The First Department determined the jury should not have been charged on comparative negligence in this Labor Law 241 (6) action. Plaintiff’s decedent was injured when he tripped and fell over construction debris. Because defendant was obligated to keep the area clear of debris, and because there was no clear path plaintiff’s decedent could use, the comparative negligence jury instruction was not warranted. The First Department further determined that the award for pain of suffering ($100,000) was inadequate and the failure to award any damages for loss of consortium was against the weight of the evidence and rendered the verdict inconsistent. Pursuant to plaintiff’s motion to set aside the verdict, a new trial was ordered unless defendant agreed to a $400,000 award for pain and suffering and a $50,000 award for loss of consortium:
The evidence established that, as a result of his hand injury, [plaintiff’s decedent] developed, inter alia, nerve damage, painful symptoms consistent with reflex sympathetic dystrophy, anxiety, and significant limitation of the use of his left hand due to permanent contracture of the fingers. Upon a review of other relevant cases, we find that the award of $100,000 for pain and suffering materially deviates from reasonable compensation … .
The jury’s decision not to award damages to plaintiff (wife) for loss of consortium was against the weight of the evidence … . Plaintiff (wife) described significant changes in [plaintiff’s decedent’s] behavior after his accident and explained the impact this had on their relationship. On this record, the jury’s decision to award damages for pain and suffering, but none for loss of consortium, is inconsistent. Kutza v Bovis Lend Lease LMB, Inc., 2015 NY Slip Op 06753, 1st Dept 9-8-15