| Popolizio v County of Schenectady |
| 2009 NY Slip Op 03978 [62 AD3d 1181] |
| May 21, 2009 |
| Appellate Division, Third Department |
| Vincenzo Popolizio, Respondent-Appellant, v County ofSchenectady, Appellant-Respondent. |
—[*1] Conway & Kirby, L.L.P., Latham (Andrew W. Kirby of counsel), forrespondent-appellant.
Cardona, P.J. Cross appeals from a judgment of the Supreme Court (Reilly Jr., J.), enteredApril 11, 2008 in Schenectady County, upon a verdict rendered in favor of plaintiff.
On a snowy night in December 2000, plaintiff was driving on Gallupville Road in the Townof Duanesburg, Schenectady County, when he lost control of his car on a very steep downgradeand, unable to negotiate the sharp curve at the bottom of the hill, slid across the road and plungedhead-on into a ditch. The ditch was 12 feet wide, more than four feet deep, V-shaped, and hadsteep sloping sides. The car angled downward when it entered the ditch and, as a result, when thefront end struck the opposite slope, plaintiff's head hit the windshield frame above the airbag.The car was damaged beyond repair.
Plaintiff commenced this action against defendant, the owner of the road, alleging thatdefendant was negligent in its design and maintenance of the road and that, as a result, plaintiff[*2]sustained a traumatic brain injury.[FN*]A jury rendered a verdict in plaintiff's favor, awarding him $1 million for past pain and sufferingand $3.6 million for future pain and suffering over a period of 23 years. Upon defendant'sposttrial motion, Supreme Court declined to set aside the verdict, but agreed to reduce the awardfor past pain and suffering to $350,000 and the award for future pain and suffering to $1.25million. The parties now cross-appeal, with plaintiff arguing that the full jury award should bereinstated, and defendant arguing that the verdict was not supported by legally sufficientevidence and was against the weight of the evidence, that certain trial errors require reversal and,alternatively, that the damage award should be further reduced.
We begin with defendant's contentions regarding sufficiency of the evidence. Defendantargues that its duty to plaintiff was limited to maintaining in a reasonably safe condition thoseportions of the road intended for vehicular use, and because the uncontradicted trial evidenceestablished that the traveled portion of the roadway was designed and maintained so as to bereasonably safe for the careful driver, the evidence was not legally sufficient to support theverdict. We do not agree. Notably, where roadside hazards such as drainage ditches are"inherently dangerous," a municipality has a "duty to prevent vehicles from leaving the road or,if they do, to eliminate the danger" (Hillv Town of Reading, 18 AD3d 913, 915-916 [2005]; see Gomez v New York StateThruway Auth., 73 NY2d 724, 725 [1988]). In this matter, plaintiff's highway andengineering experts presented proof that the design of the ditch deviated significantly fromaccepted standards for highway design. Further, they opined that, given its location alongside aright-angle curve at the foot of a very steep slope, the ditch was dangerous and should have beeneliminated, modified to render it traversable, or protected by a guide rail. Given this proof, wecannot say that "there is simply no valid line of reasoning and permissible inferences whichcould possibly lead rational [people] to the conclusion reached by the jury" (Cohen vHallmark Cards, 45 NY2d 493, 499 [1978]).
Defendant next argues that there was insufficient proof of causation. Specifically, defendantcontends that because the accident was not set in motion by the ditch but rather by plaintiff's ownactions, as a matter of law the design and placement of the ditch could not be considered aproximate cause of the accident. Initially, we note that we implicitly rejected that argument inour previous decision in this case (49 AD3d 1117, 1118-1119 [2008]). Furthermore, the recordreveals that the jury was appropriately charged, without objection, to decide whether defendant'snegligence with respect to the ditch was a substantial cause of plaintiff's injuries (seeLattanzi v State of New York, 53 NY2d 1045 [1981], affg 74 AD2d 378, 380[1980]; Hill v Town of Reading, 18 AD3d at 915; Temple v Chenango County,228 AD2d 938, 940 [1996]). In that regard, legally sufficient evidence was presented by theexpert testimony cited above which detailed the hazards inherent in the location and design ofthe ditch, along with the testimony of plaintiff's expert medical witnesses who opined that hisbrain injury was caused by the impact to his head when his car plunged into the ditch.
