Inglut v. Consolidated Rail Corp.

Appellate Division of the Supreme Court of New York

Inglut v. Consolidated Rail Corp.

185 A.D.2d 614, 586 N.Y.S.2d 41, 1992 N.Y. App. Div. LEXIS 9128

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJuly 14, 1992

StatusPublished

This text of 185 A.D.2d 614 (Inglut v. Consolidated Rail Corp.) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Inglut v. Consolidated Rail Corp., 185 A.D.2d 614, 586 N.Y.S.2d 41, 1992 N.Y. App. Div. LEXIS 9128 (N.Y. Ct. App. 1992).

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Opinion

Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in submitting the issue of plaintiffs contributory negligence to the jury in this action brought pursuant to the Federal Employer’s Liability Act. The theory of contributory negligence presented was neither pled nor proven at trial. Thus, plaintiff is entitled to the full amount of damages awarded by the jury without any offset for his contributory negligence.

The jury’s failure to compensate plaintiff for future pain and suffering is not against the weight of the evidence. The record discloses that in the seven years since the cancerous tumor on plaintiffs bladder was diagnosed, there has been no recurrence of the condition. The jury also heard expert testimony that the chance of such a tumor recurring is greatly reduced after an individual has been cancer-free for that long. Therefore, it cannot be said that the jury’s determination was not based on a fair interpretation of the evidence (see, Crumb v Fallon, 156 AD2d 949; Kuncio v Millard Fillmore Hosp., 117 AD2d 975, Iv denied 68 NY2d 608). (Appeal from Order and Judgment of Supreme Court, Erie County, Wolf, Jr., J.—Negligence.) Present—Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.

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Order and judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in submitting the issue of plaintiffs contributory negligence to the jury in this action brought pursuant to the Federal Employer’s Liability Act. The theory of contributory negligence presented was neither pled nor proven at trial. Thus, plaintiff is entitled to the full amount of damages awarded by the jury without any offset for his contributory negligence.

The jury’s failure to compensate plaintiff for future pain and suffering is not against the weight of the evidence. The record discloses that in the seven years since the cancerous tumor on plaintiffs bladder was diagnosed, there has been no recurrence of the condition. The jury also heard expert testimony that the chance of such a tumor recurring is greatly reduced after an individual has been cancer-free for that long. Therefore, it cannot be said that the jury’s determination was not based on a fair interpretation of the evidence (see, Crumb v Fallon, 156 AD2d 949; Kuncio v Millard Fillmore Hosp., 117 AD2d 975, Iv denied 68 NY2d 608). (Appeal from Order and Judgment of Supreme Court, Erie County, Wolf, Jr., J.—Negligence.) Present—Denman, P. J., Boomer, Pine, Balio and Fallon, JJ.

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Bluebook (online)

185 A.D.2d 614, 586 N.Y.S.2d 41, 1992 N.Y. App. Div. LEXIS 9128, Counsel Stack Legal Research, https://law.counselstack.com/opinion/inglut-v-consolidated-rail-corp-nyappdiv-1992.

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