61 A.D.2d 1054 | N.Y. App. Div. | 1978
Appeals from nine judgments of the Supreme Court in favor of the plaintiffs, entered July 6, July 14, July 29 and October 29, 1976 in Franklin County, upon a verdict rendered at a Trial Term and upon an order of the court apportioning liability. On April 4, 1968, 8 of the 13 plaintiffs were shopping at the Loblaws supermarket in Malone, New York, during the store’s grand opening. The eight were standing under or near a large canopy or valance beneath which were displays of meats and other merchandise. Suddenly, and without warning, the valance which was constructed of two by fours, boarding and plaster board and which was laden with light fixtures and various accoutrements crashed to the floor. As the valance fell, it struck the shoppers, inflicting bodily injuries to each of the eight. Each of the injured commenced an action and separate derivative actions were instituted on behalf of six of the plaintiffs’ spouses. Several different attorneys represented the plaintiffs and, with numerous defendants, it is not surprising that all defendants were not sued in each action. A joint trial was had and at the outset thereof the defendants stipulated on the record that the cross claims would not be submitted to the jury for its determination and sometime later further stipulated to submit the question of the apportionment of damages to the court. Verdicts aggregating $83,000 were awarded to all plaintiffs and ranged from a low of $2,000 to a high of $15,000. Pursuant to stipulation, the court subsequently determined that the defendant Robert Miller Construction, Inc. (hereafter Miller) was 70% liable; that the defendant Lob-laws, Inc. (hereafter Loblaws) was 20% liable and that the defendant K. P. Associates, Inc. (hereafter K. P.) was 10% liable. Although all of the named defendants filed notices of appeal, only Loblaws and Miller perfected their appeals. K. P. filed no brief and did not appear at the oral argument and its appeal has been deemed abandoned. The defendant Miller argues that liability for the injuries rests solely upon K. P. and Loblaws and that the court erred in finding it 70% liable in the Marlow action because it was not a named defendant nor was it impleaded by any other defendant. Together with Loblaws, Miller asserts that the verdicts were excessive. Loblaws additionally contends that it is entitled as a matter of law to be indemnified for its 20% of the damages and that plaintiffs’ attorneys’ conduct of the trial was prejudicial to it. Concerning the attack on the apportionment of the damages our examination of the record leads us to the conclusion that the Judge’s decision was particularly well reasoned and eminently fair. Assessment of the major share of the damages against Miller is entirely consistent with the proof. Miller constructed the valance and there is an abundance of evidence that it was improperly nailed and secured and that Miller made no