Cartagena v. P & F Trucking, Inc.

73 A.D.2d 490, 426 N.Y.S.2d 486, 1980 N.Y. App. Div. LEXIS 10073

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 3, 1980
• Status: Published

Opinions

OPINION OF THE COURT

Silverman, J.

In this wrongful death action, defendants appeal from a judgment of the Trial Term of the Supreme Court in favor of plaintiff in the sum of $43,125.24 ($40,000 plus interest and costs). The jury had apportioned negligence and liability in the proportions of 60% to the corporate defendant, 20% to the individual defendant, and 20% to the decedent.

In our view, the judgment is based upon a verdict which is inconsistent with itself, and with the theory of the case as tried by the parties and as submitted by the court, in violation of the court’s instructions and the law, and is marred by indications of prejudice against the corporate defendant P & F Trucking, Inc.

The action is for wrongful death of a nine-year-old boy, killed when a truck, backing into a courtyard over a public sidewalk, struck the boy who was apparently riding a bicycle on the sidewalk behind the truck. The corporate defendant was the employer of defendant Rinaldi, the driver of the truck. In its main charge, the court made it clear that the negligence charged against the defendants was that of the driver only, defendant Rinaldi, and that "you will treat the two defendants as one. In other words, the verdict will be for or against these defendants as though they were just one.” The court also said that if the jury found defendant Rinaldi guilty of negligence, it should consider whether the decedent was guilty of negligence, and if the jury did find such negligence, "your verdict will be against the defendant and for the plaintiff, but plaintiffs damages must be reduced in that proportion which the contributory negligence of Antonio [decedent] bears to the total negligence, of Antonio and the defendant together, as one hundred per cent, which you find contributed to causing the occurrence.” In essence the jury was given the choice between a verdict for the defendants, and a verdict for the plaintiff either in the full amount of the damages or in an amount of damages reduced proportionately to the decedent’s negligence. Contrary to these instructions, the jury sent in a note to the court saying, "The jury finds negligence on the part of P. & F. Trucking Company. The vote was unanimous (six).”

As the court said, the jury was confused and some further elucidation or explanation was needed. Obvious questions left unanswered were (a) whether the jury had distinguished between the negligence of the corporate defendant and that of the driver, or was the jury merely stating its verdict incompletely; (b) had the jury found any negligence on the part of the decedent? Accordingly, the court, the next day asked the jury to report in what percentage the jury found P & F Trucking negligent, what percentage it found the defendant Rinaldi negligent, if at all, and what percentage it found the decedent negligent, if at all, and that the percentages of the three should add up to 100%. Under this instruction there was of course the chance that the jury might find a different percentage for the employer than for the driver. The defendant did not object at this point; but perhaps this was justified by the necessity of exploring whether, contrary to the court’s instructions, the jury had distinguished between the corporate employer and the driver. The court said: "It seems to me that my proposed charge is necessitated by the fact that the jury did not follow my instructions and bring in a verdict against the defendant. As I have just stated, I don’t know if it’s only negligence on the part of P. & F. Trucking Company.” And, indeed, it turned out that the jury was distinguishing between the corporate employer and the driver, the jury reporting, "The jury finds P. & F. Trucking Company sixty per cent negligent, Mr. Rinaldi twenty per cent negligent, and Antonio Cartagena twenty per cent negligent.”

The charge that the percentages should add up to 100% almost inevitably would produce an inconsistent verdict. Plaintiffs attorney properly objected to that. Defendant’s attorney remained silent. But the end result was a verdict so inconsistent with itself that we cannot give effect or meaning to it.

If, as the jury indicated by its percentage allocation, the decedant’s negligence was equal to that of the driver, then the gross amount of plaintiff’s damages should have been reduced by 50% rather than by 20%. In rendering its judgment, however, the court treated the case as if the jury had said that the infant’s negligence was only 20% of the total negligence, which, indeed, the jury had said. But the jury also said the driver was only 20% negligent. We cannot say that the jury’s verdict should be read as if it found the driver 80% negligent, in the face of the jury’s statement that it found him 20% negligent. Further, if the driver was only 20% negligent, then the decedent could not also be only 20% negligent.

The implication in the dissenting opinion that the direction to the jury to apportion negligence between the two defendants came after the jury’s finding that the decedent’s pro rata share of negligence was 20% is not sustained by the record. Contrary to the trial court’s instructions, the jury first found negligence on the part of the corporate defendant. The court then submitted to the jury the question of apportionment of percentage of negligence among the three parties, and the jury’s finding that the decedent was 20% negligent came at the same time and as part of the same finding that the corporate defendant was 60% negligent and the individual defendant was 20% negligent.

The ultimate allocation is inconsistent with the theory of the case, and the court’s original and proper instructions that the two defendants should be treated as one. Although on appeal plaintiff argues that the corporate employer was independently negligent in not having a second employee on the truck, there is nothing in the pleadings, bill of particulars, or the statement by the court to the jury of the contentions of the parties to support this theory. Even after the jury had rendered its first finding that the corporate defendant was negligent, plaintiff’s attorney was still urging that the court had instructed the jury to treat the case as if there were only one defendant, and that that was in fact what the jury had done. As it turned out he was wrong in his belief that that was what the jury had done.

Most disturbing is the indication of prejudice on the part of the jury against the corporate defendant. Despite the fact that there was no claim that the corporate defendant employer was liable otherwise than derivatively for the driver’s negligence, and despite the court’s instructions to treat the two defendants as one, and to bring in a verdict either for defendant, or for plaintiff for either the full amount or an amount reduced proportionately to decedent’s negligence, the jury at first merely reported that it found negligence on the part of the corporate defendant. Directed then to find the percentage of negligence of each party, the jury found the corporate defendant (whose liability was only derivative) 60% negligent, and the driver and decedent each only 20% negligent.

After this second stage of the verdict, the court submitted to the jury the question of the amount of damages, instructing the jury that it should find for the plaintiff in the total amount of the pecuniary damages suffered less the 20% apportionment to plaintiff for comparative negligence. The jury then asked what was the amount that the plaintiff was asking. The answer was that the plaintiff in his complaint was asking for $100,000, but that the jury should reduce whatever the total amount of plaintiff’s pecuniary damages was by 20%. The jury brought in a verdict for the plaintiff for $80,000. The court reduced this verdict to $40,000.

A judgment should not be allowed to stand based on a verdict arrived at with such obvious disregard of the court’s instructions, of the law, and of the theory of the case, and with such disturbing indications of prejudice.

The judgment of the Supreme Court, Bronx County (Kent, J.), entered June 18, 1979, should be reversed, on the law and the facts, and a new trial ordered, with costs to abide the event.