McDonald v Colonial Steel Corp.

[*1] McDonald v Colonial Steel Corp. 2006 NY Slip Op 52702(U) [25 Misc 3d 1206] Decided on November 21, 2006 Supreme Court, Kings County Partnow, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on November 21, 2006
Supreme Court, Kings County

Errol McDonald et ano, Plaintiffs,

against

Colonial Steel Corp., et al., Defendants.



50661/01

Mark Partnow, J.

Upon the foregoing papers, plaintiffs move for an order, pursuant to CPLR 4406 and 4404(a): (1) setting aside the jury's verdict finding that plaintiff Errol McDonald (McDonald) was negligent and that his negligence was a substantial factor in causing his injuries, and granting plaintiffs judgment for the full amount of the damages awarded, on the ground that said verdict was irrational and based upon insufficient proof; or, in the alternative, (2) setting aside said verdict and ordering a new trial as to comparative negligence and apportionment on the ground that said verdict was against the weight of the evidence; or, in the alternative, (3) setting aside the apportionment of fault as against the weight of the evidence and ordering a new trial, unless defendant Colonial Steel Corp. (Colonial) stipulates to accept an increased percentage of fault such as may be determined to be appropriate by the court.

BACKGROUND

On June 18, 2001, Errol McDonald was employed by defendant Jaya Consulting, Inc. (Jaya) as a laborer. Jaya had been hired to perform renovations at a building owned by defendant Six AB LLC (Six AB) located at 539-541 East 6th Street in Manhattan. Prior to that date, defendant Taman Management Corp. (Taman) placed an order with Colonial for twenty pieces of steel angle iron, or steel beams, which Colonial delivered, curbside, at the premises on June 18, 2001.

At about 1:30 p.m., McDonald's supervisor, Kevin Goh (Goh), directed him and two other laborers to unload the steel beams from Colonial's flatbed truck, which was parked parallel to the sidewalk. The passenger side of the flatbed area of the truck was open and there were approximately 20 beams lying on the flatbed, parallel to its length. Bundles of three to four beams were tied together with wire. The beams rested on three to four wooden railway ties, two of which were secured to the bed of the truck, which were placed [*2]across the width of the truck, perpendicular to the steel beams. Miguel Acosta (Acosta), Colonial's driver, gave the men clippers to cut the wire ties that bound the beams together. The three men cut the ties and used crow bars, also supplied by Acosta, to lift each beam and push it onto the sidewalk. As plaintiff and his coworkers pried the pieces of steel off the edge of the truck onto the sidewalk, two of the railroad ties shifted towards, and then slightly over, the edge of the truck. When the workers pried the last piece of angle iron off the edge, the railroad tie nearest to plaintiff flipped up, causing injury to him.

Plaintiffs initially commenced a lawsuit against Colonial, Taman, and Six AB. In turn, Six AB impleaded Jaya, and Colonial impleaded Taman. Plaintiffs' complaint against Six AB, and Six AB's third-party complaint against Jaya, were both dismissed on summary judgment motions.

TRIAL TESTIMONY

At trial, McDonald testified that the team with which he was working was given a cutter by the driver (Michael Acosta, Colonial's employee) for removal of the bands that secured the steel. A crowbar was then used to push the angle irons up. Although there was testimony that Acosta instructed the workers to stand on the railroad ties to prevent them from movement, McDonald testified that he did not stand on the tie, and as the last bundle was being moved, he was not watching the board which shifted.

Arnold Cohen (Cohen), the owner of Colonial, testified that industry practice required the recipients of the steel delivered to provide the means to remove it, and that manual removal of the angle irons could cause shifting of the load. He stated that standing on the ties, if properly done, could prevent shifting. Although Cohen further testified that Acosta could evaluate the safety practices being employed by the recipient, and based thereon, decide whether or not to permit the recipient to unload the steel, Acosta testified that he, in fact, lacked such authority.

