dissent">Rosenberger, J. P.

(dissenting). I respectfully dissent and would affirm the judgment Appealed. The Trial Judge charged the jury in a manner more favorable to the defendants than the opinion and holding in United States v Ballard (322 US 78), quoted and cited by the majority, would require.

Ballardinvolved a mail fraud prosecution in which the defendants allegedly misrepresented certain religious beliefs as part of a fraudulent scheme to sell memberships and literature and to solicit donations. The trial court recognized that it would be a violation of the Establishment Clause of the First Amendment to factor the reasonableness of religious beliefs in the legal determination of whether or not the defendants had been proven guilty. It, therefore, instructed the jurors that they were only to inquire whether the defendants " 'honestly and in good faith believe[d]’ ” what they preached in determining whether they were guilty or not (supra, at 81). If they found that the defendants had a good-faith belief in what they espoused, they were not to go on to consider the reasonableness or validity of that belief. This instruction was upheld upon First Amendment scrutiny by the United States Supreme Court (supra, at 88).

The majority, in a footnote, states that the Court in Ballard (supra)dealt only with the issue of mens rea in a criminal case. I, of course, see the issue quite differently.

The trial court advised the jury as follows: " 'The issue is: Did these defendants honestly and in good faith believe those things? If they did, they should be acquitted. I cannot make it any clearer than that.’ ” (Supra, at 81.)

The trial court emphasized the same theme in the jury charge: " 'The question of the defendants’ good faith is the cardinal question in this case. You are not to be concerned with the religious belief of the defendants, or any of them. The jury will be called upon to pass on the question of whether or not the defendants honestly and in good faith believed the representations which are set forth in the indictment, and honestly and in good faith believed that the benefits which they represented would flow from their belief to those who embraced and followed their teachings, or whether these representations were mere pretenses without honest belief on *559the part of the defendants or any of them, and, were the representations made for the purpose of procuring money, and were the mails used for this purpose.’ ” (Supra, at 82.)

The issue of mens rea is not discussed by the Supreme Court. The issue of religious liberty, as protected by the United States Constitution, is.. It is of this issue, the only one addressed by the Court, that it said: "The case is here on a petition for a writ of certiorari which we granted because of the importance of the question presented.” (Supra, at 83.)

Although the majority writes that that issue "has little relevance to the principles of tort law at stake here”, I am unaware of any doctrine or holding which limits the application of the First Amendment to the United States Constitution to criminal law. Basic principles of constitutional law do not change depending upon whether the context of a case is civil or criminal.

Although the issue of religion enters this case in the context of the plaintiffs duty to mitigate damages, the trial court used language to obviate a constitutional violation in the instructions here under review. The pattern jury instruction as to the legal doctrine of avoidable consequences, or the duty to undertake reasonable efforts to minimize consequential damages, though neutral on its face, would have been discriminatory as applied to a practicing Jehovah’s Witness whose religion forbids the acceptance of blood transfusions (see, Church of Lukumi Babalu Aye v City of Hialeah, 508 US 520, 546 [discussing formal and substantive neutrality]).

The trial court’s adapted charge reveals that it appropriately created an instruction that meets the State’s interest in minimizing tort damages to those reasonably incurred, in the situation of an incidental burden placed upon plaintiffs practice of her religious beliefs as a Jehovah’s Witness (see, United States v Ballard, supra; see also, Sherbert v Verner [374 US 398] and Wisconsin v Yoder [406 US 205], strict scrutiny test to be applied to rules that burden religious freedom). As relevant, the court’s charge stated:

"Now, in making your determination as to whether [plaintiff] has acted reasonably to mitigate damage, I will instruct you that under no circumstances are you to consider the validity or reasonableness of her religious beliefs. * * *

"[W]e cannot have a situation in which jurors in passing on the reasonableness of somebody’s conduct, pass upon whether their religious beliefs are reasonable or not reasonable.

*560"What is reasonable for [an] adherent of one religion may appear totally unreasonable to someone who has different beliefs, but you may not pass upon the validity of anyone else’s beliefs. That is out of bounds for you.

"You have to accept as a given that the dictates of her religion forbid blood transfusions.

"And so you have to determine in assessing the question of damages, damages past and damages future, whether she, Mrs. Robbins, acted reasonably as a Jehovah’s Witness in refusing surgery which would involve blood transfusions.

"Was it reasonable for her, not what you would do or your friends or family, was it reasonable for her given her beliefs, without questioning the validity or propriety of her beliefs.”

The charge in this case did not take the issue of whether Mrs. Robbins acted reasonably away from the jury. The Trial Judge instructed this jury at least five times that whether she acted reasonably in refusing surgery was a matter to be decided by them. In doing so, the court gave an instruction more favorable to the defendants than was proper under the standard set forth by the Supreme Court of the United States in United States v Ballard (supra).

The sincerity and good faith of the plaintiff’s beliefs were not contested at trial or on appeal by the defendants. Realistically, they could not have been successfully challenged. The evidence showed that she stated that she would refuse blood transfusions in conformity with her religious belief at her first contact with a physician after the accident. She maintained her resolve even upon being informed that it could cost her her life. Nonetheless, the Trial Judge in his charge instructed the jury to consider her sincerity and good faith, when he told the jurors that "from the evidence, you may or may not conclude that the observance of her religion was very important to her.” There was no exception to this portion of the charge, which was in conformity with United States v Ballard (supra).

