| Dietz v Compass Prop. Mgt. Corp. |
| 2008 NY Slip Op 02226 [49 AD3d 1152] |
| March 14, 2008 |
| Appellate Division, Fourth Department |
| James A. Dietz, Appellant, v Compass Property ManagementCorporation et al., Respondents. |
—[*1] Rupp, Baase, Pfalzgraf, Cunningham & Coppola LLC, Buffalo (Lisa A. Coppola of counsel),for defendants-respondents.
Appeal from a judgment of the Supreme Court, Erie County (Joseph G. Makowski, J.),entered December 19, 2006 in a personal injury action. The judgment, upon a jury verdict,dismissed the complaint.
It is hereby ordered that the judgment so appealed from is unanimously reversed on the lawwithout costs, the post-trial motion is granted, the verdict is set aside in part, the complaint isreinstated, and a new trial is granted on the issues of proximate cause and damages.
Memorandum: Plaintiff commenced this Labor Law § 241 (6) action to recoverdamages for injuries he sustained when he fell while pushing a wheelbarrow up a ramp and intothe back of a truck. At trial, the jury returned a verdict in favor of defendants. Plaintiff thenmoved to set aside the verdict with respect to proximate cause as against the weight of theevidence and for a new trial on the issues of proximate cause and damages. We agree withplaintiff that Supreme Court erred in denying his motion. We note at the outset that, although theorder from which plaintiff's appeal was taken was subsumed in the judgment, we exercise ourdiscretion to treat the notice of appeal as valid and deem the appeal as taken from the judgment(see Hughes v Nussbaumer, Clarke & Velzy, 140 AD2d 988 [1988]; see alsoCPLR 5520 [c]).
We further note at the outset that the record does not support plaintiff's contention that thejury " 'was substantially confused by the verdict sheet and the charge and was thus unable tomake a proper determination upon adequate consideration of the evidence' " (Dillman vAlbany R.C. Diocese, 237 AD2d 767, 767 [1997]; cf. Helton v Hirschman, 17 AD3d 987, 989 [2005]). Contrary to thefurther contentions of plaintiff, the court's charge " 'accurately stated the law as it applie[d] to thefacts in this case' " and did not prevent the jury from considering the issues before it (Gerbino v Tinseltown USA, 13 AD3d1068, 1071 [2004]).
We agree with plaintiff, however, that the verdict is against the weight of the evidence on theissue of proximate cause. The issues of negligence and proximate cause "are so inextricably[*2]interwoven as to make it logically impossible to findnegligence without also finding proximate cause" (Skowronski v Mordino, 4 AD3d 782, 783 [2004] [internalquotation marks omitted]; seeSzymanski v Holenstein, 15 AD3d 941 [2005]), and here the jury found negligence butnot proximate cause. The applicable Industrial Code regulation requires that ramps constructedfor the use of wheelbarrows shall be "at least 48 inches in width . . . [and] shall beconstructed of planking at least two inches thick full size or metal of equivalent strength" (12NYCRR 23-1.22 [b] [3]). The regulation further requires that such ramps "shall be provided withtimber curbs at least two inches by eight inches full size, set on edge and placed parallel to, andsecured to, the sides of such . . . ramps" (id.). The undisputed evidence attrial established that the ramp from which plaintiff fell was a single plank of wood less than 12inches wide and two inches thick and was without timber curbs. Furthermore, one of plaintiff'scoworkers testified that he had fallen off the ramp over 50 times. Plaintiff's safety expert testifiedthat the ramp did not comply with the prevailing standards in the construction industry at thetime of the accident, plaintiff's engineering expert testified that the accident would not haveoccurred if the ramp had been 48 inches wide with curbs, as required by 12 NYCRR 23-1.22 (b)(3), and plaintiff's medical expert testified that plaintiff's injuries were caused by the fall from theramp. Although defendants did not call any witnesses, they contend that the verdict is not againstthe weight of the evidence because plaintiff's testimony concerning the accident was not credible.We reject that contention. Although no witnesses saw plaintiff fall off the ramp, one witnessheard the sound of a wheelbarrow falling to the ground, and moments later three witnessesobserved plaintiff holding his back and complaining of pain. Even assuming, arguendo, that thejury did not credit plaintiff's testimony, we nevertheless conclude that there is no fairinterpretation of the evidence pursuant to which the jury could find, as it did here, that theaccident occurred, that plaintiff's injuries were caused by the accident, that the condition of theramp constituted negligence on the part of defendants, but that defendants' negligence was not aproximate cause of the accident (see Szymanski, 15 AD3d 941 [2005]).Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.