Helton v. Hirschman

Smith and Lawton, JJ. (dissenting).

We respectfully dissent. On appeal, Felicia Helton (plaintiff) limited her argument to whether Supreme Court erred in apportioning fault to the nonparty protesters because defendants failed to plead CPLR article 16 as an affirmative defense and because plaintiff could not obtain personal jurisdiction over the protesters. We do not agree with the majority that we should consider the issue of jury confusion. In our view, plaintiff abandoned that issue and this Court should not reach it in the interest of justice (see Ciesinski v Town of Aurora, 202 AD2d 984 [1994]; cf. Brown v Moodie, 116 AD2d 980, 981-982 [1986]). Nor do we agree with the majority’s conclusion with respect to that issue.

Plaintiff had the burden of establishing defendants’ negligence, and the role of the jury ended when it found that defendants’ negligence was not a factor in bringing about plaintiffs injuries. Consequently, the issue of apportionment is surplusage. Because there is a “valid line of reasoning and *990permissible inferences that could . . . lead rational persons to the conclusion reached by the jury on the basis of the evidence presented at trial” (Ruddock v Happell, 307 AD2d 719, 720 [2003]), we would affirm. Present—Hurlbutt, J.P., Gorski, Martoche, Smith and Lawton, JJ.