Tessler v. Union Free School District No. 6

43 A.D.2d 867, 351 N.Y.S.2d 451, 1974 N.Y. App. Div. LEXIS 5878

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 28, 1974
• Status: Published

Opinion

In a negligence action to recover damages for personal injuries, etc., plaintiffs appeal from a judgment of the Supreme Court, Suffolk County, entered October 19,1972, in favor of defendants on the issue of liability, on a jury verdict, after trial on that issue only. Judgment reversed, on the law, and new trial granted, with costs to abide the event. The questions of fact have not been considered on this appeal. Defense counsel, during his' opening and summation to the jury and at various points during the trial, persistently attempted to make the trial into a trial of the defendant teacher’s over-all qualifications and to make it appear that the teacher’s reputation and professional life were being assailed and were in danger should plaintiffs prevail. Despite objection by plaintiffs’ attorney, the trial court failed to instruct defendants’ counsel to cease such activity or to charge the jury that such matters were unrelated to the case. Actually the only issue related to the alleged negligence of the defendant teacher on one occasion. In light of this, we cannot be certain that the jury’s verdict was not influenced by the improper issues interjected by defendants’ counsel and a new trial should be held (see Nicholas v. Rosenthal, 283 App. Div. 9,13). In addition, the trial court refused to charge, when requested, that nitric acid was an inherently dangerous substance. Hopkins, Acting P. J., Shapiro, Christ, Brennan and Benjamin, JJ., concur.