The Collision

During daylight hours, Flavio Cavalli (plaintiff) crossed Swift Avenue in Eastchester. He was walking north within an unmarked crosswalk. Both Cavalli and the driver (defendant) of the vehicle that hit him testified at trial that the vehicle struck Cavalli while he was within the unmarked crosswalk. The defendant had just passed a white line and a stop sign and was turning right to proceed in a southerly direction on White Plains Road.

Trial Court Decision

In October of 1993, the trial court entered judgment and awarded the plaintiff $5,000. The jury awarded total damages of $25,000; however, they found the plaintiff pedestrian 80 percent at fault in the collision. On Eugenia Cavalli's claim for loss of consortium, the jury awarded no damages.

Appellate Court Decision

The plaintiff appealed, claiming error in the trial court's instructions to the jury. Specifically, despite the plaintiff's objections, the trial court instructed the jury with respect to McKinney's Vehicle and Traffic Law  1152(a) which states:

Every pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway.

All the evidence here, according to the appellate court, located this collision in an unmarked crosswalk as defined by Vehicle and Traffic Law  110. Despite this, the court did not instruct the jury in Vehicle and Traffic Law  1151, which requires vehicles to yield right-of-way to a pedestrian within a crosswalk (Fan v. Buzzitta, 42 A.D.2d 40, 344 N.Y.S.2d 788). During deliberations, the jury asked at least three times for clarification; each time, the trial court reiterated its instructions pertaining to pedestrians yielding to vehicles without instructing the jury on a vehicle's responsibility to yield to pedestrians in an unmarked crosswalk.

The appellate court concluded:

The prejudice of these improper instructions is apparent in the jury's liability determination apportioning 80% of fault to the pedestrian plaintiff, a conclusion that even defendants' counsel in summation did not have the temerity to urge. (On this aspect, he had suggested the jury might consider a 50-50 apportionment of fault.)

Reversing the lower court's decision and remanding the case, the appellate court added a recommendation that, at the retrial, the court not allow the defense to introduce information concerning the defendant driver's charitable activities or to present other types of good-character evidence. Referring to Beach v. Richtmyer (275 A.D. 466, 90 N.Y.S.2d 332), the appeals court described this type of evidence as "irrelevant and prejudicial."