Hill v. FR Tripler & Co., Inc.

• Decision Date: 15 November 1994
• Docket Number: No. 89 Civ. 5917 (LAK).,89 Civ. 5917 (LAK).
• Citation: 868 F. Supp. 593
• Parties: Roger HILL, Plaintiff, v. F.R. TRIPLER & CO., INC., Defendant.
• Court: U.S. District Court — Southern District of New York

868 F. Supp. 593

Roger HILL, Plaintiff, v. F.R. TRIPLER & CO., INC., Defendant.

No. 89 Civ. 5917 (LAK).

United States District Court, S.D. New York.

November 15, 1994.

Robert V. Marrow, Matthew C. Cocca, Salon, Marrow & Dyckman, for plaintiff.

Suzanne M. Halbardier, Barry, McTiernan & Moore, for defendant.

OPINION

KAPLAN, District Judge.

This personal injury case was tried before a jury on September 21, 1994 through September 28, 1994. Defendant now moves to set aside the verdict and judgment as excessive and against the weight of the credible evidence, to set aside the verdict as being based on improper evidence and argument, for judgment as a matter of law, and for a stay of execution of the judgment pending decision of this motion.

In brief summary, the evidence showed that plaintiff was shopping in defendant's retail store at Madison Avenue and Forty-sixth Street. He sought to leave through a pair of metal-framed glass doors which formed part of the main entrance to the store. The right-hand door had been locked by defendant because it was not operating properly. No sign or other warning was posted to alert prospective users. When plaintiff sought to push the door open, the door did not yield. His head and left knee made contact with the door. The door shattered, and shards of glass pierced the left knee. Plaintiff, then an athletic twenty-six year old man, has had two operations on the knee, continues to have pain and discomfort as well as some permanent damage to the joint, and cannot engage in a number of his previous activities without severe pain. The jury returned a special verdict finding defendant negligent, finding that plaintiff had not been contributorily negligent, and assessing the damages at $400,000.

Industrial Code Rule 47

Defendant's principal argument is that the Court erred in submitting to the jury plaintiff's contention that defendant had violated New York Industrial Code Rule 47 and that this might be considered by the jury as some evidence of negligence. (Halbardier Aff. ¶¶ 4-6)

Industrial Code Rule 47, 12 N.Y.C.R.R. §§ 47.1 et seq., provides in substance that "transparent safety glazing material" must be used in glass doors newly installed after January 1, 1968 and as replacement glass installed in existing glass doors after January 1, 1969. 12 N.Y.C.R.R. § 47.11 (1967). "Transparent safety glazing material" is defined as follows: "Materials which will clearly transmit light and also minimize the possibility of cutting or piercing injuries resulting from breakage of the material. Materials covered by this definition include laminated glass, tempered glass (also known as heat-treated glass, heat-toughened glass, case-hardened glass or chemically tempered glass), wired glass, and rigid plastic." Id. § 47.5(j). Plaintiff contended that the door here in question was newly installed after January 1, 1968 and that the door did not contain "transparent safety glazing material." Defendant argues that there was no competent evidence that the door did not contain "transparent safety glazing material."¹

The only direct evidence concerning the nature of the glazing material in the door was the testimony of Mr. Jones, the manager of the store at the time of the accident. Mr. Jones was asked at his deposition whether the door was made of plate glass or safety glass. He responded "plate glass." This testimony was received in evidence without objection. Mr. Jones thereafter was called as a witness, and defendant did not ask him to elaborate on his deposition testimony, or to explain what he meant by "plate glass," or what the basis for his deposition testimony had been.² In addition, there was evidence that the door glass broke into shards, some of which pierced plaintiff's knee. Plaintiff maintained that the manner in which the glass broke and the nature of the injury were circumstantial evidence that the material did not comply with the Rule.

