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Jury Verdict Finding No Negligence Reversed on Appeal/Article 16 Defenses Re: Negligence of Non-Party Allowed

A mechanic working in the basement of a two-family house left a trap door, which was directly outside the side door of plaintiff’s apartment, open.  Plaintiff fell through the open trap door.  In setting aside the jury verdict finding the mechanic was not negligent, the Second Department wrote:

A jury verdict should not be set aside as contrary to the weight of the evidence unless the jury could not have reached the verdict by any fair interpretation of the evidence … . In exercising our authority to review the weight of the evidence …, we find that the jury’s verdict was contrary to the weight of the evidence. “Negligence involves the failure to exercise the degree of care that a reasonably prudent person would exercise in the same circumstances” …. Applying this standard, we conclude that the jury’s determination that the defendant was not negligent was not based on a fair interpretation of the evidence, since a reasonable person should have been aware that leaving the trapdoor open created an unsafe condition …. Accordingly, we reverse the amended judgment, reinstate the complaint, and remit the matter … for a new trial.

The Second Department also made the following findings, pursuant to CPLR article 16, about defenses based upon the liability of the non-party out-of-possession landlord:

…[T]he Supreme Court did not err in denying that branch of the plaintiff’s motion which was to preclude the defendant from offering evidence as to the liability of a nonparty, the out-of-possession landlord, for the purpose of limiting the defendant’s liability for noneconomic damages pursuant to CPLR article 16. Contrary to the plaintiff’s contention, a defendant is not required to plead that defense as an affirmative defense (see CPLR 1601[1]…).

…[T]he Supreme Court properly denied the plaintiff’s motion to dismiss the defendant’s affirmative defense pursuant to CPLR article 16, as the defendant presented evidence demonstrating that a question of fact existed as to the negligence of the nonparty landlord (see CPLR 1603…).  Cooper v Burt’s Reliable, Inc, 2013 NY Slip Op 02529, 2012-00098, Index No 6053/07, 2nd Dept 4-17-13

 

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