The facts in the recent Appellate Division, Second Department decision in Torres v City of New York are a good example of an attorney's need to listen closely to the trial court's charge to the jury. It also shows that a litigator should "run through" the proposed verdict sheet well in advance of the trial in anticipation that the court might get notes from the jury. Torres concerns the intersection of three interesting issues: Labor Law § 241 (6), the concept of substantial factor in tort law, and juror confusion.
The plaintiff injured his right hand while working as a member of an excavation crew on a project in Staten Island, NY. The City of New York and City of New York Department of Design and Construction hired the plaintiff's employer to work on the project. A bucket excavator crushed the plaintiff's hand against the inside of a steel trench box while he was working inside of it. The box was 10 feet below grade level
The plaintiff, and his wife suing derivatively, commenced a personal-injury action against, among others, the City defendants, alleging, among other claims, a violation of Labor Law § 241 (6). The § 241(6) cause of action was premised upon an alleged violation of Industrial Code 12 NYCRR) § 23-4.2 (k), which provides, in relevant part, that "[p]ersons shall not be . . . permitted to work in any area where they may be struck . . . by any excavation equipment."
A jury trial was held on the issue of the City defendants' liability. During deliberations, the jury sent a note to the trial court requesting, among other things, a written copy of Labor Law § 241(6). The trial court denied the request and, instead, repeated its charge on the law. Note: It is important to make sure the court's recitation of the jury charge accords with the Pattern Jury Instructions (PJI) word-for-word to make sure there is no error. In Torres, the plaintiffs' attorney subsequently advised the court that it erred in its charge to the jury by omitting a portion of the PJI and requested a curative instruction. More specifically, the court did not instruct the jury that in order to return a verdict in the plaintiffs' favor and against the City defendants on the issue of liability, it must find that "the failure to use reasonable care was a substantial factor" in causing the injured plaintiff's injuries. The court denied the request.
An inconsistent verdict followed. The jury found that the City defendants violated 12 NYCRR § 23-4.2 (k) but that the violation was not a substantial factor in causing the accident. Although the instructions on the verdict sheet directed the jury to end its deliberations if it found that the violation of Industrial Code (12 NYCRR) § 23-4.2 (k) was not a substantial factor in causing the accident, the jury further found that the injured plaintiff was negligent and that his negligence was a substantial factor in causing the accident. The jury then proceeded to apportion fault 25% to the City defendants and 75% to the injured plaintiff. How could the jury apportion fault against the City defendants while finding that they were not a substantial factor causing the accident?
The trial court instructed the jurors to reconsider the verdict. More confusion ensued. The jury returned a second verdict which was identical to the first verdict, except that the jurors did not answer the questions as to the injured plaintiff's negligence and the apportionment of the parties' fault. Under these circumstances, you certainly cannot assume the jury did not find fault against the plaintiff.
The plaintiffs then moved pursuant to CPLR 4404 (a) to set aside the jury verdict, which the Court denied. The court subsequently issued a judgment in favor of the City defendants and against the plaintiffs, in effect, dismissing the cause of action alleging a violation of Labor Law § 241 (6).
Since the jury's initial verdict was internally inconsistent, the Second Department agreed with Supreme Court's determination to direct the jury to reconsider its verdict. Because the jury in its second verdict did not answer the questions regarding the plaintiff's negligence, the Second Department concluded that the record supported the conclusion that the second verdict, although internally consistent, was unreliable and the product of substantial juror confusion The Second Department noted that, after the jury returned its initial verdict, the trial court simply advised the jury to follow the directions on the verdict sheet. The Second Department concluded that the trial court should have reinstructed the jury on the concept of comparative fault and the meaning of the term "substantial factor," especially in light of the fact that its prior charge "incompletely convey[ed] the germane legal principles to be applied" (J.R. Loftus, Inc. v White, 85 NY2d 874, 876 [1995]).
The Second Department reversed the judgment and ordered a new trial.
Comments