Raia v Berkeley Coop. Towers Section II Corp.

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Raia v Berkeley Coop. Towers Section II Corp. 2014 NY Slip Op 33851(U) December 11, 2014 Supreme Court, Kings County Docket Number: 2760/2010 Judge: Larry D. Martin Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] Pogo 12 of 412 • At an IAS Tenn, Part 41 of the Supreme Court of the State ofNew York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 11 lh day of December, 2014. PRESENT: HON. LARRYD. MARTIN, Justice. ------------------------------------X CHRISTOPHER ~IA and IRENE RAIA, Plaintiffs, - against- DECISION AND ORDER Index No. 2-7 bO /zo \o BERKELEY COOPERATIVE TOWERS SECTION II CORP., Defendant. ------------------------------------X The following papers numbered 1 to 11 read herein: Pe,pers Numbered Notice of Motion and Affidavits (Affirmations) Annexed._ _ __ Opposing/Reply Affidavits (Affinnations)IMemoranda _ _ __ 1-2 3.4. Trial Transcript.._______________________________ Plaintiffs' Posttrial Memorandum of Law ____________ s. 6. 7. 8 10 Defendant's Supplemental Memorandum of Law----------- At the close of evidence in the liability phase of the bifurcated trial of this action brought by plaintiff Christopher Raia and his wife suing derivatively (hereafter, collectively, plaintiff) against defendant Berkeley Cooperative Towers Section II Corp. (hereafter, defendant), the Court reserved decision on his motion under CPLR 4401 for judgment as a matter oflaw on the issue of liability on his Labor Law§ 240 (1) claim. Concurrently, the Court also reserved decision on defendant's motion under CPLR 4401 for judgment as a matter oflaw dismissing, inter alia, plaintiff's Labor Law§ 240 (1) claim. The jury found, inter alia, for defendant and against plaintiff on his Labor Law § 240 (1) claim. Post-trial, plaintiff moved under CPLR 4404 to set aside the verdict (Seq. No. 6). [* 2] Pago 27W2010 °'°"'did 516115 13ol~12 • • The Accident' Twin connected l?<>ilers (#I and #2) located side by side in an enclosed boiler room were providing domestic hot water to defendant's two cooperative apartment buildings at 5230-5240 39111 Drive in Queens (hereafter, the boiler room). Either boiler, when working alone, was sufficient to scrvic~ both buildings. When boiler #2 sprang a leak in Dec. 2009 (hereafter, the leaking boiler), defendant called in plaintiff's employer, which dispatched to the boiler room a pair of plumbers - plaintiff and his coworker Charles Jordan (hereafter, Jordan)- to repair it. When plaintiff and Jordan arrived at the boiler room on Dec. 18, 2009, defendant had already shut off the leaking boiler, while the other boiler (boiler# I) continued working (hereafter, the running boiler). The repair work was performed outside, and on top of, the boilers. The top of the boilers was about 15 feet up from the boiler room's floor. The space above the top ofthe boilers was obstructed by horizontal and vertical pipes and valves. The only wiobstructed space was a flat ledge without railings in one comer of the top of the boilers (hereafter, the ledge). To climb up to the ledge, the plumbers used defendant's ladder. While standing on the ledge and on the ladder, they repaired the leaking boiler. After they left for the day, however, defendant tested the leaking boiler and found that it was still leaking. In Jan. 2010, plaintiff's employer re-dispatched to the boiler room the same two plumbers, plaintiff ~d Jordan, with Dean Murray (hereafter, Murray}, who was Jordan's brother, having been added as an assistant. When the repair team arrived at the boiler room on Jan. 14, 2010, the leaking boiler remained off, while the other boiler was working. The repair team again used defendant's ladder to climb up to the ledge. The repair was proceeding without an incident until Murray, while standing either on the ledge or on the ladder or both, inadvertently bumped into one or more of the shut-off valves on the running 1 • The: facts are recited in a light mo5t favorable to defendant (.m1Szczerbialc" Pilat, 90 NY2d 553, 556 (1997] ["ln considering the motion for judgment as a matter of law, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant."D. 2 Pmted 4/'17.017 [* 3] 27tl0/2010 Order did 516;15 Page 14 0! 412 • • boiler. 