| Pipp v Guthrie Clinic, Ltd. |
| 2011 NY Slip Op 00302 [80 AD3d 1014] |
| January 20, 2011 |
| Appellate Division, Third Department |
| Carl Pipp et al., Respondents, v Guthrie Clinic, Ltd., et al.,Appellants. |
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Mercure, J. Appeals (1) from an order of the Supreme Court (O'Shea, J.), entered December14, 2009 in Chemung County, which denied defendants' motion to set aside a verdict in favor ofplaintiff, and (2) from a judgment of said court, entered January 20, 2010 in Chemung County,upon said verdict.
Plaintiff Carl Pipp (hereinafter plaintiff) fell and injured his left knee in September 2003,while delivering oxygen cylinders to a medical supply facility that was leased and operated bydefendants. Following surgery, plaintiff developed a postoperative staph infection, ultimatelyrequiring a left knee replacement. Plaintiff and his wife, derivatively, commenced this action,alleging that defendants negligently failed to maintain their premises in a safe manner.Specifically, plaintiffs claimed that a height differential from the parking lot to the loading areacreated a dangerous condition and caused plaintiff's accident.
A trial was held, at the close of which the jury determined that defendants were negligent andthat such negligence was a proximate cause of plaintiff's injuries. The jury also found thatplaintiff was negligent, but determined that his negligence was not a substantial factor in causinghis fall and injuries. The jury awarded plaintiff $545,982.68 in damages and, after denyingdefendants' motion to set aside the verdict or grant a new trial, the court entered judgment.Defendants appeal from the judgment and the order denying their motion to set aside the verdict.[*2]
We affirm. Initially, we reject defendants' argument thatthey are entitled to judgment as a matter of law because plaintiffs failed to prove the cause ofplaintiff's fall. "[F]ailure to prove what actually caused a plaintiff to fall in a situation where therecould be other causes is fatal to a plaintiff's cause of action" (Dapp v Larson, 240 AD2d918, 919 [1997]; see Denny v New York State Indus. for Disabled, 291 AD2d 615, 615[2002]). Plaintiffs were not, however, "required to rule out all plausible variables and factors thatcould have caused or contributed to the accident" (Gayle v City of New York, 92 NY2d936, 937 [1998]). Rather, to establish proximate cause, they were required to prove only "that itwas more likely or more reasonable that the alleged injury was caused by . . .defendant[s'] negligence than by some other agency" (id. [internal quotation marks andcitations omitted]). That is, "plaintiffs needed only to prove that defendants' negligent act oromission was a substantial factor in bringing about their injuries" (Capicchioni vMorrissey, 205 AD2d 959, 961 [1994]).
Contrary to defendants' assertions here, plaintiff provided more than "conclusions based uponsurmise, conjecture [or] speculation" (Dapp v Larson, 240 AD2d at 919 [internalquotation marks omitted]) regarding the cause of his fall. Plaintiff consistently testified that hisknee was injured when he slipped while he was lifting and pushing a cart laden with oxygencylinders from defendants' graveled parking lot onto a concrete loading pad, which was six toeight inches higher than the parking lot. Plaintiff's inability to specify whether his knee gave outor twisted, causing him to slip, or whether his foot slipped on a wet surface does not negate histestimony that he slipped while attempting to negotiate a heavy cart over the six-to-eight-inchconcrete lip between the parking lot and loading pad. Under these circumstances, it cannot besaid that " 'there is simply no valid line of reasoning and permissible inferences which couldpossibly lead rational [people] to the conclusion reached by the jury' " (Popolizio v County of Schenectady, 62AD3d 1181, 1183 [2009], quoting Cohen v Hallmark Cards, 45 NY2d 493, 499[1978]; see DiBartolomeo v St. Peter'sHosp. of the City of Albany, 73 AD3d 1326, 1327-1328 [2010]; Griffin v Sadauskas, 14 AD3d930, 931 [2005]; cf. Martin vWilson Mem. Hosp., 2 AD3d 938, 939 [2003]; Denny v New York State Indus. forDisabled, 291 AD2d at 615-616; Dapp v Larson, 240 AD2d at 919).
Defendants' remaining contentions do not require extended discussion. The impropercomments of plaintiffs' counsel during his opening statement referencing defendants' wealth werenot so egregious as to deprive defendants of a fair trial, particularly given that Supreme Courtsustained defendants' objections and later instructed the jury not to consider who the verdict hurtor helped (see Stanton v Price Chopper Operating Co., 243 AD2d 934, 935 [1997];Jackson v County of Sullivan, 232 AD2d 954, 956 [1996]). Finally, we note thatdefendants consented to both the verdict sheet and the court's instructions permitting the jury tofind that plaintiff was negligent, but that his negligence was not a substantial factor in causing hisinjuries—i.e., that plaintiff's negligence was not a proximate cause of his injuries. Inaddition, defendants failed to raise their objection that the verdict is logically inconsistent prior tothe jury's discharge; rather, the issue was first raised in connection with their posttrial motion.Thus, defendants' challenge to the consistency of the verdict is unpreserved for our review (see Bradley v Earl B. Feiden, Inc., 8NY3d 265, 272 n 2 [2007]; Feinberg v Saks & Co., 56 NY2d 206, 210-211 [1982];Barry v Manglass, 55 NY2d 803, 806 [1981]; Lang v Newman, 54 AD3d 483, 488 [2008], affd 12 NY3d868 [2009]; Cerniglia v Wisniewski, 267 AD2d 660, 661 [1999]; but see Winter v Stewart's ShopsCorp., 55 AD3d 1075, 1076 n [2008]).
Defendants' remaining arguments, to the extent not addressed herein, have been consideredand found to be lacking in merit.[*3]
Cardona, P.J., Malone Jr., Stein and Garry, JJ., concur.Ordered that the order and judgment are affirmed, without costs.