Leonard v. Unisys Corp.Leonard v. Unisys Corp.
Appeals (1) from an order of the Supreme Court (Harris, J.), entered October 26, 1995 in Albany County, which, inter alia, denied defendants’ motions to set aside the verdict, and (2) from a judgment of said court, entered November 27, 1995 in Albany County, upon a verdiсt rendered in favor of plaintiffs.
Defendants raise the following questions on this appeal: (1) the adequacy of Supreme Court’s jury charge relative to the apportionment of fault and its instructions regarding workers’ сompensation and disability benefits, (2) the court’s ruling denying certain defendants indemnification against defendant Human Factor Technologies, Inc. (hereinafter HFT), (3) excessiveness of the jury awards for pain and suffering and lоss of consortium, (4) the inconsistency of the jury’s verdict, and (5) error in evidentiary rulings. The appeal stems from a fall by Linda M. Leonard in May 1987 when the back support of the chair she was using at work broke, causing her to fall baсkwards onto the floor, severely injuring her back and allegedly complicating her preexisting back problems. Defendants include Leonard’s employer—the Department of Motor Vehicles (hereinafter DMV)—and HFT, which imported the chair and sold it to defendant Burroughs Corporation. Burroughs, in turn, sold the chair to DMV in May 1986, which HFT shipped directly to DMV in June 1986 pursuant to an agreement between Burroughs and HFT. During the time of the sale of the chair, a division of Burroughs was being sold to
Leonard returned to work full time on June 29, 1987 but, due to continuing back pain which was exacerbated by lifting a stack of computer paper, she left permanently in June 1989. She had back surgery in Octоber 1989 which failed to alleviate her pain. In March 1990, Leonard and plaintiff commenced this lawsuit sounding in negligence, strict products liability, breach of implied and express warranties and misrepresentation agаinst Burroughs, Unisys and Standard (hereinafter collectively referred to as defendants) and HFT. HFT cross-claimed against defendants for indemnification and/or contribution. Defendants similarly cross-claimed against HFT.
A trial ensued in June 1995. Thе jury found, in answer to interrogatories submitted to them, that (1) HFT, Burroughs and Standard were strictly liable based on strict products liability, (2) neither defendants nor HFT had breached the implied warranty of merchantability, (3) defendants were not guilty оf negligence, (4) HFT’s negligence was not a substantial factor in Leonard’s injuries, and (5) HFT was 50% at fault and Burroughs and Standard were each 25% at fault for Leonard’s injuries. The jury awarded Leonard $1,016,000 for past pain and suffering and $508,000 for future pain and suffering (based on her life expectancy of four years from the date of the verdict).
Supreme Court granted the motion by Leonard and plaintiff for a directed verdict against Unisys, previously reserved, finding that Unisys was liable by reason of being a successor to Burroughs by merger. The court granted the cross claim by defendants for indemnification from HFT for the total jury award, as well as the renewed motion by Leonard and plaintiff fоr a directed verdict against all defendants on the implied warranty of merchantability claim. The indemnity ruling was vacated by decision dated October 24, 1995 and the jury’s apportionment of liability was reinstated by judgment enterеd November 27, 1995. The court ruled that a party found liable
After reducing the jury award by collateral sources, judgment was entered against defеndants and HFT, jointly and severally, on the causes of action for strict products liability and breach of implied warranty of merchantability.
Addressing the allegations of error, we first address defendants’ challenge to the adequacy of Supreme Court’s instruction to the jury on the delineation of percentage of total fault between defendants and HFT. The jury was instructed that total fault meant "regardless as to whether [such fault] was [by reason of] striсt products liability, breach of implied warranty of merchantability, or negligence, or a combination thereof’. The record discloses that defendants failed to preserve this issue for our review by not entering аny objection to the final format of the verdict sheet as to apportionment and also in not challenging the court’s instruction on the issue. Further, after the jury verdict was returned, defendants did not seek clarificatiоn of the verdict rendered. In view thereof, we deem the question of improper instruction by the court unpreserved and decline to address it (see, Osborne v Schoenborn,
Next we address Supreme Court’s denial of the cross motion by defendants to set aside the verdict as to apportionment and, alternatively, to set it aside as against the weight of evidence. Defendants argue that they were not actively responsible for any of the alleged theories of strict liability. On the record, we find that it is impossible to determine which of the three theories of fault underlying strict products liability (i.e., defective design, defective assembly or failure to warn) the jury found relevant as to defendants. It is impossible to determine from the state of the record if defendants were found not to be "actively” responsible insofar as the verdict sheet failed to elicit such information. In view of defendants’ fаilure to request clarification after the verdict was rendered regarding the specific theory of strict liability that the jury found persuasive, we deem the question waived and decline to consider it. Nor can we say that the verdict could not have been reached on any fair interpretation of the evidence. We thus find it not to
On the issue of Supreme Court’s October 24, 1995 indemnity ruling, defendants, conceding that no contractual indеmnity is applicable versus HFT, nonetheless press their entitlement to indemnity from HFT on the basis of equity. It is urged that equity demands indemnification from HFT to prevent HFT’s unjust enrichment in that HFT is the primary culprit in Leonard’s injury. The logic of the argument unfortunately disintegrates in view of the indefiniteness of the basis for the jury’s verdict which was neither properly objected to nor clarified. Insofar as it is conceded that defendants are not entitled to contraсtual indemnity and because it is unclear which theory of liability the jury found persuasive, Supreme Court correctly denied defendants indemnification from HFT.
We find without merit the contention that the verdict for past pain and suffеring and future pain and suffering is excessive. The standard by which a verdict is to be measured as to excessiveness is set out in CPLR 5501 (c). The contention of excessiveness raises the question—does the verdict deviate materially from what would be reasonable compensation? Defendants and HFT urge that the verdict is based on sympathy and that the jury’s verdict ignores the charge to only compensate Leonard for injuries caused by hеr fall. They also claim that the award for future pain and suffering is excessive because Leonard died eight months after the award and never reached the four-year life expectancy testified to at triаl. We do not find any of these arguments to be persuasive.
Before the accident, Leonard was a vibrant, hard-working woman. She actively worked a turkey farm with her husband, doing difficult manual labor, and she was a devoted firefighter who served as an emergency medical technician, responding to 75% of fire calls. She was socially active in her church, as a parishioner and teacher in the 4-H program. She gardened and cаnned food, mowed her three acres of land with a push mower, went hunting and fishing with plaintiff and was the primary caretaker for her grandmother. The fall left Leonard greatly debilitated because of unremitting pain in her shoulder, back and hip which required painkillers, therapy and frequent bed rest. All her activities virtually ceased. The impact of the injury on her life was profound and devastating. During her back surgery, a fracture of the lumbar spine in thе facet joint was discovered which was attributed, in all likelihood, to the fall. In view of her serious and grave injury, we find that the award for past pain and suffering was not excessive (compare,
We find, as well, that the derivative award does not deviаte materially from what would be reasonable compensation (see, e.g., Walsh v State of New York, supra, at 940). Plaintiff lost the companionship which he had shared with Leonard in all phases of a busy and active life due to her injury. Plaintiff and the children were forced to take up the duties that Leonard had once fulfilled as farmer, housekeeper, cook, caretaker of the family and good companion to her spouse. The loss indeed was gravе, supporting the value placed on it by the jury.
Defendants’ request for a new trial on the basis of an inconsistent verdict is likewise rejected. This argument is based on the jury’s award to Leonard for the expenses of future rehabilitation for 51/2 years while granting her an award for future pain and suffering based on a four-year life expectancy. When a verdict is inconsistent it can only be remedied by the trial court’s order to the jury to recоnsider the inconsistency or by the grant of a new trial (see, CPLR 4111 [c]). Absent a timely motion for clarification when the verdict was returned, followed by the failure to preserve the issue by posttrial motion to set aside the verdict (see, Grzesiak v General Elec. Co.,
We have considered defendants’ challenges to various evidentiary rulings and find them to be without merit аnd, in any event, harmless (see, CPLR 2002). As to Supreme Court’s charge as to disability benefits and workers’ compensation, we find the instruction to be essentially in accordance with the Pattern Jury Instructions (see, PJI 1:65.1 [1996 Supp]); no error was committed in this regard.
Mercure, Crew III, Yesawich Jr. and Peters, JJ., concur. Ordered that the order and judgment are affirmed, without costs.
Notes
. The record disclosed that Leonard had been diagnosed with metastatic breast cancer in September 1991.
. Supreme Court corrected a mathematical error of $10,000 in the jury verdict sheet when awarding the total amount of past damages to Leonard.