Ohdan v. City of New York ( 2000 )

OPINION OF THE COURT

Saxe, J.

In the early evening rush hour of April 28, 1992, on West 48th Street between Broadway and Seventh Avenue in midtown Manhattan, New York City Traffic Enforcement Agent Audrey Jolly was performing her customary traffic duties of ticketing illegally parked cars and ordering cars to be moved from designated No Parking or No Standing Zones. While patrolling this area, Agent Jolly came upon a car illegally parked in a No Standing Zone. Defendant Jose Rodriguez was waiting in the car for his nephews, who were apparently visiting a nearby music store. Agent Jolly approached the car and told Mr. Rodriguez to move it or else a ticket would be issued. Conflicting testimony was offered at trial as to the agent’s voice level in her directives to Mr. Rodriguez, and as to the possibility of a language barrier between Mr. Rodriguez and Agent Jolly.

Nevertheless, it was established that after this first warning, Agent Jolly continued on down the street in order to perform her official functions, and Mr. Rodriguez went inside the store to locate his nephews, but was unsuccessful, and returned to the car. When Agent Jolly returned a few minutes later and saw the car still parked illegally, she reportedly yelled at Mr. Rodriguez, banged on the car and again ordered him to move. Although he possessed neither a driver’s license nor any knowledge of how to operate an automobile, Mr. Rodriguez nevertheless attempted to obey Agent Jolly’s orders, and in the process first backed the car onto the sidewalk, then caused it to tear across the street, crashing into a storefront and injuring several individuals.

These injured individuals brought suit not only against Mr. Rodriguez, but also against Agent Jolly, and through her, her employer, the City of New York and its Department of Transportation (the City defendants). Following a jury trial on the issue of liability, the jury found against Mr. Rodriguez; however, it held in favor of the City defendants on the issue of liability, finding that while they were negligent, their negligence was not a proximate cause of the accident. Plaintiff Yoriko Ohdan appeals from the dismissal of the claims against the City defendants, asserting that this portion of the verdict is against the weight of the credible evidence. The crux of her argument is that once the traffic agent was found to have acted negligently, it was irrational to conclude that this negligence was not a proximate cause of the accident.

A jury verdict is normally accorded great weight (see, Mertsaris v 73rd Corp., 105 AD2d 67, 75). “[T]he discretionary power to set aside a jury verdict and order a new trial must be exercised with considerable caution, for in the absence of indications that substantial justice has not been done, a successful litigant is entitled to the benefits of a favorable jury verdict” (Nicastro v Park, 113 AD2d 129, 133). Before a verdict may be set aside when the weight of the evidence is challenged, the court must be able to conclude that the jury could not have reached its verdict on any fair interpretation of the evidence (see, supra, at 134; Johnson v New York City Health & Hosps. Corp., 246 AD2d 88, 94, lv denied 92 NY2d 816).

Although the dissent terms the jury’s findings “incoherent,” the verdict can as easily be said to have been arrived at by thoughtful and careful analysis.

■ To find negligence, the jury had only to conclude that (1) the City’s traffic enforcement agent had failed to exercise that degree of care which a reasonably prudent person would have exercised in the circumstances, and (2) a probable risk of harm was reasonably foreseeable from this failure (see, 1A PJI 2:10, 2:12). The exact injury that occurred does not have to have been foreseeable (1A PJI 2:12; see, Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315). The foreseeable harm, as found by the jury, could have differed from the harm that actually occurred.

For instance, the requisite foreseeable harm from the agent’s conduct could have been something entirely different, such as the possibility of emotional or psychological harm to the individual who was being verbally browbeaten. Or, the foreseeable harm might have been the possibility that a driver, although licensed and possessing the requisite skills, would be so upset by the uncivil treatment that he would fail to take normal precautions in attempting to abide by the officer’s commands, causing a collision as a result. The jury need not have found it foreseeable that an unlicensed driver who had no knowledge of how to operate an automobile, such as Mr. Rodriguez, would foolishly attempt to drive the car despite his complete lack of skills or experience. On the contrary, the jury might have reasoned that Agent Jolly could properly assume that only a person who knew how to drive a car would undertake to do so in response to her orders. Indeed, it can be argued that Mr. Rodriguez’s conduct was so foolish and risky as to be entirely unforeseeable.

