Wirth v. De Vito

¶1In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Beisheim, J.), entered October 9, 1980, which was in favor of the defendant, upon a jury verdict. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The Trial Judge committed reversible error by refusing to charge the jury that defendant could be found liable on the alternate theories of creation of a hazardous condition or the failure to warn of the existence, of certain potentially dangerous conditions (cf. Cook v Rezende, 32 NY2d 596; McCabe v Mackay, 253 NY 440). Mollen, P. J., Titone and Rubin, JJ., concur; Weinstein, J., dissents and votes to affirm the judgment.