Dessasore v. New York City Housing Authority

Order, Supreme Court, Bronx County (John A. Barone, J.), entered March 20, 2009, which denied defendant’s posttrial motion to set aside the jury’s verdict on liability, granted both parties’ motions to set aside the damages award and directed a new trial on damages, modified, on the law, defendant’s motion to 441 set aside the liability verdict granted and the matter remanded for a new trial of all the issues, and otherwise affirmed, without costs. Plaintiff seeks damages for injuries he sustained when he fell down a stairway in defendant’s building after tripping on a handrail that had partially come loose from the wall and was resting at the top of the steps. At trial, plaintiff conceded that he was looking straight ahead at the time of the accident and had not reached for the handrail before commencing his descent on the stairway. There was evidence that plaintiff may have been talking on his cell phone at the time of the accident. The jury found that both plaintiff and defendant were negligent but that plaintiffs negligence was not a substantial factor in causing his injuries. It awarded plaintiff $5 million for past pain and suffering and nothing for medical expenses or future pain and suffering. The jury’s award of zero damages for medical expenses and future pain and suffering cannot be explained rationally, given the extent of plaintiffs injuries and the evidence of permanence. As the trial court found, the jury either did not understand the court’s instructions on damages or did not follow them. The court properly declined to speculate as to the jury’s thinking, and directed a new trial on damages. We would go further. Although defendant’s challenge to the verdict on liability as inconsistent is unpreserved because it was not raised before the jury was discharged (see Barry v Manglass, 55 NY2d 803 [1981]), portions of the verdict are indisputably irrational, not only with respect to the anomalous damages award, but also with respect to the issue of liability. Accordingly, we consider the matter in the interest of justice (CPLR 4404 [a]). The jury’s finding of liability is irreconcilably inconsistent. As noted, there was evidence that plaintiff was not looking down before he proceeded to descend the stairs, that he was not paying attention to his surroundings, and that he was talking on a cell phone just before he fell. Under these circumstances, “the issues of negligence and proximate cause are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (McCollin v New York City Hous. Auth., 307 AD2d 875, 876 [2003]). Concur—Andrias, J.P., Moskowitz and Abdus-Salaam, JJ.