An Analysis of the ‘Noseworthy’ Doctrine in NY Tort Law

In most personal injury actions, the injured Plaintiff is willing and able to take the witness stand and describe the circumstances surrounding her accident. But what happens when the injured party does not survive the incident, or allegedly sustains memory loss, rendering her unable to describe what happened? In such cases, the ‘Noseworthy’ doctrine applies, subjecting these plaintiffs to a lesser evidentiary burden, and affording the jury greater latitude in inferring the negligence of the defendant. See Noseworthy v. City of New York, 298 N.Y. 76, 80 N.E.2d 744 (1948).


Over several decades, the Noseworthy doctrine has grown to include a broad range of Plaintiffs. Among them are amnesiac Plaintiffs, who can obtain the doctrine's lesser burden of proof, provided that "clear and convincing evidence" supports an objective basis for their claimed memory loss. See Schecter v. Klanfer, 28 N.Y.2d 228, 269 N.E.2d 812, 321 N.Y.S.2d 99 (1971); see also Sala v. Spallone, 38 A.D.2d 860, 330 N.Y.S.2d (2d Dept. 1972). However, a a simple mistake by the Plaintiff when recalling the facts, rather than evidence of an actual brain injury, does not afford the doctrine's protections; if they are provided at trial, it is reversible error. See 2276 & Claude Williams v. Cindy Hooper, Index No. 117924/04, N.Y. Slip Op. 1683 (1st Dept. 2011)($1.8 million verdict award overturned).

The Noseworthy doctrine again made the headlines in a recent Appellate Court decision this year, Bah v. Benton, 2012 NY Slip Op 00106 (1st. Dept. 2012). The Bah case dealt with the unusual scenario where the beneficial, lesser burden of the Noseworthy doctrine was pitted against a separate, generally-accepted presumption against Plaintiffs, and the Court was required to determine how these presumptions would be properly considered. In Bah, the Plaintiff could not fully remember the circumstances of a motor vehicle accident where his vehicle, traveling in the right lane of the Bruckner Expressway, struck the back of a truck that stalled on the expressway while traveling in the left lane and was unable or neglected to steer entirely on to the right shoulder. The impact caused devastating injuries to the Plaintiff, putting him in a coma and causing post-traumatic amnesia, thus clearly qualifying him for protection under Noseworthy.

Justice Manzanet-Daniels (A.D. 1st Dept.)

While the defendants acknowledged that the Plaintiff should be held to a lesser standard of proof because he did not recall the accident and could not testify to his version of the facts, they nonetheless argued that, under the general presumption regarding rear-end collisions (that the party who strikes a vehicle clearly visible in front of it is negligent), Mr. Bah should be presumed negligent anyway. The Appellate Division, First Department, disagreed. Justice Sallie Manzanet-Daniels acknowledged the separate presumption against the Plaintiff, but explained that if the Plaintiff could provide evidence of the defendants' negligence, he could overcome such a presumption. The Plaintiff did that "amply," Judge Manzanet-Daniels explained, with proof that the truck driver would have had enough momentum to get to the right shoulder, but apparently failed to do so, and that flares and warning triangles were not properly deployed. Accordingly, the case was allowed to proceed.

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