2 Hot water and steam burst out of the running boiler and scalded Murray. As he was trying to escape by way of the ladder, he lost his footing and fell down. Plaintiff, who was then standing on the ledge, was hit with steam and hot water. He lost his balance, fell backwards off the ledge, and ultimately landed on the boiler room's concrete floor about 15 feet below the ledge. Meanwhile, Jordan, who was standing on the lower portion of the ladder, escaped unbanned. Jordan retrieved a pole with a hook and shut off the valves. The Lawsuit Plaintiff brought this action against defendant for the injuries he sustained in the accident. His claims were based on, inter alia, Labor Law § 240 (1 ), Labor Law § 200, and common-law negligence. The trial was bifurcated, with liability being tried first. Plaintiff's case-in-chief consisted of ( 1) trial testimony ofplaintiff and Murray, (2) a reading to the jury of the pretrial deposition testimony of Jordan who was unavailable for trial, (3) trial testimony of defendant's superintendent, and (4) trial testimony of plaintiff's engineering expert Joseph Zirunan, P.E., and one other expert. Defendant's case-in-chief was limited to a reading to the jury of excerpts from the pretrial deposition testimony of plaintiff and Murray. At the close of evidence, plaintiff and defendant each moved for judgment as a matter of law .on, inter alia, the Labor Law § 240 ( 1) claim. The Court reserved decision on both motions and submitted all of plaintiff's claims to the jury.1 The jury rendered a mixed verdict. As to plaintiff's Labor Law§ 240 (1) claim, the jury found (in response to interrogatories #1, #2, and #3, respectively) that he was engaged in repair (rather than in routine maintenance), that defendant failed to provide him with an i. Each boiler had three parallel shut-off(or ball) valves located on the pipes extending above its ledge. Each shut-offvalve operated u a lever through an arc of90 degrees. In the open position, the lever curved 90 degrees to fonn a handle that was perpendicular to the ann ofthe operating lever. In the closed position, the lever formed a handle that was fully aligned with the um of the operating lever. If the lever was in between these two positions, the valve wu partially open. Thus, ifa shut-off valve was even partially open, a running boiler was capable ofemitting hot water and steam. l . ln the course of trial, the Court ruled that Labor Law§ 241 (6), which plaintiff also pleaded, did not apply to the accident (Trial Transcript, page 439, lines IS-18; .sea Bubt111011 v New York Hosp. Med Ctr. ofQue111m, 43 AD3d 845, 846 [2d Dept 2007] ["the protections of Labor Law 241 (6) do not apply to the simple repair of an appliance (a boiler} unrelated to construction, demolition, or excavation")). Post-trial. plaintlffmoved, inter alia, to reinstate his Labor Law§ 241 (6) claim and, on reinstatement, finding that defendant violated Labor Law§ 241 (6) as a matter oflaw. f 3 Ponied 4/<l/2017 [* 4] Pago 15ol412 2760/20100rd0r dtd 516115 • • adequate safety device, but that such failure was not a substantial factor in causing the accident. Hence, the jury found for defendant and against plaintiff on his Labor Law § 240 ( l) claim. As to plaintiff's Labor Law § 200 claim, the jury found (in response to interrogatory #4) that the workplace was not constructed, equipped, arranged, operated, and conducted as to provide reasonable and adequate protection to plaintiff's life, health, and safety. As to this claim, the jury further found (in response to interrogatory #5) that defendant's failure to provide such reasonable and adequate protection to plaintiff's life, health, and safety was a substantial factor in causing the accident. Thus, the jury found for .Plaintiff and against defendant on his Labor Law § 200 claim. Lastly, as to plaintiffs common-law negligence claim, the jury found (in response to interrogatories #6 and #7, respectively) that defendant was neglig~t in not shutting off the running boiler and that defendant's negligent failure to tum it off was a substantial factor in c.ausing the accident. Hence, the jury also found for plaintiff and against defendant on his common-law negligence claim. On the issue of comparative negligence, the jury found (in response to · interrogatories #8 and #9, respectively) that plaintiff was negligent but that his negligence was not a substantial factor in causing the accident. The jury further found (in response to interrogatories #10 and #11, respectively) that Murray was negligent and that Murray's negligence was a substantial factor in causing