Opinion
Index No. 15852/06
07-02-2013
DEBRA WATSON, Plaintiff, v. JADE LUXURY TRANSPORTATION CORP., FRANCISCO CARRERO, DEREK GONZALEZ and "XYZ", Defendants.
MEMORANDUM DECISION/
ORDER
HON. MARK FRIEDLANDER:
Plaintiff moves this Court for a post-trial order, pursuant to CPLR 4404, setting aside the jury verdict in this matter and directing a new trial as to liability. Plaintiff contends that the jury's verdict was irreconcilably inconsistent.
This matter arises out of an automobile accident which occurred on August 22, 2005. Plaintiff was injured while a passenger in a livery vehicle owned by defendant Jade Luxury Transportation Corp. ("Jade") and operated by defendant Francisco Carrero ("FC"). The livery car was involved in an intersection accident with a vehicle operated by defendant Derek Gonzalez ("DG"). DG defaulted and did not testify at trial. At its point of entry into the intersection, DG's vehicle was on a road governed by a stop sign. FC's livery vehicle was on a bad which did not have any traffic control signal at the intersection.
I. The Trial.
A trial, as to liability only, was held in March 2013. At trial, testimony was heard from plaintiff and from FC. Plaintiff, as a passenger, did not observe the positions and actions of the respective vehicles sufficiently to offer definitive testimony as to how the accident occurred. Thus, because of the absence of the second driver, the jury's information as to the event was drawn almost entirely from the examination and cross-examination of FC.
FC testified through a Spanish language interpreter. He was cross-examined based on deposition testimony elicited without an interpreter. He stated at trial that he could speak English, but sometimes had difficulty explaining himself. During cross-examination, when pressed about an inconsistency between his deposition response and his response at trial, he blamed the lack of an interpreter at deposition, although he had not requested one at that time. In general, although it cannot be determined with certainty whether FC's testimony was hampered by the claimed language problems, it cannot be denied that some of his key responses were less than crystal clear. In fact, they sometimes seemed to exemplify the wording of the standard jury instruction that testimony may not conform to facts as they occurred "because the witness has not expressed himself clearly in testifying."
Plaintiff blamed FC for the accident, claiming that he failed to observe what he should have seen, in that he should have been aware of DG's vehicle entering the intersection. Plaintiff blamed the absent driver for failure to stop at the stop sign and also for failure to observe the oncoming vehicle driven by FC. After deliberation, the jury found DG not to be negligent, and found negligence on the part of FC. However, the jury also found that FC's negligence was not a substantial factor in causing the accident.
Immediately following the verdict, plaintiff moved to set it aside as against the weight of the evidence and inconsistent. The Court denied the motion. There followed the instant motion on papers.
II. The Motion.
The opposition to the motion stresses at the outset that the Court should not grant this motion after previously ruling on the oral motion after the verdict. However, it is clear from the language of CPLR 4406 that a single post trial motion on papers is acceptable even where an oral motion has been made immediately following the verdict.
a. Sufficiency of the Evidence.
A significant part of the instant motion is devoted to the argument that the verdict was against the weight of the evidence, in that someone had to be responsible for the intersection collision, and also that FC had testified at deposition that he saw DCs vehicle even before FC entered the intersection, making him at least partially responsible for the accident. The Court will not attempt to encapsulate here all of FC's testimony, partly because the Court does not have a full transcript before it. Nevertheless, it must be noted that there appears to be an inconsistency between FC's trial testimony and his deposition testimony as to whether FC first observed DCs vehicle only seconds before the collision (and after FC was already in the intersection), or, on the other hand, at an earlier point in time, and there appears to be some inconsistency as well as to whether a truck in the same street could have blocked FC's view.
The jury could have chosen which statements of FC they regarded as truthful, assuming that they in fact had any idea of what he was actually describing. In any event, the Court's rationale in allowing the verdict to stand was based on the instruction to the jury regarding the preponderance of the evidence. If the jury believed that, with the limited testimony available, (because of a missing driver, a passenger who was not entirely attentive to the road conditions, and a driver who was not expressing himself clearly) there was not enough evidence to find any particular party liable by a preponderance of the evidence, they would have had reason to state that neither was proven to be at fault for causing the accident. This is not to say that the accident happened with no one bearing any fault. It is rather a reflection of the fact that a rational fact finder could find a failure of proof as to who was liable and, if more than one party was liable, by what proportions.
The Court does not see any reason now to depart from its view of the above, as expressed from the bench immediately after the verdict.
b. Possible Inconsistency of the Verdict.
