Martinez v. Wascom

Memorandum: Plaintiff commenced this action seeking damages for injuries he sustained when he was struck by a vehicle operated by defendant while riding a motorized scooter across West Main Street near the intersection of West Main Street and Reynolds Street in the City of Rochester. Following a bifurcated trial on liability, the jury found that defendant was negligent but that his negligence was not a proximate cause of the accident. Plaintiff made a post-trial motion for a new trial on liability, seeking to set aside the verdict as inconsistent and against the weight of the evidence. Supreme Court granted the motion, and we affirm. 1416 “ ‘A verdict rendered in favor of a defendant may be successfully challenged as against the weight of the evidence only when the evidence so preponderated in favor of the plaintiff that it could not have been reached on any fair interpretation of the evidence’ ” (Wojcik v Kent, 21 AD3d 1410, 1411-1412 [2005]). “A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is inconsistent and against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Skowronski v Mordino, 4 AD3d 782, 783 [2004] [internal quotation marks omitted]). Here, the evidence presented at trial establishes that the accident occurred after defendant, who was found by the jury to have negligently approached the intersection, swerved the vehicle he was driving in order to avoid striking a vehicle stopped in the curb lane of West Main Street. In swerving his vehicle, defendant struck plaintiff at or near the center line of West Main Street as plaintiff attempted to cross that road. We agree with the court that the jury’s verdict was inconsistent and against the weight of the evidence because, according to the evidence presented at trial, plaintiff was struck by defendant’s vehicle only because of his proximity to the center line of West Main Street when defendant reached that point of the street by negligently swerving to avoid the stopped vehicle at the curb. Thus, it can only be concluded that the jury’s verdict that defendant’s negligence was not a proximate cause of the accident was both inconsistent (see id.), and could not have been reached upon any fair interpretation of the evidence (see generally Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]). We note in any event that “[t]he determination of the trial court to set aside a jury verdict as against the weight of the evidence ‘must be accorded great respect’ ” (American Linen Supply Co. v M.W.S. Enters., 6 AD3d 1079, 1080 [2004], lv dismissed 3 NY3d 702 [2004]), and we will not on the record before us disturb the court’s determination. All concur except Centra, J.P., and Peradotto, J., who dissent and vote to reverse in accordance with the following memorandum: