| Chavanne v BZL Cleaning Solution, Inc. |
| 2011 NY Slip Op 03988 [84 AD3d 852] |
| May 10, 2011 |
| Appellate Division, Second Department |
| Holly Chavanne et al., Respondents-Appellants, v BZLCleaning Solution, Inc., Respondent, et al., Defendants, and TJX Companies, Inc.,Appellant-Respondent. |
—[*1] Lawrence P. Biondi (Lisa M. Comeau, Garden City, N.Y., of counsel), forrespondents-appellants.
In an action to recover damages for personal injuries, etc., the defendant TJX Companies,Inc., appeals, as limited by its brief, from so much of an interlocutory judgment of the SupremeCourt, Queens County (Elliot, J.), entered August 27, 2010, as, upon so much of a jury verdict onthe issue of liability as found it 50% at fault in the happening of the accident, and upon the denialof its motion pursuant to CPLR 4404 (a) to set aside the jury verdict as contrary to the weight ofthe evidence, is in favor of the plaintiffs and against it to the extent that the interlocutoryjudgment held it 50% at fault in the happening of the accident, and the plaintiffs cross-appeal, aslimited by their brief, from so much of the same interlocutory judgment as, upon so much of thejury verdict on the issue of liability as found the injured plaintiff 20% at fault in the happening ofthe accident, and upon the denial of their motion pursuant to CPLR 4404 (a) to set aside the juryverdict as a matter of law, or to set aside the jury verdict as contrary to the weight of theevidence, is in favor of the defendants TJX Companies, Inc., and BZL Cleaning Solution, Inc., tothe extent that it held the injured plaintiff 20% at fault in the happening of the accident.
Ordered that the interlocutory judgment is affirmed, without costs or disbursements.
The plaintiff Holly Chavanne (hereinafter Chavanne) was injured at a Marshalls departmentstore in Queens on a Saturday morning in December 2007 when an employee of the defendantBZL Cleaning Solution, Inc. (hereinafter BZL), struck her feet with a floor buffer which he waspushing toward a storage closet with the motor running. Subsequently, Chavanne, and herhusband, suing derivatively (hereinafter together the plaintiffs), commenced this action against,among others, BZL and TJX Companies, Inc. (hereinafter TJX), as the owner/operator ofMarshalls' retail stores.[*2]
At a trial on the issue of liability, Chavanne testified,inter alia, that she saw and heard the round, circular part of the floor buffer spinning when it wasthree to five feet from where she stood looking through a rack of clothes. BZL's employeetestified, inter alia, that he knew the store had already opened to customers and had completedbuffing the floors when he was pushing the machine to a storage area and turned into the mainhallway to avoid bumping into anyone. Both BZL's employee and the store assistant managerunequivocally testified that the buffer should not be operated during store hours for safetyreasons and established that, when the buffer was being used, it made a loud noise which madeconversation impossible and could be heard from halfway across the store. Chavanne testifiedthat before the accident, she was facing the rack of clothing, and turned and saw the bufferdirectly in front of her the moment she heard the noise. The BZL employee, however, testifiedthat Chavanne appeared suddenly and came right toward him as he pushed the buffer down theaisle.
Contrary to the plaintiffs' contention, the jury verdict finding Chavanne 20% at fault in thehappening of the accident was supported by legally sufficient evidence. In light of the testimonyregarding the noise of the operating machinery in close proximity to Chavanne, and the testimonythat she suddenly came toward the BZL employee as he pushed the buffer, there was a valid lineof reasoning and permissible inferences which could lead a rational person to conclude that shefailed to perceive what was readily observable by the reasonable use of her senses and, thus, was20% at fault (see generally Cohen v Hallmark Cards, 45 NY2d 493, 499 [1978]; see Neiderbach v 7-Eleven, Inc., 56AD3d 632, 633 [2008]; Schoen v King Kullen Grocery Co., 296 AD2d 486 [2002]).
"[A] jury verdict should not be set aside as against the weight of the evidence unless the jurycould not have reached its verdict on any fair interpretation of the evidence" (Desposito v City of New York, 55AD3d 659, 660-661 [2008]; seeGuclu v 900 Eighth Ave. Condominium, LLC, 81 AD3d 592 [2011]; Kaplan v Miranda, 37 AD3d 762[2007]). Whether a jury verdict should be set aside as contrary to the weight of the evidencerequires a discretionary balancing of many factors (see Cohen v Hallmark Cards, 45NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129 [1985]). Applying these principleshere, the verdict as to Chavanne's liability was supported by a fair interpretation of the evidenceand was not contrary to the weight of the evidence.
TJX contends that the verdict finding it 50% at fault is contrary to the weight of the evidence."Owners and business proprietors have a duty to maintain their property 'in a reasonably safecondition in view of all the circumstances, including the likelihood of injury to others, theseriousness of the injury, and the burden of avoiding the risk' " (Dabnis v West Islip Pub. Lib., 45AD3d 802, 803 [2007], quoting Peralta v Henriquez, 100 NY2d 139, 144 [2003]; see Walsh v Super Value, Inc., 76AD3d 371, 375 [2010]). We find that, in light of the discretionary balancing of many factorsin determining whether a verdict is supported by the weight of the evidence (see Cohen vHallmark Cards, 45 NY2d at 499; Nicastro v Park, 113 AD2d at 132), the jury'sverdict that TJX was 50% at fault was supported by a fair interpretation of the evidence, whichincluded the store's assistant manager's admission that she could have stopped BZL's employeefrom operating the floor buffer when she heard it being operated after the store had opened tocustomers, but inexplicably failed to do so (see Cohen v Hallmark Cards, 45 NY2d at498-499; Nicastro v Park, 113 AD2d at 135).
Contrary to the contention of TJX, the trial court did not improperly "direct[ ] a verdict" inthe plaintiffs' favor holding TJX vicariously liable for BZL's inherently dangerous activity.Instead, the trial court denied the request of TJX to charge the jury on this issue (see PJI2:255) and properly charged the jury on principles of negligence. The trial court asked the jury toconsider only whether TJX was negligent and, if so, whether such negligence was a substantialfactor in bringing about the occurrence. Accordingly, TJX's contention is without merit.Angiolillo, J.P., Florio, Lott and Austin, JJ., concur.