the accident. In apportioning the fault for the accident, the jury (in response to interrogatory# 12) assigned 10% liability to plaintiff, 40% to Murray, and 50% to defendant. After reviewing the trial record, trial memoranda, and plaintiff's post-trial motion, the Court requested that the parties brief the dispositive, two-part issue of(l) whether the chain 4 Prin&ed 41"2017 [* 5] Pl~ 2760/2010 Order did W 15 • • · of events started with Murray's act of tripping the valve(s), and (2) whether Murray's act of tripping the valve(s) was a superseding cause of plaintiffs accident. The Court received memoranda of law from both ·parties, heard oral argument on Oct. 28, 2014, and reserved decision. Plaintiff's Labor Law§ 240 (1) Claim CPLR 440 I states, in relevant part, that "[a]ny party may move for judgment with respect to a[n] .. . issue upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presen~ed by an opposing party with respect to such . .. issue...." "To be entitled to judgment as a matter of law pursuant to CPLR 4401, a plaintiff has the burden of showing that there is no rational process by which the jury could find in favor ofthe defendant and against the moving plaintiff' (Galarza v City o[New York, 2014 NY Slip Op 08399, •1 [2d Dept]). Here, the jury, in addressing plaintiff's Labor Law§ 240 (1) claim, found that the statute applied and that it was violated.4 More particularly, the jury found (in response to interrogatory #I) that he was engaged in repair work covered by the statute, as opposed to routine maintenance, and (in response to interrogatory #2) that defendant failed to provide him proper protection from height-related dangers connected with his work. The unrebutted evidence adduced at trial by plaintiff, a plumber, demonstrated that ( l) he was engaged in repair work;5 (2) defendant, which opted not to call any witnesses or present any evidence at trial (other than the reading of excerpts fr-0m plaintifrs and Murray's pretrial deposition testimony), did not provide him with proper protection from height-related dangers connected •. Labor Law § 240 ( 1) imposes on owners a nondelegable duty to provide safety devices necessary to protect worken from risks inherent in elevated work sites (see McCarthy v Turner Constr., 17 NY3d 369, 374 [2011 ]). "To prevail oo a cause of action alleging a violation of Labor Law§ 240 (I), a plaintiff must show that the statute was violated, and that the violation was a proximate cause ofhis or her Injuries" {Probst v 11 West 42 Realty IJWaton, LLC, 106 AD3d 711, 711-712 [2d Dept 2013)). s.See trial testimony ofplaintiff's expert Joseph Zinman, P.E ., pages 556-557, explaining in detail why the work plalntitTand his team members were perfonning on the boiler was "a major repair," rather than maintenance. 5 16o,.12 [* 6] P19017ol412 • •• with his work; and (3) the ledge on which he worked was inadequate to prevent him from falling 15 f ect to the floor after getting scalded with steam and hot water in the course of repairing the leaking boiler. Thus, there is no basis to disturb the jury findings (in response to interrogatories #1 and #2) that plaintiff was engaged in repair at the time of the accident and that defendant failed to provide him with an adequate safety device. On the other hand, there was no rational process by which the jury could find, as it did in response to interrogatory #3, that defendant's violation of Labor Law§ 240 (l) was not a substantial factor in causing the accident. To respond to this interrogatory the way the jury did, it had to fmd that either plaintiff's own negligence, or Murray's act oftripping/bumping into the valve(s), or both, constituted a superseding cause of the accident. As to plaintiff, the jury found (in response to interrogatories #8, #9, and #12) that plaintiff was negligent (assessed at only 10%), but that his negligence was not a substantial factor in causing the accident. This means that the jury did not view plaintiff's conduct alone as the sole proximate cause of the accident6 As to Murray, the jury found (in response to interrogatories #10, #11, and #12) that Murray was negligent in tripping/bumping into the valve(s) and that his negligence (assessed at 40%) was a substantial factor in causing the accident. On the evidence adduced at trial, the jury could not rationally have concluded that Murray's act of tripping/bumping into the valve(s) was a superseding cause sufficient to relieve defendant of Labor Law§ 240 (1) liability to plaintiff as a matter oflaw (see Morocho v Plainview-Old Bethpage Cent. School Dist., 116 AD3d 935 [2d Dept2014];Lopez-Donesv 601 W. .Assoc., 98 AD3d476 [2dDept 2012]; Losito v Manlyn Dev. Group, 85 AD3d 983, 984 [2d Dept 2011]; Cordero v Kaiser Org., 288 AD2d 424 [2d Dept 2001]; deSousa v Dayton T. Brown, Inc., 280 AD2d 447, 448 [2d Dept 2001]). 