Dillman by Dillman v. Albany Roman Catholic Diocese

• Decision Date: 13 March 1997
• Citation: 237 A.D.2d 767,655 N.Y.S.2d 133
• Parties: , 116 Ed. Law Rep. 1122 Alice Molly DILLMAN, an Infant, by Alice M. DILLMAN, Her Parent and Guardian, et al., Appellants, v. ALBANY ROMAN CATHOLIC DIOCESE et al., Respondents.
• Court: New York Supreme Court — Appellate Division

Page 133

655 N.Y.S.2d 133

237 A.D.2d 767, 116 Ed. Law Rep. 1122

Alice Molly DILLMAN, an Infant, by Alice M. DILLMAN, Her Parent and Guardian, et al., Appellants, v. ALBANY ROMAN CATHOLIC DIOCESE et al., Respondents.

Supreme Court, Appellate Division Third Department.

March 13, 1997.

Finkelstein, Levine, Gittelsohn & Tetenbaum (Lawrence D. Lissauer, of counsel), Newburgh, for appellants.

Maynard, O'Connor, Smith, Catalinotto & D'Agostino (Arete K. Sprio, of counsel), Albany, for respondents.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

CREW, Justice.

Appeals (1) from an order of the Supreme Court (Hughes, J.), entered January 10, 1996 in Albany County, upon a verdict rendered in favor of defendants, and (2) from an order of said court, entered February 21, 1996 in Albany County, which denied plaintiffs' motion to set aside the verdict.

On September 16, 1992, plaintiff Alice Molly Dillman (hereinafter Dillman) sustained certain injuries when she fell from the monkey bars at St. Helen's School in Schenectady County. Dillman and her mother thereafter commenced this action against defendant St. Helen's Church and defendant Albany Roman Catholic Diocese alleging, inter alia, negligence on the part of defendants and their agents with respect to the maintenance and supervision of the playground area at the school. Following joinder of issue and discovery, the matter proceeded to trial, at the conclusion of which the jury returned a verdict in favor of defendants. Supreme Court entered judgment in accordance with the jury's verdict and dismissed the complaint. Plaintiffs thereafter unsuccessfully moved to set aside the verdict as against the weight of the evidence, and these appeals ensued.

Plaintiffs initially contend that Supreme Court erred in "personalizing" the jury charge by focusing attention upon Ann Marie Glenn, the school's principal at the time of Dillman's accident, and Mary Christopher Allie, Glenn's immediate predecessor, both of whom are nuns. In so doing, plaintiffs assert, Supreme Court confused the jury as to the identity of the true defendants. We cannot agree.

In this regard, it is well settled that "before a new trial is ordered on this basis it must be shown that the jury was substantially confused by the verdict sheet and the charge and was thus unable to make a proper determination upon adequate consideration of the evidence" (Dunn v. Moss, 193 A.D.2d 983, 985, 598 N.Y.S.2d 350; see, Stilloe v. Contini, 213 A.D.2d 815, 817, 623 N.Y.S.2d 402). Here, Supreme Court charged the jury that although the church and the diocese indeed were the named defendants, because such defendants were corporate entities they necessarily acted through and were responsible for the acts or omissions of their agents and employees, i.e., Glenn and Allie. We perceive no error in this charge and reject plaintiffs' contention that the charge as given prejudiced their case by compelling the jury to return a verdict against two nuns in order to find in favor of plaintiffs.

Nor are we persuaded that the verdict sheet confused the jury. In this regard, the jurors initially answered the first question on the verdict sheet--whether the ground underneath the monkey bars was in a reasonably safe condition--affirmatively, but did so by a 4 to 2 vote. Contrary to Supreme Court's instructions, the jury then determined, by unanimous vote, that Glenn and Allie were not negligent. After receiving appropriate instructions from the court, the jury continued deliberating and again answered the first question affirmatively, this time by a 5 to 1 vote, and declined to disturb its verdict as to Glenn and Allie's negligence--an issue that it was not required to reach in any event. In our view, although the initial 4 to 2 vote may suggest that the jury was unsure regarding...