Carpinello, J.
Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered June 5, 2002 in Schenectady County, which granted plaintiffs motion to set aside the verdict and ordered a new trial.
Plaintiff commenced this action against defendant claiming that it negligently retained John Humphrey, a bus driver who purportedly posed a known danger to its female patrons. Plaintiff alleged that Humphrey forcibly sodomized and sexu[1060]*1060ally abused her while the two were alone on a bus on the afternoon of October 15, 1996. The incident allegedly occurred in the middle of a public street in the City of Schenectady, Schenectady County, near a staging area for many of defendant’s buses. According to plaintiff, the alleged sodomy ended when another bus driver, en route to that staging area, pulled up beside Humphrey’s bus in an attempt to pass and sounded his horn. Plaintiff did not sue Humphrey for her emotional and psychological damages as a result of this alleged incident.
At trial, despite an evidentiary error prejudicial to defendant, the jury returned a verdict in its favor.1 Specifically, the first question on the verdict sheet asked, “Did the non-party, John Humphrey, engage in negligent or intentionally harmful conduct toward [plaintiff] on October 15, 1996?” The jury unanimously responded in the negative and, thus, reached no other issue. Supreme Court, however, granted an oral motion to set aside this verdict. Defendant appeals. Finding, as we do, that Supreme Court erred in granting plaintiffs motion, we reinstate the jury verdict.
The narrow issue before us is whether Supreme Court, by granting plaintiff’s motion to set aside the verdict, erred in determining that the jury failed to properly consider the evidence that was before it, which included the improperly admitted evidence of Humphrey’s guilty plea (see n 1, supra). While the resolution of a motion to set aside a jury verdict as against the weight of the evidence “involves an application of that professional judgment gleaned from the Judge’s background and experience as a student, practitioner and Judge” (Nicastro v Park, 113 AD2d 129, 135 [1985]), there must be a judicial finding that a contrary verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Maisonet v Kelly, 228 AD2d 780, 781 [1996]).
[1061]*1061Fundamentally, it was plaintiffs obligation to prove all of the elements of her negligence case against defendant, including the element of harm (see Detone v Bullit Courier Serv., 140 AD2d 278, 279 [1988], lv denied 73 NY2d 702 [1988]; see also Vanderhule v Berinstein, 285 App Div 290 [1954]; see generally 29 Am Jur Trials, Negligent Hiring of Employee § 10). As aptly stated in Detone v Bullit Courier Serv. (supra): “An employer may, of course, be required to answer in damages for the tort of an employee as against a third party when the employer has either hired or retained the employee with knowledge of the employee’s propensity for the sort of behavior which caused the injured party’s harm” (id. at 279 [emphasis added]). Here, defendant defended the negligence charge by disputing that plaintiff was indeed harmed by Humphrey (i.e., no sodomy took place) and by disputing that it had notice of any propensity on his part to sexually abuse women. To be sure, a significant portion of the evidence produced at the trial focused on Humphrey’s alleged misconduct with other women prior to October 15, 1996 and defendant’s knowledge of, and responses to, such incidents. We need not comment on the weight of such evidence since the first factual issue for jury resolution concerned whether Humphrey engaged in the conduct that allegedly harmed plaintiff on October 15, 1996. With respect to this threshold issue, plaintiffs version of events and overall credibility were challenged by defendant. In short, from the very beginning of the trial, the defense theory on this issue was simple and straightforward, namely, that Humphrey did not commit any act of forcible sodomy or sexual abuse against plaintiff that day and that plaintiff had conspired with at least one other woman, Arlene Sebast, to exaggerate and/or fabricate the alleged attack in order to obtain monetary compensation.
We now turn to the evidence at trial. According to plaintiff, after pulling the bus over near the staging area, Humphrey emerged from his seat, unzipped his pants and exposed himself. He then approached her, touched the outside of her sweater and forced her to sodomize him. Moreover, again according to plaintiff, during the course of same, another “bus pulled up * * * almost directly beside him, and it [sic] beeped its horn,” at which point Humphrey returned to his seat. Thus, plaintiff herself pinpoints the act of forcible sodomy as occurring prior to and contemporaneously with this second driver pulling up beside Humphrey’s bus and sounding his horn.
