Summary
noting that a jury may apportion liability against a defaulting defendant if the jurors believe him to be at fault
Summary of this case from Schipani v. McLeodOpinion
November 15, 1994
Appeal from the Supreme Court, Bronx County (Luis Gonzalez, J.).
A new trial is warranted in this matter due to both the defective supplemental jury charge and our determination that the jury's verdict is against the weight of the evidence.
We reach the issue of the defective supplemental jury charge despite the fact that it was not preserved for review, since defendants did not object to the supplemental charge prior to the jury resuming deliberations (CPLR 4110-b; Goldberg v. Wirtosko, 182 A.D.2d 350). However, inasmuch as we find the error in the charge to be fundamental and to warrant reversal, we exercise our discretion to review in the interest of justice (Rodriguez v Cato, 63 A.D.2d 922, 923).
The record indicates that the court probably intended the supplemental charge to instruct the jurors, inter alia, that they were not required to make specific findings regarding negligence and causation with respect to defaulting defendant Downs, but that they could apportion liability against him if they believed him to be at fault. However, the vague and ambiguous language used apparently confused the jury and left them with the false impression that they could not apportion any liability against him: he was found 50% liable after the initial charge and 0% liable after the supplemental charge. "'A charge that confuses and creates doubt as to the principle of law to be applied requires a new trial'" (Lopato v. Kinney Rent-A-Car, 73 A.D.2d 565, 566, quoting Biener v. City of New York, 47 A.D.2d 520, 521).
The record also indicates that the jury's verdict as to Downs was against the weight of the evidence. A new trial is required on this basis as well (see, Bigelow v. Acands, Inc., 196 A.D.2d 436, 438). The testimony clearly indicated that most of the damage in the four-vehicle chain collision was caused by Downs' van, the rear vehicle in the chain, colliding with plaintiff's vehicle and that impact caused the vehicles ahead to collide with each other. Evidence such as the smashed condition of the rear of Aragon's van and the smashed front end of Downs' van with the passenger side windshield cracked by impact with the passenger's head indicated that Downs was either using excessive speed or not maintaining a reasonable distance in what was described by all accounts as slow-moving stop and go traffic (see, DeAngelis v Kirschner, 171 A.D.2d 593, 594; Schildkraut v. Eagle Lines, 126 A.D.2d 480, 481, lv denied 70 N.Y.2d 605). Although the record allows for other theories of liability, a fair interpretation of it supports the theory that Downs bore significant liability, especially given the absence of evidence explaining or excusing his collision with plaintiff.
Concur — Carro, J.P., Wallach, Kupferman, Ross and Williams, JJ.