6· The jury finding that plaintiff was negligent is irrational and is not based on any evidence adduced at trial. In any event, plaintiff's comparative negligence is not a defense to a Labor Law§ 24'0 (I) violation (se• La Lima v F.pnem, 143 AD2d 886, 888 [2d Dept 1988D. 6 [* 7] P1~ 2760/2010 Order did 516115 1801412 • • Defendant contends that the accident was caused by the openin!!. of a hot water valve, which is not an elevation related risk as a matter of law" (Defendant's Supplemental Memorandum of Law at 4). According to defendant, "[t]ripping a water valve is an 'ordinary• hazard of construction. not an elevation risk. Nor is a burn an elevation related injury" (id. at 7). In support of its position, defendant relies on a federal district court decision in Eberl v FMC Corp., 872 F Supp 2d 250 (WD NY 2012), in which a steamfitter voluntarily jumped off an elevated platform to avoid getting hit with steam. There, the district court held (at page 257) that the accident was "the result ofthe separate haz.ard of hot steam condensate emanating from the cut pipe, prompting [p]laintiff' s decision to jump from the scissor lift platform." Or "[t]o put it another way, the risk of being burned is not one that Labor Law§ 240 is intended to guard against" (id.). As precedent, the district court cited to Fenty v City ofNew York, 71 AD3d 459 (1 11 Dept 2010), which held (at page 460) that the worker's voluntary jump out of a bucket lift to avoid being hit with hot team "was not attributable to the risk arising from the elevation differentials at his work site that brought about the need for the safety device in the first place, but rather was caused by the separate, unforeseeable hazard of hot steam emanating from a ruptured pipe." Defendant's reliance on the Eberl and Fenty decisions is unavailing for three reasons. First, the Eberl and Fenty decisions contradict a long line of the Second Department's holdings. cited above, that the act of one coworker in starting the chain of events which caused the other coworker to fall off an elevation is not a superseding cause (see Morocho, 7 1 · In Mor~cho, the e,laintiffwas working on a properly placed ladder''without incident for a period of time. At some ~int, a coworker, while cleaning up the discarded plastic sheeting that was Uttering the Ooor [in the room where plaintiff was working], pulled a piece of the sheeting, causing the sheeting to become entangled with the ladder, and causing the ladder, and the rlaintiff, to fall to the ground." The Second Department. in reversing the motion court and granting the plaintitfpartia summary judgment on liability on bis Labor- Law§ 240 (1) claim, beld (at page 936) that the coworker's acts did not constitute a superseding cause sufficient to relieve the defendant of liability. 7 Pnnted 4/4120'7 [* 8] 2760/2010 Order dtd 51Gi 15 • • Lopez-Dones,8 Losito,9 Cordero, 10 deSousa 11 ). In fact, defendant concedes, as it must, that "no event of a fall in any manner occurred until after Murray hit the valve., (Defendant's S11pplemental Memorandum of Law at 4), meaning that the chain of events started with Murray's act of tripping/bumping into the valve(s). Second, the Eberl and Fenty decisions do not cite to the Court of Appeals' controlling decision in Gordon which narrowly construed the concept of "superseding cause" in the Labor Law § 240 (1) context. There, the Court of Appeals held (at page 562) that "(a]n independent intervening act may constitute a superseding cause, and be sufficient to relieve a defendant of liability, if it is of 1mch an extraordinary nature or so attenuated from the defendants' conduct that responsibility for the injury should not reasonably be attributed tothem." 