Plaintiffs own version of events, however, was directly contradicted by the driver of this second bus, Randy Fitch. Ac[1062]*1062cording to Fitch, as he pulled up to Humphrey’s bus and sounded his horn, he looked inside the bus. Fitch, who had a clear and unobstructed view inside the bus, observed plaintiff sitting alone with a normal but serious expression on her face. He saw no other person near her at the time and further recounted that, as soon as he sounded his horn, Humphrey immediately moved his bus. Notably, while plaintiff claimed that she was sitting directly behind the driver’s seat during the act of sodomy, Fitch placed her in an aisle-facing seat on the right side of the bus. Thus, Fitch’s testimony, which clearly conflicted with plaintiff’s testimony in significant respects, created a credibility dispute for the jury to resolve (see e.g. Pyptiuk v Kramer, 295 AD2d 768, 769-770 [2002]; Carter v Wemple, 267 AD2d 641, 642 [1999] ).2 This contradiction, however, was not the only factual and credibility contest during the trial.
Defendant also elicited facts demonstrating that plaintiff never initially told anyone, including defendant’s employees, her friends, the police or her treating therapist with whom she had a scheduled appointment on October 21, 1996, that Humphrey forced her to sodomize him. Rather, immediately after the alleged incident and up until October 23,1996, she reported only that Humphrey exposed himself and propositioned her for oral sex. Moreover, consistent with its theory of the case, defendant also put forth evidence that plaintiff had already consulted an attorney before the alleged incident with Humphrey that day. Specifically, Richard Vines, superintendent of defendant’s Schenectady operations, testified that he drove plaintiff home following the alleged incident, during which time she informed him that she had already contacted an attorney about Humphrey. With respect to this conversation, plaintiff testified that she did not “remember when [she] consulted with an attorney, but if [she] had [she] probably told [Vines] that.” She thereafter equivocated, claiming instead that she did not consult an attorney until after October 15, 1996.
Next, plaintiff claimed during her testimony that she had been the victim of inappropriate behavior by Humphrey on July 5, 1996 (i.e., that he kissed and grabbed her as she departed his bus) and that defendant knew about the incident, [1063]*1063but did nothing about it.
Free access — add to your briefcase to read the full text and ask questions with AI
Carpinello, J.
Appeal from an order of the Supreme Court (Reilly, Jr., J.), entered June 5, 2002 in Schenectady County, which granted plaintiffs motion to set aside the verdict and ordered a new trial.
Plaintiff commenced this action against defendant claiming that it negligently retained John Humphrey, a bus driver who purportedly posed a known danger to its female patrons. Plaintiff alleged that Humphrey forcibly sodomized and sexu[1060]*1060ally abused her while the two were alone on a bus on the afternoon of October 15, 1996. The incident allegedly occurred in the middle of a public street in the City of Schenectady, Schenectady County, near a staging area for many of defendant’s buses. According to plaintiff, the alleged sodomy ended when another bus driver, en route to that staging area, pulled up beside Humphrey’s bus in an attempt to pass and sounded his horn. Plaintiff did not sue Humphrey for her emotional and psychological damages as a result of this alleged incident.
At trial, despite an evidentiary error prejudicial to defendant, the jury returned a verdict in its favor.1 Specifically, the first question on the verdict sheet asked, “Did the non-party, John Humphrey, engage in negligent or intentionally harmful conduct toward [plaintiff] on October 15, 1996?” The jury unanimously responded in the negative and, thus, reached no other issue. Supreme Court, however, granted an oral motion to set aside this verdict. Defendant appeals. Finding, as we do, that Supreme Court erred in granting plaintiffs motion, we reinstate the jury verdict.
The narrow issue before us is whether Supreme Court, by granting plaintiff’s motion to set aside the verdict, erred in determining that the jury failed to properly consider the evidence that was before it, which included the improperly admitted evidence of Humphrey’s guilty plea (see n 1, supra). While the resolution of a motion to set aside a jury verdict as against the weight of the evidence “involves an application of that professional judgment gleaned from the Judge’s background and experience as a student, practitioner and Judge” (Nicastro v Park, 113 AD2d 129, 135 [1985]), there must be a judicial finding that a contrary verdict could not have been reached upon any fair interpretation of the evidence (see Lolik v Big V Supermarkets, 86 NY2d 744, 746 [1995]; Maisonet v Kelly, 228 AD2d 780, 781 [1996]).
[1061]*1061Fundamentally, it was plaintiffs obligation to prove all of the elements of her negligence case against defendant, including the element of harm (see Detone v Bullit Courier Serv., 140 AD2d 278, 279 [1988], lv denied 73 NY2d 702 [1988]; see also Vanderhule v Berinstein, 285 App Div 290 [1954]; see generally 29 Am Jur Trials, Negligent Hiring of Employee § 10). As aptly stated in Detone v Bullit Courier Serv. (supra): “An employer may, of course, be required to answer in damages for the tort of an employee as against a third party when the employer has either hired or retained the employee with knowledge of the employee’s propensity for the sort of behavior which caused the injured party’s harm” (id. at 279 [emphasis added]). Here, defendant defended the negligence charge by disputing that plaintiff was indeed harmed by Humphrey (i.e., no sodomy took place) and by disputing that it had notice of any propensity on his part to sexually abuse women. To be sure, a significant portion of the evidence produced at the trial focused on Humphrey’s alleged misconduct with other women prior to October 15, 1996 and defendant’s knowledge of, and responses to, such incidents. We need not comment on the weight of such evidence since the first factual issue for jury resolution concerned whether Humphrey engaged in the conduct that allegedly harmed plaintiff on October 15, 1996. With respect to this threshold issue, plaintiffs version of events and overall credibility were challenged by defendant. In short, from the very beginning of the trial, the defense theory on this issue was simple and straightforward, namely, that Humphrey did not commit any act of forcible sodomy or sexual abuse against plaintiff that day and that plaintiff had conspired with at least one other woman, Arlene Sebast, to exaggerate and/or fabricate the alleged attack in order to obtain monetary compensation.
We now turn to the evidence at trial. According to plaintiff, after pulling the bus over near the staging area, Humphrey emerged from his seat, unzipped his pants and exposed himself. He then approached her, touched the outside of her sweater and forced her to sodomize him. Moreover, again according to plaintiff, during the course of same, another “bus pulled up * * * almost directly beside him, and it [sic] beeped its horn,” at which point Humphrey returned to his seat. Thus, plaintiff herself pinpoints the act of forcible sodomy as occurring prior to and contemporaneously with this second driver pulling up beside Humphrey’s bus and sounding his horn.
Plaintiffs own version of events, however, was directly contradicted by the driver of this second bus, Randy Fitch. Ac[1062]*1062cording to Fitch, as he pulled up to Humphrey’s bus and sounded his horn, he looked inside the bus. Fitch, who had a clear and unobstructed view inside the bus, observed plaintiff sitting alone with a normal but serious expression on her face. He saw no other person near her at the time and further recounted that, as soon as he sounded his horn, Humphrey immediately moved his bus. Notably, while plaintiff claimed that she was sitting directly behind the driver’s seat during the act of sodomy, Fitch placed her in an aisle-facing seat on the right side of the bus. Thus, Fitch’s testimony, which clearly conflicted with plaintiff’s testimony in significant respects, created a credibility dispute for the jury to resolve (see e.g. Pyptiuk v Kramer, 295 AD2d 768, 769-770 [2002]; Carter v Wemple, 267 AD2d 641, 642 [1999] ).2 This contradiction, however, was not the only factual and credibility contest during the trial.