Both plaintiffs and Colonial introduced testimony of expert witnesses. Plaintiffs' expert, Anthony Storace (Storace), was an engineer specializing in biomechanics, which he defined as "the application of engineering principles to the functioning of the human body." Storace testified that Colonial's method of delivering steel was unsafe, particularly its practice of resting the steel on three railroad ties, two of which were unsecured. He testified that all three ties could have and should have been secured to the flatbed. However, Storace acknowledged that he had never before testified in a case involving the loading and unloading of a steel delivery truck, and that he had never encountered the hazard that was the subject of the case at bar.

Colonial's expert witness, Philip Buttacavoli (Buttacavoli) was a career trucking and transportation industry professional. His background included the ownership and management of trucking companies, as well as first-hand experience in the loading and unloading of flatbed trucks similar to Colonial's. He testified that he had served as safety director for a truck driver's professional association and taught safety at trucking schools, focusing on safe loading and unloading techniques. Disagreeing with Storace's opinions, Buttacavoli testified that securing all three railroad ties (known as "dunnage") would be dangerous and impractical, since the machinery comprising the truck's drivetrain would burn any securing straps off, and such a method would require the driver, whose job it was to driver the truck, to crawl underneath the truck. He further testified that using pins to [*3]secure the dunnage, as advocated by Storace, would prevent the driver from adjusting the weight distribution of the load, which is necessary to insure a safe delivery.

Following the conclusion of testimony, Taman successfully moved for dismissal. Before summations, this court instructed the jury to disregard all arguments addressing Taman and Jaya, and directed Colonial's counsel to refrain from referring to said parties. Colonial's counsel stated that he would argue to the jury that Colonial's obligation was to deliver the steel to the site, and that it did so. As to proximate cause, counsel indicated that without placing blame on any other entity, he intended to refer to the proper method of unloading the steel.

Plaintiffs argued that Colonial was negligent because it knew that the railroad ties could shift over the side of the truck, thereby flipping up and causing injury, and that the two unsecured railroad ties should have been secured to the truck in order to prevent them from shifting. Colonial, in turn, argued that as a deliverer, it had acted reasonably, and blamed the (unidentified) unloaders, since custom and practice in the industry required the recipient to provide the proper method of unloading, and such proper practice would have involved the use of a lifting device, such as a forklift, rather than prying.

At the conclusion of the trial, the jury found that Colonial was negligent, and awarded damages to McDonald in the amount of $900,000, and to Verline McDonald, on her derivative cause of action, in the amount of $150,000. It apportioned Colonial's share of liability at 15%. It further found that Errol McDonald was negligent, and apportioned plaintiffs' share at 85%.

DISCUSSION

As is relevant here, CPLR 4404(a) states:

"Motion after trial where jury required. After a trial of a cause of action or issue triable of right by a jury, upon the motion of any party or on its own initiative, the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence."

Although a court has broad discretionary authority to set aside a jury verdict, courts are cautioned to exercise such discretion sparingly, so as to avoid usurping the jury's function and unjustly depriving the successful litigant of the benefits of a favorable verdict (Nicastro v Park, 113 AD2d 129 [1985]; see also Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]["(a) trial court's grant of a . . . motion for judgment as a matter of law is appropriate where the trial court finds that, upon the evidence presented, there is no rational process by which the fact trier could base a finding in favor of the nonmoving party"]; Pickering v New York City Transit Authority, 299 AD2d 402, 403 [2002]; Schray v Amerada Hess Corp., 297 AD2d 339 [2002]; Gallagher v Sosa, 293 AD2d 710 [2002]; Brown v Taylor, 221 AD2d 208 [1995]).

