Silverstein v. Harmonie Club

173 A.D.2d 378

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 28, 1991
• Status: Published

Opinions

Judgment, Supreme Court, New York County (Anthony F. Shaheen, J.), entered March 23, 1990, which, upon a jury verdict finding defendant The Harmonie Club of the City of New York 60% negligent, plaintiff Linda Silverstein 40% negligent, and fixing plaintiff Linda Silverstein’s damages in the amount of $100,000, denied plaintiff Walter Silverstein any recovery for loss of consortium or services, and awarded judgment in favor of plaintiff Linda Silverstein against defendant in the sum of $60,000, modified, on the law and the facts, and the matter remanded for a new trial solely on the issue of apportionment of fault and otherwise affirmed, without costs and disbursements unless, within twenty days after service of a copy of this court’s decision and order upon counsel for the respective parties defendants shall stipulate to the entry of an amended judgment in the sum of $90,000 with an amended recital that plaintiff Linda Silver-stein’s comparative fault is fixed at 10%, in which event the judgment, as so amended, is affirmed without costs.

While attending a wedding party and dancing with her husband at defendant’s premises, Mrs. Silverstein was caused to fall to the floor and to sustain a severe fracture to her left wrist when her heel became caught in a sliding door track that defendant’s employees had filled with rubber tubing and covered with a gray duct tape. Defendant does not challenge the jury’s findings with respect to its own negligence nor in any other respect.

Plaintiffs, who have appealed, assail the verdict insofar as it (i) found any negligence on her part to be a proximate cause of the accident; (ii) failed to make any award to Mr. Silver-stein for consortium loss; and (iii) awarded gross damages in the sum of $100,000 which are alleged to be inadequate.

By failing to object to the submission of Mrs. Silverstein’s comparative fault as an issue for determination by the jury, plaintiffs have not preserved the contention they pursue before us that she was free from any negligence as a matter of law (CPLR 4110-b). Our review of the record discloses a "valid line of reasoning and permissible inferences” (Cohen v Hallmark Cards, 45 NY2d 493, 499) to support a finding of some negligence on Mrs. Silverstein’s part. However, we further conclude that the jury’s apportionment of 40% fault to Mrs. Silverstein is contrary to the weight of the evidence (CPLR 4404 [a]), and that a fair assessment of the evidence would support a finding not to exceed 10% (see, Schildkraut v Eagle Lines, 126 AD2d 480). This objection plaintiffs did preserve by timely post verdict application.

We do not think the record supports the conclusion, reiterated in the dissent of the Presiding Justice, that the floor defect which caused plaintiff to fall was "obvious”. The basic hazard here consisted of a one-half inch deep rectangular groove designed to accommodate sliding doors which were commonly utilized to partition the single room used for the party into separate chambers on other occasions. The makeshift contrivance adopted by the defendant Club to neutralize the depression on the date of plaintiff’s accident was to insert a rubbery electric cable wire only one-third inch in diameter into the rectangular half-inch crevice, over which gray colored masking tape was affixed. One need not be a student of solid geometry to envisage the trap created by the gap between the soft cylindrical mass of the cable wire and the unyielding side of the groove when a woman’s heel punctured the masking tape, entered the space between the rubber and the wood, and became wedged therein. Far from being "obvious”, the danger was effectively camouflaged by the aptly described "masking” tape. This effort by defendant at concealment, rather than correction, of the defect, brings this situation close to the hidden third base depression in Lamphear v State of New York (91 AD2d 791), which, when it caused injury to a sliding softball player, was held to give rise to liability without any diminution by way of plaintiff’s comparative fault for assumption of the normal risks of an athletic contest.

We perceive no persuasive reason to disturb the verdict in any other respect. On the evidence before it the jury was free to conclude that Mr. Silverstein failed to prove any economically measurable loss of services (cf., Hagler v Consolidated Edison Co., 99 AD2d 725). We also affirm the gross damage award to Mrs. Silverstein as adequate, given that the source of her pain, carpal tunnel syndrome, may be corrected by a relatively simple surgical procedure which she has declined to pursue (see, Schare v Welsbach Elec. Corp., 138 AD2d 477). Concur—Sullivan and Wallach, JJ. Kupferman, J., concurs in the writing of the majority in a separate memorandum; Murphy, P. J., and Carro, J., dissent in part in a memorandum by Murphy, P. J., as follows: