MacKILLOP v. CITY OF SYRACUSE (2008)

Plaintiff commenced this action seeking damages for injuries that she sustained in a motor vehicle accident allegedly caused by defendant's negligent design, construction and maintenance of a traffic intersection and negligent placement of a traffic sign in that intersection.   The jury returned a verdict of no cause of action, and Supreme Court denied plaintiff's post-trial motion to set aside the verdict and for a new trial on the grounds that the verdict is against the weight of the evidence, that during deliberations the jury was improperly given photographs that were not admitted in evidence, and that the verdict sheet was “prejudicially confusing.”   We affirm.

 Contrary to plaintiff's contention, the verdict is not against the weight of the evidence, i.e., the evidence did not so preponderate in favor of plaintiff that the verdict could not have been reached on any fair interpretation of the evidence (see generally Lolik v. Big V Supermarkets, 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163).   Although defendant admitted that it was negligent in using a certain road sign in the intersection, the jury found that such negligence was not a substantial factor in causing the accident.  “A jury finding that a party was negligent but that such negligence was not a proximate cause of the accident is ․ against the weight of the evidence only when the issues are so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Skowronski v. Mordino, 4 A.D.3d 782, 783, 771 N.Y.S.2d 625 [internal quotation marks omitted];  see McCulley v. Sandwick, 43 A.D.3d 624, 626, 841 N.Y.S.2d 392, appeal dismissed 9 N.Y.3d 976, 848 N.Y.S.2d 14, 878 N.E.2d 596), and that is not the case here (see generally Schaefer v. Guddemi, 182 A.D.2d 808, 809, 582 N.Y.S.2d 803).

 We reject the further contention of plaintiff that she was prejudiced by the fact that the jurors were permitted to view photographs that were not admitted in evidence.  “The rule is well settled that the delivery of papers to the jury not in evidence ․ when or after it retires for deliberation ․ [voids] the verdict unless the matters contained therein are not prejudicial or if it appears that they were not read [or viewed] by any [members] of the jury” (Guntzer v. Healy, 176 App.Div. 543, 544, 163 N.Y.S. 513). Here, the papers delivered to the jury were enlarged photographs of vehicles in the intersection, and the court properly concluded that plaintiff failed to establish that the photographs were prejudicial to her (cf. Razza v. Sanchez-Roda, 173 A.D.2d 594, 570 N.Y.S.2d 272).   In any event, the court's inquiry into the matter established that the only juror who actually viewed the photographs in fact disregarded them (see Guntzer, 176 App.Div. at 544, 163 N.Y.S. 513).

 Finally, as plaintiff correctly conceded in her post-trial motion papers, she failed to object to the verdict sheet, and she thus failed to preserve for our review her contention concerning the verdict sheet (see Halbreich v. Braunstein, 13 A.D.3d 1137, 787 N.Y.S.2d 530, lv. denied 5 N.Y.3d 704, 801 N.Y.S.2d 1, 834 N.E.2d 780).

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

MEMORANDUM: