg v Springer,
61 AD2d 806, 402 NYS2d 35. Where reasonable minds differ concerning inferences to be deduced from
circumstances, the issue of negligence must be submitted to the jury, Archie v Todd, supra. The court may set aside
a jury verdict for defendant where evidence of negligence preponderated so heavily in plaintiff's favor that a jury could
not have fairly found for defendant, Walsh v Morris, 88 AD2d 673, 450 NYS2d 920.
Unavoidable accident may be charged on appropriate facts, Mikula v Duliba, 94 AD2d 503, 464 NYS2d 910; Dorn
v Butts, 46 Misc 2d 953, 260 NYS2d 468; see Carvel v Underwood, 51 Misc 2d 863, 273 NYS2d 918. "An
unavoidable accident is an occurrence which was not intended and which, under all the circumstances, could not have
been foreseen or prevented by the exercise of reasonable precautions. That is, an accident is considered unavoidable
or inevitable at law if it was not proximately caused by the negligence of any party to the action or to the accident",
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Prosser and Keeton, Torts, (5th Ed) § 29.
New York courts have adopted the view that once intentional offensive contact has been proven, the actor is liable
for assault and not negligence, Sanchez by Hernandez v Wallkill Cent. School Dist., 221 AD2d 857, 633 NYS2d 871;
Ferran v Williams, 194 AD2d 962, 598 NYS2d 866. Where a defendant hurled a glass object at a third person, that
hit the third person, and fragments of that broken glass injured plaintiff, plaintiff properly pleaded a negligence cause
of action, Rubino v Ramos, 226 AD2d 912, 641 NYS2d 409. The evidence established that the touching of plaintiff,
an innocent bystander, was not intentional, but rather inadvertent and accidental, id.
NY PJI 2:10
END OF DOCUMENT