Lundgren v. McColgin

• Decision Date: 25 May 1983
• Citation: 464 N.Y.S.2d 317,96 A.D.2d 706
• Parties: Dennis H. LUNDGREN, Respondent, v. Robert T. McCOLGIN and Robert Stephens, Appellants. Dennis H. LUNDGREN, Respondent, v. PIPER AIRCRAFT CORPORATION, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 317

464 N.Y.S.2d 317

96 A.D.2d 706

Dennis H. LUNDGREN, Respondent, v. Robert T. McCOLGIN and Robert Stephens, Appellants.

Dennis H. LUNDGREN, Respondent, v. PIPER AIRCRAFT CORPORATION, Appellant.

Supreme Court, Appellate Division,

Fourth Department.

May 25, 1983.

As Amended July 11, 1983.

Bond, Schoeneck & King by Francis Maloney, Syracuse, for McColgin and Stephens.

MacKenzie, Smith, Lewis, Michell & Hughes by Jay Wason, Syracuse, for Piper Aircraft.

Davoli & McMahon, P.C., Syracuse by Marc Grossman, for Lundgren.

Before DILLON, P.J., and HANCOCK, CALLAHAN, DENMAN and GREEN, JJ.

MEMORANDUM:

The jury's answers to written interrogatories are inconsistent with each other and one is inconsistent with the general verdict (CPLR 4111, subd. ). With respect to an emergency override lever in an aircraft manufactured by defendant Piper, the court charged two theories of liability: negligent design and strict products liability. The court submitted written interrogatories to the jury. Interrogatory No. 3 was as follows:

"3. Was the defendant Piper Aircraft Corp. negligent in the design of the override lever, and, if so, was such negligence a proximate cause of the crash and plaintiff's injuries?"

The jury answered "yes."

Interrogatory No. 5 dealt with the strict products liability issue as follows:

"5. Was the override lever, at the time of its sale by Piper, defective, that is, not reasonably safe for its intended use?"

The jury answered "no."

There is no way to reconcile these two answers. The jury could not have concluded that Piper negligently designed the override system and at the same time conclude that it was reasonably safe for its intended use.

Plaintiff submits that the jury could have concluded that Piper breached its duty to warn aircraft owners of the unsafe condition of the mechanism and to notify them of the availability of a later modification. Although discussed in a pre-charge conference, the failure to warn issue was omitted from the court's charge and consequently was not before the jury. Inasmuch as the inconsistency must be reviewed in the context of the court's charge (see Passantino v. Consolidated Edison Co. of N.Y., 54 N.Y.2d 840, 444 N.Y.S.2d 59, 428 N.E.2d 391), it cannot be resolved. Piper raised the issue of inconsistency prior to discharge of the jury and it thus may serve as a predicate for reversal (see Barry v. Manglass, 55 N.Y.2d 803, 806, 447 N.Y.S.2d 423, 432 N.E.2d 125; People v. Johnson, 86 A.D.2d 755, 447 N.Y.S.2d 755).

Defendants' posttrial motion for a court conducted examination of the jurors was properly denied. The general rule is that a jury may not impeach its own verdict (Alford v. Sventek, 53 N.Y.2d 743, 744, 439 N.Y.S.2d 339, 421 N.E.2d 831; see, also, Richardson, Evidence § 407). Professor Siegel has noted that "primary intent of this rule is to...