Welcome to the Sui Generis New York Minute.
In this week's video, I discuss a Third Department case mentioned in this week's New York Legal News Round Up, Filiberto v Herk's Tavern, Inc., 2007 NY Slip Op 01448. A number of issues were raised in this appeal, including a dram shop claim, but the aspect of the decision that I found to be the most interesting was the Court's discussion of foreseeability:
Even if Bracchi had agreed to take decedent home, decedent choking on an unchewed piece of roast beef was not a reasonably foreseeable risk of stopping for a bite to eat. "Foreseeability of risk is an essential element of a fault-based negligence cause of action because the community deems a person at fault only when the injury-producing occurrence is one that could have been anticipated." Accepting decedent's extreme level of intoxication and the difficulty that such an intoxicated person would have in chewing and swallowing roast beef, as testified to by plaintiff's medical expert, there is absolutely no proof that such difficulties would be apparent to anyone other than perhaps a medical professional. Because it was unforeseeable that decedent was in danger of choking by consuming a meal, Bracchi had no duty to protect him from the risk of this remote possibility.
My commentary on this issue could have been clearer, but my main point was that under the circumstances of this case, although the the risk of choking on food after drinking alcohol was one that could certainly be envisioned, the possibility of choking was so remote that it was one that would not have been reasonably anticipated by the average person.
Which, you may notice if you're on the ball, is pretty much what the Third Department said. As a result, after giving this further thought, I've decided that I actually agree with the Third Department's statement in that regard. So, in the immortal words of Emily Litella--"Never mind."
I also discuss this article which was mentioned in my recent Crimes and Misdemeanors post wherein we learn of a prosecutor who mistakenly alleged that a defendant claimed that a unicorn was driving his car. My favorite quote from the article:
"Mr. Holliday has other serious problems, but this is not one of them," County Attorney Dennis Paxinos said of the unicorn alibi.