In order to find that a jury verdict is not supported by sufficient evidence, the court must conclude "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented a trial" (Cohen v Hallmark Cards, Inc., 45 NY2d 493, 499 [1978]; see also Kiley v Almar, 1 AD3d 570 [2003]; Schray, 297 AD2d at 339; Sam v Zelman, 252 [*4]AD2d 550 [1998]). To set aside the verdict as against the weight of the evidence, the court must determine "whether the jury could have reached their conclusion upon any fair interpretation of the evidence'" (Kennedy v New York City Health & Hospitals Corp., 300 AD2d 146, 147, quoting Bernstein v Red Apple Supermarkets, 227 AD2d 264, 265 [1996] [citations omitted], lv dismissed 89 NY2d 961 [1997]; Revill v Boston Post Rd. Dev., 293 AD2d 138, 142 [2002], appeal dismissed, 98 NY2d 725 [2002]; Jamal v New York City Health & Hospitals Corp.., 280 AD2d 421, 422 [2001]; accord Roseingrave v Massapequa Gen. Hosp., 298 AD2d 377 [2002]; Cicalese v Caruana, 274 AD2d 540 [2000], lv denied 97 NY2d 611 [2002]). In making its determination, the court must evaluate the evidence in the record in the light most favorable to the nonmoving party (see Hanley v St. Charles Hosp., 307 AD2d 274 [2003]; Parkin v Cornell Univ., 78 NY2d 523 [1991]; see also Nicastro, 113 AD2d at 132)..

In a negligence action such as this, particular deference should be given to a jury's determination, where the verdict is (at least in part) in favor of the defendant (see Accetta v City of New York, 287 AD2d 527 [2001]; Gray v McParland, 255 AD2d 359, 360 [1998]; see also Scicutella v Town of Hempstead, 287 AD2d 611 [2001]), and even where a verdict is in favor of a defendant, it is well settled that such a verdict should not be set aside unless the evidence preponderates so heavily in the plaintiff's favor that the verdict could not have been reached on any fair interpretation of that evidence (see Lolik v Big V Supermarkets, Inc., 86 NY2d 744, 746 [1995]; see generally Feldman v South Huntington Union Free School District, 290 AD2d 529 [2002]; Wilcox v Morrow, 226 AD2d 1077 [1996]; Martin v Seaman, 184 AD2d 996 [1992]).

Finally, it is equally well settled that the jury is in the best position to review the witnesses' testimony and assess their credibility (see Pedroza v City of New York, 289 AD2d 315, 315 [2001], citing Teneriello v Travelers Cos., 264 AD2d 772 [1999]; see also Romero v Karavidas, 282 AD2d 665 [2001] [according the jurors their proper deference as finders of the facts and assessors of the credibility of witnesses, the verdict was supported by a fair interpretation of the evidence]). With specific regard to the testimony of expert witnesses, it also must be noted that:

"A jury is not required to accept an expert's opinion to the exclusion of the facts and circumstances disclosed by other testimony and/or the facts disclosed on cross-examination (see, Herring v Hayes, 135 AD2d 684). Indeed, a jury is at liberty to reject an expert's opinion if it finds the facts to be different from those which formed the basis for the opinion or if, after careful consideration of all the evidence in the case, it disagrees with the opinion (see, Herring v Hayes, supra; Ensign v New York Life Ins. Co., 204 App Div 690)."

(Zapata v Dagostino, 265 AD2d 324, 325 [1999]; accord Bobek v Crystal, 291 AD2d 521 [2002] [any conflict between the testimony of the witnesses and the weight to be accorded the evidence was for the jury to resolve]; Royal v Booth Mem. Med. Ctr., 270 AD2d 243 [2000] [although there was conflicting testimony as to the cause of the plaintiff's premature birth and the injuries he sustained, the jury was entitled to give credence to the opinion of the plaintiff's experts, rather than the conclusory opinions offered by the defendants' experts]; see also Zygmunt v Berkowitz, 301 AD2d 593 [2003][the conflict in the testimony [*5]of the expert witnesses presented a credibility issue for the jury to resolve]; David v EZ Rate Rental, 298 AD2d 353 [2002] [where the jury was presented with conflicting opinions of medical experts, the court would not disturb the jury's determination with respect to the credibility of those experts]; Thomas v Brookdale Hosp. Med. Ctr., 287 AD2d 448 [2001] [conflicts between the testimony of the plaintiff's expert witness and the defendants' expert witnesses presented a credibility issue for the jury to resolve]).