Defendant's argument that the verdict is against the weight of the evidence is limited to itscontention that because the jury found plaintiff to be negligent, the apportionment of 100% ofthe fault to defendant is logically impossible. However, we note that the verdict sheet [*3]contemplates just such a possibility. Specifically, it instructs thejury that even where plaintiff is found to be negligent, it must nonetheless skip over the questionregarding apportionment of liability unless it also finds that plaintiff's negligence was asubstantial factor in causing plaintiff's injuries. Here, the jury found plaintiff negligent,but also found that his negligence was not a substantial factor in causing his injuries. Asinstructed, the jury thereafter apportioned no fault to him.
We further note that a jury's finding that a plaintiff was at fault but that such fault was not asubstantial factor in causing his or her injury "is inconsistent and against the weight of theevidence only when the issues are so inextricably interwoven as to make it logically impossibleto find negligence without also finding proximate cause" (Starr v Cambridge GreenHomeowners Assn., 300 AD2d 779, 780 [2002] [internal quotation marks and citationomitted]; see Winter v Stewart's ShopsCorp., 55 AD3d 1075, 1076 [2008]; Nash v Fitzgerald, 14 AD3d 850, 851 [2005]). Given thecircumstances of plaintiff's accident, it would not have been unreasonable for the jury todetermine that plaintiff was at fault in the operation of his car, but would not have sustained hisinjuries had the ditch been removed, rendered traversable or protected by a guide rail. Thus, theissues are not inextricably interwoven.
We are also unpersuaded by defendant's various assertions of trial error. Initially, we findthat Supreme Court properly denied defendant's request for a missing witness charge as toplaintiff's son, daughter and brother-in-law. Defendant did not request such a charge until wellafter the close of proof and, moreover, was unable to demonstrate that their testimony would nothave been cumulative (see People v Gonzalez, 68 NY2d 424, 427-428 [1986];Gagnon v St. Clare's Hosp., 58 AD3d 960, 961 [2009]). Next, we find that the courtresponded appropriately when the jury initially returned inconsistent answers to certain questionson the verdict sheet. The court properly directed the jurors to reconsider their verdict(see CPLR 4111 [c]) and advised them that they were also free to revise any part of theverdict sheet accordingly. Finally, defendant's contention that the court erred by not instructingthe jury that defendant could not be held liable for the snow and ice on the road was waived bydefendant's failure to register a timely objection (see CPLR 4110-b), and we decline tointervene in the interest of justice as "we find no evidence of error so significant that the jurywas prevented from fairly considering the issues at trial" (Pyptiuk v Kramer, 295 AD2d768, 771 [2002] [internal quotation marks and citation omitted]). Defendant's remainingcontentions concerning evidentiary errors have been examined and found unpersuasive.
Lastly, we find the award of $1.25 million for future pain and suffering to be inadequate(see CPLR 5501 [c]). Plaintiff, who was 56 years old at the time of trial, suffered atraumatic brain injury that not only permanently altered his day-to-day life, but effectivelychanged who he is as a person. An IQ test taken after the accident revealed that his cognitivefunction now borders on mild retardation. Where he was formerly an active and successfulbusiness owner, he now relies on others to run his business, and where he once enjoyed manysporting activities and family gatherings, he now takes little pleasure in these things. Hisself-awareness of these changes has resulted in depression and retreat from his loved ones. Giventhe nature of plaintiff's injuries and the difficult challenges he faces each day, as well as his ageand life expectancy, an award of $1.75 million more accurately represents reasonablecompensation for his damages. Accordingly, we modify the total damage award to $2.1 million.
Peters, Malone Jr., Stein and McCarthy, JJ., concur. Ordered that the judgment is modified,on the facts, without costs, by reversing so much thereof as awarded plaintiff $1.25 million forfuture pain and suffering; new trial ordered on the issue of said damages unless, within 20 daysafter service of a copy of the order herein, defendant stipulates to increase the amount of saidaward to $1.75 million, in which event the judgment, as so modified, is affirmed.
Footnote *: Defendant was previouslygranted partial summary judgment dismissing the complaint insofar as it alleged that defendantwas negligent in failing to clear snow and ice from the road (49 AD3d 1117 [2008]).