Summary
In Sanchez, we declined to submit the issue to the jury where the plaintiff denied ingesting alcohol, and the emergency room physician and various witnesses noted alcohol on plaintiff's breath but did not observe any erratic or drunken behavior (supra, at 128-129).
Summary of this case from Rountree v. Manhattan Bronx Sur. TransOpinion
April 19, 1994
Appeal from the Supreme Court, New York County (Martin Stecher, J.).
In order to submit the issue of intoxication to the jury, it is not sufficient that there be merely some evidence that the plaintiff had been drinking, or that there was "`alcohol on breath'" (Arroyo v City of New York, 171 A.D.2d 541, 543). Here, plaintiff denied any alcohol consumption. While various witnesses noted alcohol on plaintiff's breath, this observation, standing alone, as noted, does not warrant the giving of an intoxication charge. Only the emergency room physician purported to find that plaintiff was "intoxicated" in his notation in the hospital record. Nevertheless, the physician had no recollection of any erratic or intoxicated behavior, and no such behavior was recorded in the chart. Further, the physician himself defined "intoxicated" in a way which did not require a finding beyond that of "alcohol on breath." Under these circumstances, sufficient evidence did not exist to submit the issue to the jury.
The award of damages did not deviate substantially from what would be reasonable compensation.
Concur — Murphy, P.J., Rosenberger, Wallach, Ross and Rubin, JJ.