Pavlou v. City of New York

OPINION OF THE COURT

Buckley, J.

This case presents, inter alia, an attempted jury nullification in the civil context.

The factual findings of the jury, as reflected on the verdict sheet, were: (1) the Industrial Code was violated, the violation constituted negligence, but the negligent violation was not a substantial factor in causing plaintiffs injury; (2) the crane was not defectively designed or manufactured; and (3) plaintiffs employer, third-party defendant Felix Industries, Inc. (Felix) was negligent, which negligence was a substantial factor in causing plaintiffs injury. Thus, the jury found that the cause of plaintiffs injury was Felix’s negligence in operating a crane that already had a crack, and not the lifting of a load in excess of the Industrial Code’s weight allowance or a flaw in the design or manufacture of the crane. Such findings are fully consistent with each other and with the evidence presented at trial. The unrefuted expert testimony established that, due to the preexisting cracks, it was not safe to operate the crane at all and that the crane would have failed upon lifting any load, including one well within the weight limitations of the Industrial Code.

After the jury was discharged, plaintiffs counsel informed the jurors that their special verdict would result in no monetary damages for plaintiff. At that point, the jurors stated that, had they known the effect of their response to question 3 (whether the negligent violation of the Industrial Code was a proximate cause of plaintiffs injury), they would have answered it in the affirmative, in order to enable plaintiff to obtain a monetary award. It was only in the identically worded, attorney-drafted affidavits that the jurors studiously claimed their determination of proximate cause concerning the Industrial Code was “misrecorded.”

As in Mayer v Goldberg (241 AD2d 309, 312 [1997]), “[w]hile the jury may have wanted to award damages on a theory of its own, it clearly understood the fundamental question before it.” None of the jury notes indicated any confusion over the standard for determining the issues of the Industrial Code, negligence or proximate cause. The jurors understood and resolved those issues, their questions being limited to ascertaining the consequences to the City; therefore, the verdict should not be disturbed, notwithstanding the fact that “the jury ventured beyond the issue[s] before it, awarding damages under its own theory” (id.; see also Marine Midland Bank v Russo Produce Co., 50 NY2d 31, 40-41 [1980]). Thus, the jury should not have apportioned liability between Felix and plaintiff, or fixed an amount of damages, once it determined that the violation of the Industrial Code was not a proximate cause and that the crane manufacturer was not negligent. The fact that the jury attempted such an award is a superfluous act that does not require a new trial.

Moreover, the verdict with respect to the claim under Labor Law § 241 (6) was not against the weight of the evidence. Plaintiff asserts that there is no fair interpretation of the evidence that would allow a jury to find that the load attached to the crane violated Industrial Code (12 NYCRR) § 23-8.2 (g) (2) (iii) but was not a proximate cause of his injuries. Thus, he maintains that the jury’s finding with respect to the load attached to the crane was against the weight of the evidence.

A jury’s verdict should not be lightly overturned. Plaintiff has not met the heavy burden of demonstrating that the preponderance of the evidence is so great that the jury could not have reached its verdict upon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). The experts consistently testified that the lifting or dragging of any weight, even within the limitations of the Industrial Code, would have caused the cracked crane to fail, and plaintiff offered no evidence to the contrary. Under such circumstances, the jury could find that the operation of a damaged crane, rather than the lifting of an excessive weight, was the sole proximate cause. Under the dissent’s construction, a violation of the Industrial Code’s weight allowance is, of itself, always a contributing cause, where the crane collapses. However, “[t]he issue of whether a defendant’s negligence was a proximate cause of an accident is separate and distinct from the negligence determination. A defendant may act negligently without that negligence constituting a proximate cause of the accident” (Ohdan v City of New York, 268 AD2d 86, 89 [2000], lv denied 95 NY2d 769 [2000]). Even the dissent concedes that the jury’s finding was “theoretically” possible. Accordingly, I would not intrude upon the jury’s fact-finding role with respect to the issue of proximate cause.

Although the jury’s factual findings were consistent and supported by the evidence, and therefore did not necessitate an inquiry into the verdict, where, as here, the trial court itself believes there might be some defect requiring clarification of the jury verdict, it is the better practice to question the jury immediately or, if not possible, direct the jurors to return the following morning, giving appropriate instructions before discharging them.

Accordingly, the order of the Supreme Court, New York County (Jane Solomon, J.), entered February 6, 2004, insofar as it granted plaintiffs’ motion pursuant to CPLR 4404 (a) for a new trial on the City’s statutory liability under Labor Law § 241 (6) claim, should be reversed, on the law, without costs, plaintiffs’ motion denied, that part of the jury verdict reinstated, and the matter remanded for further proceedings.