Upon its review of the record, the court cannot agree with plaintiff's argument that the jury's verdict was irrational.

Plaintiffs refer to their pre-trial motion in limine, wherein they sought to exclude reference to any negligence of McDonald's employer as irrelevant and prejudicial, as well as to this court's ruling, over plaintiffs' objection, ordering that Colonial's cross claim against Taman was to continue. Plaintiffs contend that although the court, after dismissing the complaint against Taman, instructed the jury to disregard all testimony regarding the negligence of Taman and Jaya, Colonial's summation undermined that ruling, and that the verdict suggests that the jury was confused by the absence of Jaya from the trial and the dismissal of all charges against Taman at the conclusion of the case, and misunderstood the court's instructions concerning allocation of fault. However, plaintiffs' contention is unavailing, since the record is devoid of any evidence that the jury was in any way confused. Indeed, apart from requesting a read-back of the testimony of Colonial's expert regarding the industry standard for unloading shipments of steel, the jury did not ask any other questions or indicate confusion, and plaintiffs' contentions in this regard fail to rise above speculation (see Grant v Endy, 167 AD2d 807 [1990]).

Plaintiffs further argue that there was insufficient evidence to support the jury's finding of comparative negligence and apportionment of liability, and that such finding was irrational. In this regard, plaintiffs argue that the jury appeared to focus on McDonald's failure to stand on the railroad tie, and asserts that neither expert supported the conclusion that stepping on the wood was a good practice or that it would have prevented the accident from occurring. Rather, plaintiffs maintain that Acosta was the only witness who unequivocally testified that stepping on the wood would have prevented the accident, and assert that his testimony was irrational and incapable of supporting a finding of comparative negligence.

Plaintiffs' contentions in this regard are devoid of merit. As demonstrated by the testimony, McDonald unloaded the steel himself, without any input or direct supervision from Colonial, and although he overheard Acosta advise his co-worker to stand on the beam, McDonald did not do so. Moreover, Colonial had no supervisory powers or obligation to McDonald (see Severino v Schuyler Meadows Club Inc., 225 AD2d 954 [1996]), and Cohen's unrefuted testimony, supported by that of Buttacavoli as to industry practice, entitled the jury to find that Colonial had no duty to provide equipment to unload the steel beams. Thus, the jury could rationally focus on the manner in which the steel was unloaded by McDonald, and was entitled to find that his failure to step on the wood to prevent shifting was a proximate cause of the accident to the extent indicated in its verdict (see Morgan v New York Transit Authority, 24 AD3d 639 [2005]; Evers v Carroll, 17 AD3d 629, 631 [2005]).

Moreover, the jury's verdict amply suggests that it found the testimony of Colonial's expert more persuasive than that of plaintiffs' expert. As noted, the jury's resolution of [*6]conflicting expert testimony is entitled to great weight, as it is the jury that had the opportunity to observe and hear the experts (see Soto v New York City Tr. Auth., 19 AD3d 579 [2005], affd 6 NY3d 487 [2006]; Angrand v Stern, 8 AD3d 218 [2004]). Indeed, such a result, rather than deviating from the applicable legal standard as set forth, reflects that the jury, in evaluating the contrasting expert testimony, heeded the court's instructions, as set forth in Pattern Jury Instruction 1:90, that

"[y]ou may reject the expert's opinion if you find the facts to be

different from those which form the basis for the opinion. You

may also reject the opinion, if after careful consideration of all

the evidence in the case, expert and otherwise, you disagree with

the opinion.

In other words, you are not required to accept an expert's opinion

to the exclusion of the facts and circumstances disclosed by their

testimony."

(see Cooper-Frye v Kolket, 245 AD2d 846 [1997]; cf. Calderon v Irani, 296 AD2d 778 [2002]). Thus, contrary to the plaintiffs' arguments, the jury's verdict was supported by legally sufficient evidence (see Soto, 19 AD3d at 581).

In view of the foregoing, the plaintiffs' motion is denied.

This constitutes the decision and order of the court.

E N T E R,

J. S. C.