By contrast, the argument of plaintiff as to the verdict's inconsistency has been fleshed out here with citations which the Court finds persuasive in supporting the application for a new trial. At the close of the trial, the Court, in denying plaintiff's oral motion, noted that jurors could have felt that FC had been speeding, but had slowed down by the time of the accident, and that this could explain how he was negligent but not a substantial cause of the collision. However, on reflection, and after examining the precedent, that single example of the jury's possible reasoning seems too thin a reed on which to premise the rationality of the verdict.
In the first instance, the only evidence as to FC's speeding was plaintiff's testimony that, when FC first began to drive her on that day, she told him to slow down. That interchange, which FC denied, occurred significantly before FC's vehicle even entered the street on which the accident occurred. There is no testimony from anyone that FC was speeding at any time on the street where the collision occurred, or that any "fast" driving exceeded the posted limit. A finding of negligence on the part of a party must be based on evidence placed before the jury, or it constitutes mere speculation. The Court has not been provided by the parties with a single example of evidence regarding FC's negligence which was reasonably related to the time and place of the accident, but did not constitute a substantial factor in causing such accident. Given the testimony as elicited, if the jury accepted evidence of FC's negligence, they would have had to find such negligence to be a substantial causative factor. Any other result would indeed be inconsistent.
The opposition to the motion sets forth much material asserting that the jury's finding was not "palpably wrong" in that a jury could have found FC not to be liable for the collision. Notably, though, completely absent from the opposition papers is any showing that a rational jury could find it consistent to hold FC negligent but not in such a way as to cause the accident. Nor does the opposition contest the cases on this issue set forth in the moving papers.
Plaintiff cites Dessasore v. NYCHA, 70 A.D.3d 440; Lora v. NYC, 305 A.D.2d 171; Pimpinella v. McSwegan, 213 A.D.2d 232; and Russo v. Nunez, 251 A.D.2d 162, all First Department decisions, for the proposition that verdicts inconsistent in ways similar to this one must be set aside. The appellate court, in each of the above situations, found that the issue of negligence was inextricably interwoven with probable cause. The Court finds all of the cited precedent to be on point, although it must be conceded that the last of the cases contains no descriptive facts, and the first bears a dissent by two justices who are still on that court.
In view of the clear rule set forth in the case law, and the lack of any rational basis for concluding from the evidence that FC could have been negligent but yet not a cause of the accident, the Court concludes that the issue of FC's negligence is indeed inextricably interwoven with probable cause, and that, consequently, the verdict in this matter must be set aside as inconsistent.
III. An Ancillary Issue of Wider Import.
Before concluding, a word or two is necessary concerning movant's comment that the Court did not respond to the verdict prior to discharging the jury by directing the jury to reconsider its verdict, possibly after a re-reading of the causation charge to the jurors. In the first instance, the Court does not believe that a mere repetition of the somewhat generic language of the causation charge would have clarified matters for the jurors.
More importantly, though, a request to the jurors to reconsider would have engendered additional confusion among them as to why the jury was being asked to respond to a question which they could only answer in one way. In general, when a question is posed requiring a "yes or no" answer, there is a choice as to how to respond. If a jury finding negligence must then also find causation, such jury would have a right to wonder why the second question existed at all.
Because the law provides that all fault must be proven by showing both negligence and causation, just about all personal injury trials characteristically place both questions on the verdict sheet. In the experience of the undersigned, counsel are never asked to make a showing that there is evidence which would support setting forth two separate questions. Rather, it is generally accepted that the default option is to use both. Yet, in a typical trial, the evidence presented will be geared to proving fault, and thus most evidence of negligence will relate to actions or inaction which would have direct causative impact on the accident.
In any of the above situations, then, the posing of two questions to the jury will bear the seeds of a possible inconsistent verdict. It may not occur often, but, when it does, if it results in a setting aside of the verdict, it will cause a considerable waste of resources. Once the inconsistency arises, it is very difficult to redirect the jury without either committing the impropriety of taking away its freedom of choice, or confusing the jury as to why the question existed in the first place. In view of the above, some consideration should be given to whether there should a required threshold showing imposed on one party or the other with regard to whether the two factors should be listed as separate queries or somehow united in a single question. That' is to say, what happened here raises a more generic question as to the common practice now in use.
IV. Conclusion.
For the reasons explained supra, plaintiff's motion is granted. The jury's verdict is set aside as inconsistent, and a new trial as to liability is ordered.
This constitutes the Decision and Order of the Court.
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MARK FRIEDLANDER, J.S.C.