Romanchick v. Havens

Judgment unanimously affirmed without costs. Memorandum: The court properly instructed the jury on the theories of implied assumption of risk and comparative negligence, as there was sufficient evidence to support both theories (see, McCabe v Easter, 128 AD2d 257). Although the court should not have instructed the jury to apportion the damages under each theory, but rather should have instructed the jury to return only one apportionment of culpable conduct (McCabe v Easter, supra), plaintiff was not prejudiced by this error. The jury found that defendants were not negligent and never reached the apportionment issue; therefore, the error in the charge was harmless (see, Mossidus v Hartley, 106 AD2d 805, 806). The court’s charge concerning the duty of a retailer to warn was adequate and does not require reversal. We have examined plaintiff’s remaining arguments and find them to be either unpreserved or lacking in merit. (Appeal from judgment of Supreme Court, Monroe County, Provenzano, J.— negligence.) Present — Dillon, P. J., Doerr, Lawton, Davis and Lowery, JJ.