Defendant also elicited facts demonstrating that plaintiff never initially told anyone, including defendant’s employees, her friends, the police or her treating therapist with whom she had a scheduled appointment on October 21, 1996, that Humphrey forced her to sodomize him. Rather, immediately after the alleged incident and up until October 23,1996, she reported only that Humphrey exposed himself and propositioned her for oral sex. Moreover, consistent with its theory of the case, defendant also put forth evidence that plaintiff had already consulted an attorney before the alleged incident with Humphrey that day. Specifically, Richard Vines, superintendent of defendant’s Schenectady operations, testified that he drove plaintiff home following the alleged incident, during which time she informed him that she had already contacted an attorney about Humphrey. With respect to this conversation, plaintiff testified that she did not “remember when [she] consulted with an attorney, but if [she] had [she] probably told [Vines] that.” She thereafter equivocated, claiming instead that she did not consult an attorney until after October 15, 1996.
Next, plaintiff claimed during her testimony that she had been the victim of inappropriate behavior by Humphrey on July 5, 1996 (i.e., that he kissed and grabbed her as she departed his bus) and that defendant knew about the incident, [1063]*1063but did nothing about it. Specifically, according to plaintiff, she reported this incident to Chuck Cohen, defendant’s director of transportation, on July 11, 1996 and then “follow [ed] up” with a faxed letter to him. No record of this complaint was found by defendant. Moreover, Cohen testified that he was on vacation the week of July 11, 1996, denied ever speaking with plaintiff about any incident with Humphrey and confirmed that defendant never received any alleged facsimile from her. Notably, no transmittal sheet was produced in support of the claim.
Plaintiffs credibility was also disputed on a number of other, albeit minor, grounds. For example, plaintiff initially denied having any contact with Sebast, another alleged victim of Humphrey, before October 15, 1996, even though Sebast clearly testified at trial that the two women had met during the summer of 1996 at which time they discussed Humphrey’s inappropriate behavior toward women and what they could do about it. Plaintiff later equivocated on this point, admitting that it was possible that she had met with Sebast before the subject incident. The jury further learned that plaintiff had previously been charged with filing a false incident and that, as of October 15, 1996, had been suffering from borderline personality disorder for some years for which she was receiving regular mental health counseling and treatment. To this end, the record reveals that plaintiff has had a variety of legal, relationship, housing and child care problems.
The standard for setting aside the jury verdict in favor of defendant as against the weight of the evidence requires a finding that the “trial evidence so preponderated in favor of plaintiff] ] that a contrary verdict could not have been reached upon any fair interpretation of that evidence” (Maisonet v Kelly, 228 AD2d 780, 781 [1996], supra). We cannot make such a determination here. Rather, noting that “defendant is entitled to the benefit of every favorable inference reasonably drawn from the facts adduced at trial” (Pyptiuk v Kramer, supra at 770; see Triggs v Kelly, 182 AD2d 963, 964 [1992]) and that this case required resolution of sharply disputed factual and witness credibility issues (see e.g. Bernstein v Red Apple Supermarkets, 227 AD2d 264, 265 [1996], lv dismissed 89 NY2d 961 [1997]; Durkin v Peluso, 184 AD2d 940, 942 [1992]; Martin v McLaughlin, 162 AD2d 181 [1990]; Pannetta v Ramo, 138 AD2d 686, 687 [1988]), we find that the jury was entitled to conclude that plaintiff’s story was unworthy of belief and reach the verdict that it did. In short, viewing all of the evidence before the jury and that portion of the jury charge which instructed that it may consider Humphrey’s guilty plea as some evidence [1064]*1064that the act charged was committed (but see n 1, supra), the verdict in favor of defendant was a fair reflection of the evidence to be accorded due deference (see Fontana v Kurian, 214 AD2d 832, 833 [1995], lv denied 86 NY2d 707 [1995]; Nicastro v Park, 113 AD2d 129 [1985], supra).
Mercure and Kane, JJ., concur.