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ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT).

The Third Department determined defendant’s motion to set aside the verdict in this stairway-fall case was properly denied. Plaintiff’s decedent was found at the bottom of a deteriorating concrete exterior staircase and later died from his injuries. Although plaintiff’s decedent made some remarks to emergency personnel about the fall, he died before he could be deposed. The Third Department described the evidentiary standards in such a case and found that the “Noseworthy” jury instruction was properly given:

… [P]laintiff had to rely entirely on circumstantial evidence to establish that defendant’s negligence was the proximate cause of decedent’s fall. In doing so, plaintiff was not “required to rule out all plausible variables and factors that could have caused or contributed to the accident” … . Rather, plaintiff had to prove that defendant’s negligence was the more likely cause of decedent’s fall than any other potential cause… . Plaintiff’s proof had to “render other causes sufficiently remote such that the jury [could] base its verdict on logical inferences drawn from the evidence, not merely on speculation” … . …

We are also unpersuaded by defendant’s contention that Supreme Court erred in giving a jury charge based upon Noseworthy v City of New York (298 NY 76 [1948]), which — in cases where the alleged negligent act or omission resulted in death — imposes a lighter burden of persuasion on the plaintiff by allowing the jury “greater latitude in evaluating such factual issues as the decedent might have testified to had [he or she] lived” … . The theory behind the Noseworthy charge is “that it is unfair to permit a defendant who has knowledge of the facts to benefit by remaining mute in a wrongful death action where the decedent is unavailable to describe the occurrence” … . The charge, however, is inapplicable “where the plaintiff and the defendant have equal access to the facts surrounding the decedent’s death” … . Tyrell v Pollak, 2018 NY Slip Op 05251, Third Dept 7-12-18

NEGLIGENCE (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/EVIDENCE (NEGLIGENCE, SLIP AND FALL, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/SLIP AND FALL (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/JURY INSTRUCTIONS (NOSEWORTHY, ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))/NOSEWORTHY (ALTHOUGH PROOF OF THE STAIRWAY FALL CASE WAS ENTIRELY CIRCUMSTANTIAL BECAUSE OF PLAINTIFF’S DECEDENT’S DEATH, THE EVIDENCE WAS SUFFICIENT TO SUPPORT THE PLAINTIFF’S VERDICT AND THE JURY WAS PROPERLY GIVEN THE NOSEWORTHY INSTRUCTION (THIRD DEPT))

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