Summary
In Resnick v. Gribetz, 66 N.Y.2d 729, 487 N.E.2d 908, 496 N.Y.S.2d 998 (1985), the defendant doctor contended that plaintiff's refusal to undergo a suggested biopsy amounted to an assumption of risk.
Summary of this case from Schneider v. ReviciOpinion
Decided October 22, 1985
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, Alfred J. Callahan, J.
Steven Di Joseph for appellants.
Patricia D'Alivia for respondent.
On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 N.Y.CRR 500.4), order reversed, with costs, and a new trial granted. There is no evidence in this record to support a finding of express, as opposed to implied, assumption of risk ( compare, Arbegast v Board of Educ., 65 N.Y.2d 161). The trial court erred in charging the jury, over plaintiff's objection, that a finding of assumption of risk would bar recovery.
Concur: Chief Judge WACHTLER and Judges JASEN, MEYER, SIMONS, KAYE and TITONE. Taking no part: Judge ALEXANDER.