12 Here, Murray's act of tripping/bumping into the valve(s) while working in close spacial proximity to them was not an event of"extraordinary nature" as a matter oflaw. The a. In Lopa-Dones, the plaintiff was standing on an A-frame ladder, working for several hours without anY incident, until an unidentified man pushing a loaded dolly ~the ladder caused the dolly to come into concact with the ladder, and the Impact caused the ladder to tip. The plaintiffwas able to regain her balance. but was injured u a result The Second Department (at page 479) reversed the motion court and grmted the plaintiffpartial summary judgment on liability on her tabor Law§ 240 (1) claim. ' ·In Losito, the SccondDepartmentbcld (at page984)thatthe foreman's stepping on tho backoftheplaintitrs ladder just before it broke was not a superseding cause sufficient to relieve defenduits ofliability. 1 a.1n Cordeo, the plaintiffwu installing an HVAC unit that was ~ded from the roof rafters ofa buildin& WJdcr construction. To reach the WJit, the plaindftstraddled two exposed ceilmg beams. He wu not provided with any type ofsafety device. When the building shook, the.Plaintiff lost his balance, fell between the beams, Ind lod&od his left leg between the beams but did not fall to the ground. The plaintiff claimed that the roofer was at fault for pamltting its employees to th.row bags of shingles onto the roofwhlch shook the buildinJ. resulting in vibrations that, in tum, caused him to fall. As the Second Department held (at page 426), "the plaintiff's injuries did not result ftom a separate hazard wholly unrelated to the risk which brought about the need for the safety device in the first instance. The risk that the beams could shake [did not] ... constitute a superseding cause .. ., particularly since the plaintiff was working inside ... a building that was under construction" (internal quotation marks and citations omitted). 11 · In deSowa, a bricklayer was injured when the scaffold on which he wu ~~began to shake rapidly, causin& blm to lose his balance and fall to the ground. The movement was apparently by a coworker who wu attempting to adjust a pin and brace on the scaffold. The Second Department reversed the motion court and grated the bricklayer partial summary judgment on liability on his Labor Law§ 240 ( =~laininJ (at pqe 448) that "there is no question of fact as to whether the co-worker's actions constituted an le. independent. intervening act which was a superseding cause ofthe accident The co-worker's acts [did not) .. . constitute a superseding cause. .. ." n In Gordon (at page S62), the Comt of Appeals held that: "{D}efendants' failure to provide plaintiff with 1 safe scaffold or ladder while he sandblasted the railroad car was a substantial cause leading to his fall and the iqjuries he sustained. Injury was a foreseeable result of cleaning railroad cars from an elevated position, and a fall and lnj11ry occtU/oned by an all~ "f•ctiw 1andbltutt:r wed In the procas is not ofn1ch an 'exlTaordlnary nature' that defendants' ruponslbilily for the lnjvry should be 1r1ved' (emphasis added). 8 P~ 1Vof412 [* 9] 2760/2010 Oro.r did 5'&115 • • cramped quarters in which Murray and plaintiff were working made such an occurrence foreseeable.13 Third and finally, the Eberl and Fenty deci.sions have not been widely followed. No court subsequently cited the Eberl decision, and only Eberl, but no other court, subsequently cited the First Department's decision in Fenty for its interpretation of Labor Law§ 240 (1). 14 Accordingly, plaintiff's motion under CPLR 440 l for judgment as a matter of law on the issue of liability on his Labor Law § 240 ( l) claim is granted; conversely, the branch of defendant's motion under CPLR 440 I for judgment as a matter oflaw .dismissing plaintiffs Labor Law § 240 (l) claim is denied (see Vinasco v Intel/ Times Square Hotel, UC, •> The First Department's decision in Noble v AMCC Corp., 277 AD2d 20 (2000), is on point. There, the plaintiff hit his bead on an overhead pipe while working on top ofa boiler, slid down the side of the boiler but did not fall to the ground as he was able to hoist himselfbadt onto tho boiler, sustainini injwies to bis back in the process. lbe First Department affirmed the motion comt's granting of partial summary judgment on liabUity to the plaintiff on his Labor Law § 240 (I) claim, explaining (at 20-2 I): 04 Assuming plaintiffs slide down the boiler was caused by bis hitting his head on an overhead pipe, the cramped quarters in which he was working made such an occurrence foreseeable, and thus required the provision of a safety device. Moreover, any comparative negligence by plaintiff would not be a defense to the section 240 (1) violation in falling to provide a safety device. Nor wa.T plaintiff r~qulr•d to pruent evltknce a.r to which particular 1afeiy devlca would have prevented his injury" (internal citations omitted; emphasis added). 