Lolik v. Big V Supermarkets Inc.

• Decision Date: 15 December 1994
• Citation: 210 A.D.2d 703,620 N.Y.S.2d 167
• Parties: Stephen LOLIK et al., Appellants-Respondents, v. BIG V SUPERMARKETS INC., Doing Business as Shop-Rite, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 167

620 N.Y.S.2d 167

210 A.D.2d 703

Stephen LOLIK et al., Appellants-Respondents, v. BIG V SUPERMARKETS INC., Doing Business as Shop-Rite Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

Dec. 15, 1994.

Grasso, Rodriguez, Putorti, Grasso & Zyra (Mark J. Gaylord, of counsel), Schenectady, for appellants-respondents.

Rowley, Forrest, O'Donnell & Hite P.C. (Richard W. Bader, of counsel), Albany, for respondent-appellant.

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

PETERS, Justice.

Cross appeals from an order of the Supreme Court (Doran, J.), entered March 9, 1993 in Schenectady County, which, inter alia, partially granted plaintiffs' motion to set aside the verdict and granted a new trial on the issue of future damages.

On October 20, 1985, plaintiff Claire Lolik (hereinafter Lolik) did her grocery shopping at a supermarket operated by defendant. Upon her return to obtain a freezer bag, she slipped and fell on both knees as she was exiting the check-out counter. Lolik commenced an action in August 1987 seeking damages for the injuries she sustained, which included a derivative claim interposed by her husband.

Upon determining that defendant was negligent, the jury awarded Lolik $12,000 in damages for her past pain and suffering. No award was made with respect to future pain and suffering and the jury similarly rejected an award on the derivative claim. The jury did, however, determine that Lolik was also negligent and apportioned 40% of the liability to her. Plaintiffs then moved to set aside the verdict with respect to the inadequacy of both past and future damages and the apportionment of liability. Supreme Court partially granted plaintiffs' motion by granting a new trial on the issue of future damages. As to all the relief denied in their posttrial motion, plaintiffs appeal and defendant cross-appeals on the issue of future damages.

It is well settled that a verdict will not be set aside "unless the jury could not have reached the verdict on any fair interpretation of the evidence" (Raucci v. City School Dist. of City of Mechanicville, 203 A.D.2d 714, 715, 610 N.Y.S.2d 653, 654). Given the fact that comparative negligence is within the province of the jury as the trier of fact (see, id.), we find that there is sufficient evidence in the record to support the jury's apportionment of liability. By her own admission, Lolik looked straight ahead and did not look at the floor in front of her as she proceeded from the check-out counter. Had she looked, she would have seen the wet spot on the floor next to her since there was nothing obstructing her view. Since a plaintiff has the duty to use reasonable care to observe his or her surroundings and will be "bound to see what by the proper use of her senses she might have seen" (Weigand v. United Traction Co., 221 N.Y. 39, 42, 116 N.E. 345; see, Weiser v. Dalbo, 184 A.D.2d 935, 936, 585 N.Y.S.2d 124, lv. dismissed 80 N.Y.2d 925, 589 N.Y.S.2d 312, 602 N.E.2d 1128), we find that there was no basis to overturn the jury's apportionment of liability (see, Hodges v. City of New York, 195 A.D.2d 269, 599 N.Y.S.2d 586).

Plaintiffs' argument regarding the inadequacy of the award for past pain and suffering is similarly unavailing. The amount of damages to be awarded is a question of fact for the jury (see, Rodriguez v. City of New York, 191 A.D.2d 420, 594 N.Y.S.2d 61), with great deference accorded to the jury's interpretation of the evidence (see, Levine v. East Ramapo Cent. School Dist., 192 A.D.2d 1025, 1025-1026, 597 N.Y.S.2d 239) "even if there is evidence leading to a contrary conclusion" (Raucci v. City School Dist. of City of Mechanicville, supra, 203 A.D.2d at 716, 610 N.Y.S.2d at 654). Lolik's treating physician testified that Lolik suffered from an arthritic condition which had been developing gradually and became aggravated by the fall. Medical testimony by both Lolik's doctor and the orthopedic surgeon testifying on behalf of defendant was that such arthritic condition allegedly triggered by the trauma to Lolik's knee could have, as of the time of trial, manifested itself even without the accident in light of Lolik's unrelated development of arthritis in other areas of her body (see generally, Raucci v. City School Dist. of City of Mechanicville, supra ). Testimony further revealed that in August 1987, Lolik suffered additional injury to her knee when she was thrown to the ground by her husband. Accordingly, noting that a plaintiff can only recover for those injuries that were actually caused by defendant's negligence (see, Kirschhoffer v. Van Dyke, 173 A.D.2d 7, 9, 577 N.Y.S.2d 512), we do not find that the $12,000 award for past pain and suffering "deviate[d] materially from what would be reasonable compensation" (CPLR 5501 [c].

Addressing next the granting by Supreme Court of a new trial on the issue of future damages, we note the apparent inconsistency in finding permanency and then failing to make an award for future damages (see, e.g., Laylon v. Shaver, 187 A.D.2d 983, 984, 590 N.Y.S.2d 615). However, keeping in mind that Lolik can only recover for those damages actually caused by defendant's negligence (see, Kirschhoffer v. Van Dyke, supra, 173 A.D.2d at 9, 577 N.Y.S.2d 512), the jury could have concluded that while the fall rendered her arthritis symptomatic, evidence supported a finding that the pain now suffered from the arthritis could have occurred even without the fall. Accordingly, we find that although a trial court has the power to set aside a jury's verdict when contrary to the weight of the evidence (see, CPLR 4404 [a], such court must first conclude "that there is simply no valid line of reasoning and permissible inferences which could possibly lead rational men to the conclusion reached by the jury on the basis of the evidence presented" (Cohen v. Hallmark Cards, 45 N.Y.2d 493, 499, 410 N.Y.S.2d 282, 382 N.E.2d 1145). The test therefore becomes "not whether a jury erred in weighing the evidence, but whether any viable evidence exists to support its verdict" (Raucci v. City School Dist. of City of Mechanicville, supra, 203 A.D.2d at 715, 610 N.Y.S.2d at 654; see, Lachanski v. Craig, 141 A.D.2d 995, 530 N.Y.S.2d 648). Based upon the evidence here, we find that the jury's verdict as to...