The majority finds fault with the instruction that the jury "may not pass on the validity of anyone else’s beliefs”; it would have the jury hear evidence and determine whether the refusal to submit to a blood transfusion was orthodox, or reasonable, within the Jehovah’s Witness faith. This inquiry crosses an impermissible First Amendment Establishment Clause boundary.

As the Supreme Court has noted in Board of Educ. v Barnette (319 US 624, 642):

*561"[F]reedom to differ is not limited to things that do not matter much. That would be a mere shadow of freedom. The test of its substance is the right to differ as to things that touch the heart of the existing order.

"If there is any fixed star in our constitutional constellation, it is that no official, high or petty, can prescribe what shall be orthodox in politics, nationalism, religion, or other matters of opinion or force citizens to confess by word or act their faith therein.”

The trial court’s adaptation of the pattern jury charge recited above was an appropriate accommodation of plaintiff’s religious beliefs (see, Restatement [Second] of Torts § 918, comment j [1979] ["(a) person is not ordinarily required to surrender a right of substantial value in order to minimize loss”]). As Justice O’Connor noted in her concurrence in Wallace v Jaffree (472 US 38, 83): "The solution to the conflict between the Religion Clauses lies * * * in identifying workable limits to the government’s license to promote the free exercise of religion. The text of the Free Exercise Clause speaks of laws that prohibit the free exercise of religion. On its face, the Clause is directed at government interference with free exercise. Given that concern, one can plausibly assert that government pursues Free Exercise Clause values when it lifts a government-imposed burden on the free exercise of religion. If a [rule] falls within this category, then the standard Establishment Clause test should be modified accordingly. It is disingenuous to look for a purely secular purpose when the manifest objective of a [rule] is to facilitate the free exercise of religion by lifting a government-imposed burden. Instead, the [court] should simply acknowledge that the religious purpose of such a [rule] is legitimated by the Free Exercise Clause”.

The majority also questions the validity of asking "whether any jury verdict could be permitted to conflict with this plaintiff’s 'religious belief that it may be better to suffer present pain than to be barred from entering the Kingdom of Heaven’ ”. It goes on to observe: "With all due deference, this is not the question that should have been presented; to put it in this manner inevitably skews the result.” This "question” is not a quote from the jury charge. It is a quote from the trial court’s decision upholding its instructions. It is, therefore, misleading for this Court to state that the manner of the question skewed the resulting response. This question was never put to the jury, and the manner in which the actual question was put to the jury was, as seen from the quoted portions of the charge, quite different.

*562The jury charge was in conformity with our tort system, allowing for an assessment of the actual situation of a victim of negligence,1 rather than assigning a certain value to a designated injury (see, Pomeroy, Reason, Religion, and Avoidable Consequences: When Faith and the Duty to Mitigate Collide, 67 NYU L Rev 1111, 1131 ["A long line of common-law precedents establish the 'individualized’, subjective character of (the doctrine of avoidable consequences)”]). The concept of the "eggshell plaintiff’ has not been limited to physical infirmities (Bartolone v Jeckovich, 103 AD2d 632; see also, Matter of Tobin v Steisel, 64 NY2d 254, 259).

As the majority opinion has emphasized, the monetary damages to plaintiff will be paid, not by the deceased tortfeasor, but by an insurance carrier. This observation, carried to its logical extension, would substantially diminish the concept linking fault and monetary responsibility for damages in most tort claims. Be that as it may, the danger that the cost of such accidents, borne by insurance carriers, would be passed on to the general public in the form of greater premiums is unsupported by data evincing a high frequency of religious refusals to accept certain medical care. In fact, one commentator has come to the conclusion that this type of case "is sufficiently rare that [the] hypothetical costs [posed] to society [are] negligible” (Pomeroy, op. cit., at 1140).

In sum, to have the leasing company and insurance carrier reimburse this plaintiff for the loss she has suffered is in accord with First Amendment requirements2 that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof’, which applies to both State legislative and judicial action (see, National Assn. for Advancement of Colored People v Alabama, 357 US 449, 463). It is also in conformity with the more broadly drafted article I (§ 3) of the New York Constitution, which guarantees all State citizens "free exercise and enjoyment of religious profession and worship, without discrimination or preference”; as well as article I (§ 11), which directs that "[n]o person shall, because of * * * creed or religion, be subjected to any discrimination in his civil rights by any other person or by any firm, corporation, *563or institution, or by the state or any agency or subdivision of the state.”

This plaintiff should not be subjected to the intrusiveness and indignity of having the reasonableness of her religious beliefs examined and determined by a jury. This basic protection is afforded her by not one, but two constitutions.

Motion seeking leave to file amicus curiae brief on behalf of American Jewish Congress granted.

Nardelli and Tom, JJ., concur with Wallach, J.; Rosenberger, J. P., dissents in a separate opinion.

Judgment of Supreme Court, New York County, entered November 13, 1995, reversed, on the law and the facts, without costs, and the matter remanded for new trial on damages alone. Motion seeking leave to file amicus curiae brief on behalf of American Jewish Congress granted.

. See, Friedman v State of New York, 54 Misc 2d 448, mod on other grounds 31 AD2d 992 (orthodox Jewish woman not contributorily negligent for jumping out of a negligently abandoned chairlift rather than remaining after dark with a man to whom she was not married).

. The First Amendment is made applicable to the States through the Fourteenth Amendment (Cantwell v Connecticut, 310 US 296).

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