Defendant argues that Mr. Jones was not an engineer and that he did not specifically testify that the door did not contain "transparent safety glazing material" as defined by the Rule. (Halbardier Aff. ¶ 4) But Mr. Jones professed no lack of knowledge when asked whether the door was safety glass or plate glass. Defendant did not question his competence to testify on the subject when the evidence was offered. The regulatory definition of "transparent safety glazing material" — in substance, material that will transmit light but resist shattering — is extremely general and, save for certain of the illustrative examples contained in the definition, entirely non-technical. Mr. Jones' answer implicitly asserted, or could be viewed as having asserted, that plate glass and safety glass were two different materials, that he knew the difference, and that this door did not contain safety glass.³

Plaintiff was entitled to have submitted to the jury every theory supported by evidence which, if believed, would make out negligence. See, e.g., Carvel Corp. v. Diversified Management Group, 930 F.2d 228, 230 (2d Cir.1991). Here, Mr. Jones' answer was susceptible of the interpretation that the door did not contain "safety glass." The jury, if it accepted that interpretation, was entitled to conclude that the door did not contain "materials which will clearly transmit light and also minimize the possibility of cutting or piercing injuries resulting from breakage of the material" and, in consequence, that defendant violated Industrial Code Rule 47. This view is reinforced by the testimony that the glass broke into shards and by the nature of plaintiff's injury — cutting and piercing.⁴

The jury was charged that the question whether the door contained "transparent safety glazing material" within the meaning of the Rule was for it to determine. Counsel were entirely at liberty to argue both the appropriate interpretation of Mr. Jones' testimony and whether, if plaintiff's interpretation were accepted, it should be taken as establishing that Industrial Code Rule 47 was not complied with. In my view, the submission of these matters was appropriate. Moreover, in view of the clear evidence of negligence given defendant's admission that there was no sign or other warning that the glass door was locked, any error in charging the Industrial Code Rule 47 theory was harmless. See Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir.), cert. denied, 479 U.S. 884, 107 S.Ct. 275, 93 L.Ed.2d 251 (1986) (harmless error analysis applied to faulty jury instructions in civil cases); see Neubauer v. City of McAllen, Tex., 766 F.2d 1567, 1575 (5th Cir.1985) (reversible error when jury instruction made it possible to find against a party on a ground for which there is no evidence).

Subsequent Remedial Measures

Defendant asserts that "there were repeated arguments in questioning by plaintiff's counsel during the trial to the fact that a repair was made to the door after plaintiff's accident." (Halbardier Aff. ¶ 7) This, it asserts, violated Fed.R.Evid. 407 and requires a new trial.

There was no evidence of any repair of a type that reasonably could have been construed as an admission of a previous unsafe condition. If there was a reference to repair of the door — and the Court recalls none — it would have been harmless even if timely objection had been made. No one reasonably could expect that the owner of a store on Madison Avenue would fail to repair a broken glass door giving access to the establishment. There certainly would have been no prejudice to defendant.

The Vicarious Admissions

Plaintiff and a passerby who went to his aid, Frank Reyes, both testified to statements allegedly made while plaintiff lay in the store vestibule waiting for an ambulance by persons believed by them to be store employees. The first was a response to a request by the passerby for a tie to assist in binding plaintiff's wound, the response being in substance that the person in question had no authority to give Mr. Reyes a tie but that he could buy one for $75. The second was an inquiry by one of two persons standing in the vestibule to the other as to why no warning sign had been placed on the locked door.

Defendant argues that both statements should have been excluded because there was no evidence that the employees in question had authority to speak for the defendant. It argues also that the first statement — that concerning the tie — was irrelevant and prejudicial. (Halbardier Aff. ¶¶ 8-11)

Defendant's reliance on the "speaking agent" rule is misplaced here. Fed.R.Evid. 801(d)(2)(D) provides in substance that a statement is not hearsay if it is offered against a party and is "a statement by the party's agent or servant concerning a matter within the scope of the agency or employment, made during the existence of the relationship ..." Hence, the plaintiff was not required to establish that the declarants were authorized to speak on behalf of the defendant.

As defendant questions only whether the statements were made by persons authorized to speak for the defendant (see Halbardier Aff. ¶¶ 8-11), there is no need to pass on whether requirements of Rule 801(d)(2)(D) were satisfied. In an abundance of caution, however, I note that I am entirely satisfied that they were.

The existence of the agency at the time of the statements and the scope of employment are preliminary matters for the trial court under Fed.R.Evid. 104(a). See In Re Coordinated Pretrial Proceedings, 906 F.2d 432, 458 (9th Cir.1990), cert. denied, 500 U.S. 959, 111 S.Ct. 2274, 114 L.Ed.2d 725 (1991). The trial court is not bound by the rules of evidence, and may consider the proffered statements themselves in making such determinations. Fed.R.Evid. 104(a); In Re Coordinated Pretrial Proceedings, 906 F.2d at 458.

Here, there was ample evidence as to the necessary foundation. Both plaintiff and Mr. Reyes said that the statements in question both were made by one of two persons dressed in business attire who came into...