Duccilli v. Belko Steel Corp.

163 A.D.2d 89, 558 N.Y.S.2d 923, 1990 N.Y. App. Div. LEXIS 8320

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: July 10, 1990
• Status: Published

Opinions

Order Supreme Court, Bronx County (Alan Saks, J.), entered on or about November 10, 1988, which granted plaintiffs motion to set aside a jury’s verdict in favor of defendants on the issue of negligence and directed a new trial limited to the issues of negligence, proximate cause, culpable conduct and damages, reversed, on the law, the motion denied, and the complaint dismissed, without costs.

Plaintiff, a police officer, was allegedly injured when he attempted to remove wire which had fallen from defendants’ truck and was blocking traffic. The wire had been placed on the truck and allegedly secured by the defendant. It fell off while being delivered to another location and caused traffic to be blocked. Even though the driver of defendant’s truck called his office to help in clearing the roadway, the police officer, noting the blocking of traffic, attempted to move the wire. In doing so, he allegedly injured his back.

After a trial, the jury was asked to answer several questions.

The first three questions concerned whether the plaintiff had met the threshold for an action on pain and suffering. The questions, paraphrased, were as follows: (1) Whether the plaintiff had suffered a permanent consequential limitation to the use of a body organ or member? The answer was no. (2) Whether the plaintiff had sustained a significant limitation to the use of a body function or system. The answer was yes. (3) Whether the injury or impairment had prevented plaintiff from performing substantially all of his material activities for no less than 90 days following the accident. The answer was no.

The fourth question asked whether the defendants were negligent and the fifth asked whether if the defendants were negligent, the negligence was a proximate cause of the accident. The answer to the fourth question was no and thus the jury did not reach the fifth question.

The trial court set aside the jury’s verdict of no on the fourth question and ordered a new trial directed to that issue and related issues.

A jury’s verdict should be set aside only if it could not have reached its verdict on any fair interpretation of the evidence. (Nicastro v Park, 113 AD2d 129 [1985]; Delgado v Board of Educ., 65 AD2d 547 [1978], affd 48 NY2d 643 [1979].) Here, in light of the testimony, the jury could have concluded that the wire had been properly secured.

Moreover, since the plaintiff was acting in the course of his employment, public policy precludes his recovery both from his own employer and from a private defendant. (Santangelo v State of New York, 71 NY2d 393 [1988]; Pascarella v City of New York, 146 AD2d 61 [1st Dept 1989]; Wynne v Tullman, 151 AD2d 476; O’Connor v O’Grady, 143 AD2d 738 [2d Dept 1988].) Plaintiff’s efforts to remove wire from the street were in furtherance of his duties to see that traffic flowed freely. Concur—Carro, J. P., Wallach and Smith, JJ.