## Facts

- Fourteen-year-old Robert Schechter was injured in a nighttime motorboat collision on August 25, 1964, while operating his father’s boat with a passenger seated beside him.
- Evidence described clear, moonlit conditions; plaintiff’s evidence indicated his boat was lighted and moving slowly, while the other boat approached at high speed.
- Schechter suffered severe injuries, including skull and other fractures, and was comatose for several days.
- Medical testimony attributed Schechter’s brain damage to the collision and stated that the injury caused amnesia preventing him from recalling the events surrounding the accident.
- Liability-related facts (including speed and lighting) were disputed at trial, and Schechter’s amnesia prevented him from giving his own account.

## Issues

1. Whether a plaintiff with accident-induced amnesia, proven by clear and convincing evidence to result from the accident, is entitled to a jury instruction allowing a lesser degree of proof under the *Noseworthy* doctrine.
2. Whether failure to give (or withdrawal of) that instruction requires reversal and a new trial.

## Decision

- The Court of Appeals of New York reversed the Appellate Division and ordered a new trial.
- The court held that when accident-caused amnesia is clearly and convincingly established, the plaintiff should not be held to as high a degree of proof as a plaintiff able to testify about the occurrence.
- Because the trial court withdrew an instruction that would have allowed the jury to consider this reduced degree of persuasion, the judgment for the defendant could not stand.

## Legal Principles

- Under the *Noseworthy* doctrine, when a plaintiff is deprived of the ability to testify about the injury-producing event (classically due to death), the plaintiff may be held to a lesser degree of proof than other plaintiffs.
- Accident-induced amnesia may warrant the same lesser-degree-of-proof instruction when the plaintiff shows by clear and convincing evidence that the amnesia was caused by the accident at issue.
- The lesser-degree-of-proof concept does not relieve the plaintiff of the ultimate burden of persuasion; it authorizes the jury to weigh the evidentiary handicap when assessing whether negligence and related issues have been proven.

## Conclusion

The court required a new trial because an amnesiac plaintiff, whose inability to recall the accident is clearly shown to be caused by the accident, is entitled to a *Noseworthy*-type jury instruction permitting a lesser degree of proof.


Schechter v. Klanfer, 269 N.E.2d 812 (N.Y. 1971)