The First Department, over a dissent, determined the trial evidence was sufficient to support the jury’s conclusion the defendant hospital had constructive notice of a worn rubber mat. The jury could reason that the wearing of the mat, resulting in a hole, occurred over a period of time and should have been noticed by the defendant. The fact that plaintiff’s testimony was the only evidence of the claimed defect did not render the evidence insufficient. The motion to set aside the verdict was properly denied and the verdict was not against the weight of the evidence:
Plaintiff testified that as she entered the playground with her five-year-old grandson, her foot became caught in a hole in the rubber mat, and she fell forward, her right elbow striking the ground. Plaintiff described the hole as being caused by “worn out” rubber. * * *
To set aside a jury verdict as unsupported by sufficient evidence, the movant must demonstrate that “there is simply no valid line of reasoning and permissible inferences which could possibly lead rational [people] to the conclusion reached by the jury on the basis of the evidence presented at trial” … . The standard for setting aside a verdict as against the weight of the evidence is “whether the evidence so preponderate[d] in favor of the [movant] that [the verdict] could not have been reached on any fair interpretation of the evidence” … .
The liability verdict was based on legally sufficient evidence of defendant’s constructive notice of a dangerous condition on its premises and was not against the weight of the evidence … .
Plaintiff’s testimony that she was caused to fall when her foot became ensnared in a “worn out” section of the rubber mat was sufficient to support a finding of liability … . The fact that plaintiff’s testimony provided the lone evidence of the claimed defect is not a basis to conclude that there was insufficient evidence of a hazardous defect to impose liability on the premises owner … .
The dissent’s contention that there was insufficient evidence to support the inference that the worn out area was visible or apparent by reasonable inspection cannot withstand scrutiny. A “worn out” section by definition occurs over the passage of time. As the trial court noted “the very description of a worn out area pre-supposes a slow process, and can support a jury inference [*3]that the defect should have been discovered.” The jury having reasonably credited plaintiff’s direct observations and testimony over that of the defense witnesses, it is not for us to second-guess the verdict. Cruz v Bronx Lebanon Hosp. Ctr., 2015 NY Slip Op 05601, 1st Dept 6-30-15