Opinion
107480/04.
Decided May 8, 2008.
Angiuli, Katkin Gentile, LLP, Statne Island, NY, Attorneys for Plaintiff.
Hammill, O'Brien, Croutier, Dempsey Pender, P.C., Syosset, NY, Attorneys for Defendant.
This motion seeks to set aside a jury verdict awarding plaintiff zero dollars on damages and ordering a new trial on damages. Because the jurors violated the trial judge's instructions on determining liability by substituting their own version of the standard for damages, the Court sets aside the verdict on damages and orders a new trial on that issue.
The plaintiff, a building superintendent, introduced evidence showing that he tripped over a steam pipe that defendant R R Electrical Associates had exposed when it removed a step covering the pipe to facilitate its electrical work at the premises. Plaintiff alleged injuries of a torn rotator cuff, a meniscus tear requiring surgery, a cerebral concussion, lumbar sprain and radiculopathy.
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The jury verdict determined that the premises was not reasonably safe, the defendant electrical contractor negligently caused plaintiff's injuries, that the plaintiff's contributory negligence also contributed to his injuries and that each was 50% liable. Then, mysteriously, they found there were no lost earnings and no pain and suffering.
After the jury was polled, the plaintiff moved to set aside the verdict on damages and to order a new trial on that issue. The Court denied the motion. The attorneys then went into the jury room to discuss the verdict with the jurors. Three of the jurors left and three remained to talk to the attorneys.
The attorneys then returned to the courtroom where the plaintiff's attorney asked that the jurors be polled on the record because some of the jurors had alleged that the reason the jurors found no damages was because they decided that the building owner, which was plaintiff's employer and not a party to the lawsuit, should pay for plaintiff's injuries. Over defendant's objection, the Court polled the three jurors and found that two of the remaining three, while they believed the exposed pipe was the result of defendant's negligence in not re-covering the exposed pipe had indeed been a cause of plaintiff's injuries, but that the building owner should bare the burden of the damages to plaintiff.
No instructions were given to the jury to consider the building owner's liability. Such liability was excluded because of the employer-employee relationship between the building owner and the plaintiff, which under Article 11 of the Workers' Compensation Law shielded
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the building owner from liability. The jury thus went beyond the Court's instructions on the law and applied their own notions of who should be held accountable for plaintiff's injuries.
Contrary to defendant's assertion that the Court did not have the authority to place on the record the basis of the jurors' verdict because of the allegations of plaintiff's counsel, it was entirely appropriate for the Court to question the jurors on the record ( Hutchinson v Clare Rose of Nassau , 40 AD3d 702 , 835 NYS2d 698 [2d Dept 2007]. ["W]here, as here, the trial judge concluded that a substantial breach of her instructions to the juror [sic] had occurred, it was an improvident exercise of discretion to deny the plaintiff's request to make a proper record to facilitate subsequent judicial review" id at 40 AD3d 704].
The verdict on damages cannot stand where the verdict was based on a juror's own notion of what the law is ( EdBauer v Board of Education , 286 Ad2d 999, 730 NYS2d 924 [4th Dept 2001]. [The award should have been $10,000, but only $4,400 was awarded because of a juror's statement during deliberations that the $4,400, when invested, would be $10,000. The judge's instructions were to award the full amount of damages without reduction to present value.] See, also, Beemer v Town of Portville , 2003 WL 21402040, NY Slip Op 51021(u), [Sup Ct Cattaragus Cty 2003]. Where during deliberations a juror convinced the other jurors that plaintiff's future medical bills would be paid by Workers' Compensation, the award of nothing for future damages was set aside and a new trial on damages was ordered. The Court concluded that the verdict was based on a juror's own notion of what the
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law should be instead of following the Court's instructions ( Fitzgibbons v NYS University Construction Funds 177 Ad2d 1033 [4th Dept 1991]). Accordingly, it is
ORDERED that the award on damages is set aside and a new trial on damages is directed; and it is further
ORDERED that a pre-trial conference shall be held in Part 2 at 9:30 on May 23, 2008.