| Reis v Volvo Cars of N. Am. |
| 2013 NY Slip Op 03024 [105 AD3d 663] |
| April 30, 2013 |
| Appellate Division, First Department |
| Manuel Reis et al.,Appellants-Respondents, v Volvo Cars of North America et al.,Respondents-Appellants. (And a Third-Party Action.) |
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Hardin, Kundla, McKeon, Paulette & Polifroni, P.A., New York (Stephen J.Donahue of counsel), for respondents-appellants.
Judgment, Supreme Court, New York County (Marcy S. Friedman, J.), enteredSeptember 2, 2011, after a jury trial, awarding plaintiff damages on his negligence claim,modified, on the law, to reduce the jury's award for future household relocation andmodification costs by $168,000, and otherwise affirmed, without costs.
The trial court properly set aside the jury's verdict on plaintiffs' failure to warn claim.The trial court was bound by our decision of May 4, 2010 (73 AD3d 420 [1st Dept2010]), which was issued after the jury rendered its verdict but before the judgment wasentered, modifying the motion court's decision denying defendants' motion for dismissalof that claim (see Caleb vSevenson Envtl. Servs., Inc., 72 AD3d 1517 [4th Dept 2010]). Plaintiffs did notcure the deficiency in their opposition to that motion with the evidence they offered attrial, and defendants did not waive their appeal by failing to seek a stay of the trial.
Plaintiffs' experts testified that in 1987 many major car manufacturers, includingGeneral Motors, Ford, Nissan, Mazda and Toyota, equipped their manual transmissioncars with a starter safety switch that would prevent a car from moving if someonereached in and started the car while it was in gear. The trial court properly instructed thejury that in determining the negligent design claim it first had to decide whether, from theevidence at trial, there was a general custom or practice by automobile manufacturersselling manual transmission vehicles in the United States in 1987. The proof adduced attrial was sufficient to permit a jury to conclude that the practice was fairly well defined inthe car manufacturing industry. Plaintiffs were not required to prove universalapplication of the practice in order for the jury to consider this question (see Trimarcov Klein, 56 NY2d 98 [1982]). The court further properly instructed the jury that ifthere was such a custom and practice, it could be considered along with all of the otherfacts and circumstances, in determining whether Volvo had exercised reasonable care (see John v Great Neck Union Free[*2]School Dist., 42 AD3d 437 [2d Dept 2007]).From all of the evidence in the record, including the experts' testimony, the juryreasonably concluded that defendants were negligent in failing to use a starter interlockdevice in its vehicle (Voss v Black & Decker Mfg. Co., 59 NY2d 102 [1983]).The trial court correctly denied defendants' motion for a directed verdict because therewas sufficient evidence supporting plaintiffs' negligent design claim.
The trial court did not commit error by charging the jury on special knowledge (PJI2:15) and customary business practices (PJI 2:16), as tailored to the facts of this case, inaddition to PJI 2:120. The jury separately considered the issues of negligent design andstrict products liability. PJI 2:120 applies to the claim of strict products liability, whereasPJI 2:15 and 2:16 apply to the negligent design claim. There is no reversible errorbecause the charges did not confuse the jury or create any doubt as to the principle of lawto be applied (see Lopato v Kinney Rent-A-Car, 73 AD2d 565 [1st Dept 1979]).Defendants' argument that the jury's verdict is inconsistent because it found that the 1987Volvo was not defective without a starter interlock device, but that defendants werenevertheless negligent in how they designed this vehicle, is a claim not preserved forappeal (Arrieta v ShamsWaterproofing, Inc., 76 AD3d 495, 496 [1st Dept 2010], citing Barry vManglass, 55 NY2d 803, 806 [1981]). Defendants did not raise this objection beforethe jury was discharged, although they had the opportunity to do so. It was raised for thefirst time in their motion to set aside the verdict based upon the weight of the evidence(see Knox v Piccorelli, 83AD3d 581 [1st Dept 2011]).
A comparative negligence charge (PJI 2:36) was unwarranted because there is novalid line of reasoning based on the trial evidence that would have permitted thefactfinder to conclude that the injured plaintiff was negligent. There was no evidence thatplaintiff knew or should have known that a car with a manual transmission can jumpforward when started while in gear (see Perales v City of New York, 274 AD2d349 [1st Dept 2000]).
The trial court properly admitted evidence of a nonparty manufacturer'spostmanufacture, preaccident modification on the issue of feasibility regarding the failureto warn claim, which, although later dismissed, was before the jury at the time of trial(see Haran v Union Carbide Corp., 68 NY2d 710 [1986]). The nonpartymanufacturer's manual was properly admitted, with a limiting instruction, to prove whatdefendant knew or should have known about the dangers posed by its product. Themanuals were not considered for the truth of their contents. The trial court did not abuseits discretion in permitting the use of demonstrative evidence to assist the jury (seeRojas v City of New York, 208 AD2d 416, 417 [1st Dept 1994], lv denied86 NY2d 705 [1995]), or in its management of jury requests for readback oftestimony. The trial court, which was in the best position to review plaintiffs' counsel'scomments on summation, correctly concluded that they were fair comment and did notwarrant a new trial.
The court erred, however, in permitting plaintiffs' life-care expert to testify about thecost of plaintiffs' relocation and renovation costs in the amount of $168,000. Her opinionand calculations were based exclusively on subcontractors' quotes, which constitutedhearsay, and were not further supported by any evidence of professional reliability(Hambsch v New York City Tr. Auth., 63 NY2d 723, 726 [1984]; Ainetchi v 500 W. End LLC,51 AD3d 513 [1st Dept 2008]).
We have considered the parties' remaining arguments for affirmative relief and findthem unavailing. Concur—Saxe, Moskowitz and Gische, JJ.
Tom, J.P., and Abdus-Salaam, J., dissent in [*3]partin a memorandum by Abdus-Salaam, J., as follows: I believe that the judgment must bevacated and the matter remanded for a new trial on the negligence claim. The court erredin charging PJI 2:16, which permits a jury to consider customary business practices indetermining the standard of care. It was undisputed that in 1987, some manufacturersused safety switches, while others did not. Thus, there was no evidence of a customaryprocedure or policy that was "reflective of an industry standard or a generally-acceptedsafety practice" (1A PJI3d 2:16 at 260 [2013]), and the court should not have given thischarge, which is based on the jury having heard such evidence. Given that the jury'sverdict was inconsistent in that it found in favor of Volvo on the strict liability theory ofrecovery, but against Volvo on the negligence claim, I differ with the majority's view thatthe charge did not confuse the jury.