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FAILURE TO INSTRUCT JURY ON EFFECT OF STATUTORY AND REGULATORY VIOLATIONS REQUIRED REVERSAL AND A NEW TRIAL IN THIS SLIP AND FALL CASE.

The Second Department determined the trial judge’s failure to instruct the jury on the effect of the defendant’s violation of a statute and/or a regulation required reversal of the defense verdict in this slip and fall case. The New York State Building Code and the Americans with Disabilities Act require eight-foot wide aisles for access to handicapped parking spots.  Plaintiff, who had a handicapped parking permit, slipped on a grassy slope after getting out of his car. The plaintiff’s expert testified the parking spot where plaintiff fell did not comply with the statutory/regulatory requirements for handicapped parking. The plaintiff requested the jury be instructed on the effect of a statutory violation (negligence per se) and the defendant requested the jury be instructed on the effect of a regulatory violation (some evidence of negligence). The judge denied both requests. The Second Department ordered a new trial:

Jury instructions should adequately convey “the sum and substance of the applicable law to be charged” … . A new trial is warranted when an error is “so significant that the jury was prevented from fairly considering the issues at trial” … .

“The general rule is that the violation of a statute that establishes a specific safety duty constitutes negligence per se” … . When evidence is presented that a defendant violated such a statute, the jury’s role is to determine whether the violation of that statute proximately caused the plaintiff’s injury (… PJI 2:25). Moreover, if proven, a violation of the Building Code of New York State can be considered by a jury as some evidence of negligence (… PJI 2:29…). * * *

Based on the evidence, the trial court should have charged the jury as to the language of the applicable sections of the Americans with Disabilities Act along with PJI 2:25 and the applicable sections of the Building Code of New York State and the Property Maintenance Code of New York State, in conjunction with PJI 2:29. The failure to do so cannot be considered harmless error since these provisions are applicable to the subject parking lot … . DiLallo v Katsan LP, 2015 NY Slip Op 09248, 2nd Dept 12-16-15

MONTHLY COMPILATION INDEX ENTRIES:

NEGLIGENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS)/EVIDENCE (EFFECT OF STATUTORY AND REGULATORY VIOLATIONS IN NEGLIGENCE CASE)/STATUTORY VIOLATION (NEGLIGENCE PER SE)/REGULATORY VIOLATIONS (SOME EVIDENCE OF NEGLIGENCE)

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