14 • Other decisions on which defendant relies are not relevant In Broggy v R.ocUfeUu Gr""P, Inc., 8 NY3d 615, 682 (2007}, the Court of.Appeala held that the injured worker failed to establish that "he stood on the desk because he wll! obliged to work at an elevation to wash the interior of the windows." Here, however, plaintiffwu required to stand on the ledge to perform his work. Defendant's " falling object" cases are fisctually and legally inapposite to this action brought by a "fallin& worker" (.r•• Fabrizi v /09J Ave. of Am.r., LLC, 22 NY3d 658, 661 [2014} ["Plaintiff lcnelt on the floor to begin drilling.. .. (W)hile plaintiff was drilling, the top conduit fell, striking plaintiff on the hand."}; Rodriguez v Margarei Tietz Ctr.for Nursing Care, 84 NY2d 841, 842 [1994) ["Plaintiff . . . Was injured while dismantling a hoist on the roof of a building owned by defendant. Plaintiff was struck in the knee by a falling steel beam which was pert of the hoist . . .'1; Gua//pa v D. DeMatteb Constr. Corp., 121AD3d416, 417 [t• D~ 2014] ["As plaintiffwalked by one of the pallets (holding concrete stones), a stone block that was resting on~ ()flt allegedly fell and struck him on the right knee."]; Carra.rco v Weis.tman, 120 AD3d 531, S32 f2d Dept 2014] [While plaintiff and his coworiter were holding a g)a.u pane, it split in half. "The pieces of glass struck both the plaintiff and his coworker, injuring them."); Medina v Cityo[New York, 81AD3d907, 907 [t• Dept 2011) ["Plaintiff'was standing on the trackbed when 1 12-foot section ofthe nut, unsecured and weakened by saw cuts, suddenly sprang~ and then fell, striking his leg.''); Sereno v Hong Kong Chinese Re.st., 19 AD3d 1414, 1414 [3d Dept 2010] Plaintiff was standing on the ground while a coworker wu lying on the exhaust hood four feet above him. As the coworker handed plaintiff a pressurb.ed bottle containing a chemical used for cleaning. the bottle slipped &om plaintiff's hands and, upon impact with the floor, spi:ayed the chemical into plaintiffs eye."]; H'lilteheadv Cl'r_ of New York, 79 AD3d 858, 859 [2d Dept 2010] ["The injured plaintiff ... allegedly was Injured at a construction site when a load of steel tubes that had just been hoisted by a crane and put down on the eighth floor ofa structure began to roll out while the bindinp on the load were being removed. The injured plaintiff, who was working on the eighth floor next to the load of steel, tried to run away (but) .. . was struck in his right knee by two steel tubes."}). uon r 9 Page 20 ol 412 [* 10] Page 21 of 4 12 2760/2010 Onler d1d 516115 • • 2014 NY Slip Op 07497, • 1 [2d Dept]; Preneta v North Castle, Inc., 65 AD3d 1027, 1028 [2d Dept 2009]; Laterra v Rockville Ctr. Union Free School Dist., 186 AD2d 789, 790 [2d Dept 1992]). Conclusion Plaintiff's motion under CPLR 4401 for judgment as a matter of law on the issue of liability on his Labor Law § 24() (1 )'claim is grant~ and the baanch of defendant's motion under CPLR 4401 for judgment as a matter oflaw dismissing plaintiff's Labor Law § 240 (I) claim is denied. Considering that only one recovery is available to plaintiff, regardless ofthe theories pleaded, the other branch of def~ndant's motion which is under CPLR 4401 for judgment as a matter of law dismissing plaintiff's remaining claims under Labor Law § 200 and for common-law negligence is denied as moot. Plaintiff's posttrial motion in Seq. No. 6 to set aside the verdict under CPLR 4404 is also denied as moot. In view of the foregoin& the jury finding in response to interrogatory #3, i.e., that defendant's failure to provide an adequate safety device was not a substantial factor in causing plaintiff's accident, is set aside as a matter of law as being inconsistent with the Court's detennination. The jury findings in response to interrogatories #8 and #12, i.e., that plaintiff was negligent and that his degree of fault was 10%, are set aside for the same reason. The bifurcated trial will now proceed to the damages phase. The parties are directed to appear in Part 41 on ~aD_, 2015, j_:!jA.M. to schedu~e a trial date on monetary damages. This constitutes the Decision and Order of the Court. Dre i 12014 ,... ... .. . 10 Pnrned 4/</2017

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