Clients with MEMORY LOSS are held to LESSER STANDARD in assessing proof of negligence and comparative fault

On occasion, the practitioner represents a client who suffered a brain injury which has impacted the client’s ability to recount the events of an accident. This may create difficulty in proving your case through direct testimony and/or evidence. Please take solace in the fact that: (i) you can use circumstantial evidence to prove your case; and, importantly, (ii) a client suffering memory loss as a result of an accident is held to a lesser standard of evidence.

In Brito v. Manhattan and Bronx Surface Transit Operating Authority, 188 A.D.2d 253 (1st Dep’t., 1992), plaintiff was found lying in a crosswalk immediately after a bus had turned the corner. Plaintiff’s injuries rendered her incapable to testify. The Court held that since there were no witnesses to the accident, plaintiff could prove her case through circumstantial evidence. One witness testified that he noticed the pedestrian lying in the crosswalk after the bus passed. The Court held “it has long been recognized that in circumstantial cases, the possibility that an accident may have been caused by factors other than defendant’s negligence does not mandate a conclusion that plaintiff has failed to make out a prima facie case (Ingersoll v Liberty Bank, 278 N.Y.1,14, 125 N.E.2d 828)”. See also, Stein v. Palisi, 308 N.Y. 293 (1955).

Significantly, the Brito Court held that “where, as here, the victim plaintiff is unable to testify, he is not bound to the same standard of proof required of an injured party who can do so (Noseworthy v. City of New York, 298 N.Y.76, 80, 80 N.E.2d 744; Stein, Palisi, supra, 308 N.Y. at 297, 125 N.E.2d 575.” See also, Shechter v. Klanfer, 28 NY2d 228, 321 N.Y.S2d 99 (1971). In Shechter, it was held that an amnesiac plaintiff was entitled to a lesser burden of persuasion which allowed her to make out her case sufficiently to go to the jury. If your client suffered head injuries which have compromised her ability to recollect significant details of her accident, she should be entitled to a so-called “Noseworthy Charge” which would permit the jury to hold plaintiff to a lower standard and draw inferences from circumstantial evidence which are favorable to her case. See, e.g., Sawyer v. Dreis & Krump Mfg. Co., 67 N.Y.2d 328, 334 (1986); PJI 1:62 (plaintiff with memory loss caused by subject accident is not held to as high a degree of proof).

Likewise, children are held to a lesser standard when considering comparative fault. See, e.g., Dugan v. Dieber, 32 A.D.2d 815, 302 N.Y.S.2d 423 (2nd Dep’t 1969). In Dugan, the Second Department held that a child who ran into traffic from between two cars was held still entitled to recovery against a driver who was not paying proper attention. In fact, children are held to a “standard of care measured not by care expected of an adult person, but by that care which a reasonably prudent child of her years, experience, intelligence and degree of development would use under the circumstances.” See, PJI 2:48.

Myers, Singer & Galiardo LLP

Myers, Singer & Galiardo LLP