Tomorrow, March 14, 2015, is Pi Day. (3.1415, don’t you see?) In honor thereof, I present:
___ AD3d ___, 2015 NY Slip Op 00849 [1st Dept., 2015]
When a verdict is internally inconsistent, the allowable remedies are either sending the jury back to reconsider or a new trial. The trial court may not resolve the inconsistency by making its own findings of fact.
This was a sidewalk trip-and-fall in front of a storefront owned by the defendant PI Associates and leased to the defendant Pretty Girl. The jury found that the plaintiff, PI and Pretty Girl were all negligent, but that only Pretty Girl’s negligence was a proximate cause of the accident. The jury then apportioned fault at 80% against Pretty Girl and 10% each against plaintiff and PI. The apportionment against plaintiff and PI was, of course, inconsistent with the finding of lack of causation.
The inconsistency was immediately recognized by the court and the parties. Rather than send the jury back for further consideration, the court discharged the jury and entertained motions. Plaintiff moved to set aside the inconsistent verdict and for a directed verdict finding that PI’s negligence was a proximate cause. PI, for its part, moved to set the inconsistent verdict aside and for a directed verdict setting its share of fault at zero. Supreme Court chose a third alternative, setting the verdict aside and issuing a directed verdict finding the negligence of both plaintiff and PI to have been proximate causes of the accident.
That was improper. Having discharged the jury under circumstances where its actual intent could not be determined, the court should have ordered a new trial. At this point, however, things went further south. PI and Pretty Girl made new motions for directed verdict. PI moved for a directed verdict on its claim against Pretty Girl for contractual indemnification under their lease, and Pretty Girl cross-moved for a directed verdict dismissing all claims against it. For reasons not stated by the Appellate Division, Supreme Court denied PI’s motion and granted Pretty Girl’s, dismissing the complaint as against Pretty Girl and imposing its 80% liability on PI, for a total of 90% on PI.
Worse, PI’s attempted appeal from so much of the order as found it 90% at fault was dismissed, the Appellate Division finding that that portion of the order did not decide a motion on notice. Still worse for PI, the Appellate Division also dismissed its appeal from so much of the order as dismissed the complaint as against Pretty Girl, on the grounds that PI was not aggrieved by that dismissal.
PI’s appeal as to contractual indemnification was successful, since the lease clearly provided that the responsibility for sidewalk repairs was on Pretty Girl as the tenant, and that Pretty Girl had to indemnify PI from damage claims arising out of its breach.
The upshot: There will have to be a retrial on liability, but Pretty Girl, found by the jury to have been 80% at fault, will not be a direct defendant and its liability will not be considered. Rather, the issue will be the relative liability of PI and the plaintiff. Pretty Girl will be deemed a third-party defendant, liable to PI for contractual indemnification.