Although there is just a fine line between foreseeing harm from licensed drivers driving carelessly and foreseeing harm from unskilled drivers recklessly attempting to operate a car, it is a distinction that could have been drawn by the jury. As such, this distinction, which the dissent terms “artificial,” presents a sufficient basis upon which to permit the verdict to stand.

The foregoing discussion of alternative lines of reasoning on the question of foreseeability is offered merely to illustrate that there exist numerous fair interpretations of the evidence upon which the jury could have based its finding of negligence; not all of them lead inexorably to a finding of proximate cause.

The issue of whether a defendant’s negligence was a proximate cause of an accident is separate and distinct from the negligence determination. A defendant may act negligently without that negligence constituting a proximate cause of the accident (see, Price v New York City Hous. Auth., 92 NY2d 553; Gouna v O’Neill, 149 SW2d 138 [Tex]).

In order to find that defendant’s negligence was a proximate cause of the harm caused to plaintiff, the jury must find that the negligence was a substantial factor in bringing about the injury (1A PJI 2:70). There may be one, or more than one, substantial factor (1A PJI 2:71). Based upon the evidence, the jury was entitled to conclude that although both Agent Jolly and Mr. Rodriguez had behaved in a negligent manner, Mr. Rodriguez’s negligent conduct alone was the only substantial factor in bringing about the injury. Indeed, the jury could rationally have concluded that no reasonable person in the position of Agent Jolly would have believed there to be any real probability that an individual with absolutely no knowledge of how to operate a car would attempt to do so in response to her verbal commands. That a few other individuals have in other instances acted as foolishly (see, Maloney v Scarfone, 25 AD2d 630; Persaud v City of New York, 267 AD2d 220), does not render such conduct probable or foreseeable (cf., Egan v A.J. Constr. Corp., 94 NY2d 839).

Plaintiff’s reliance on Maloney v Scarfone (25 AD2d 630, supra) is misplaced. There, in a similar basic fact pattern, an unskilled individual had attempted to obey the orders of a traffic agent and move the car he was in, ultimately killing a pedestrian. However, the critical point in that case was that the young man who operated the car testified at trial that he had informed the traffic agent of his inability to drive (supra, at 630). In contrast, there is no evidence supporting the conclusion that Agent Jolly knew (or should have known) that Mr. Rodriguez was unlicensed, since the only evidence on the point reflected that he conveyed this information in Spanish.

In Maloney v Scarfone (supra), the jury arrived at a verdict against the City; however, on appeal, this Court ordered a new trial. A new trial was directed because the City had erroneously assumed that regardless of its own agent’s conduct, the negligence of the driver of the vehicle was enough to constitute an intervening act absolving the City of liability as a matter of law; as a result of that assumption, the City had completely neglected to develop the strong evidence available to contradict the driver’s assertions that he had informed the officer of his inability to drive (25 AD2d, at 631). Nothing in this holding prevents a conclusion that the negligence of the driver was the sole proximate cause of the accident. Indeed, in Maloney, it was apparent that if, upon retrial, the jury rejected the driver/ defendant’s testimony that he informed the officer of his inability to drive, the jury could then legitimately hold against the driver/defendant but not against the City. In the present case, the jury arrived at exactly such findings upon the evidence before it.

Nor does the case of Persaud v City of New York (267 AD2d 220, supra) require a different result. It holds that liability may be imposed on a police officer for directing a person sitting in the passenger seat to move a car, and that the issue of whether the officer should be held liable was one of fact to be left to the trial jury. In the case before us, this issue of fact was presented to the jury, and the jury, upon its view of the evidence before it, rendered its factual determination that the City was not liable.

The jury verdict in favor of the City of New York and its agents may be supported by a fair interpretation of the evidence, and must therefore be permitted to stand.

Accordingly, the judgment of the Supreme Court, New York County (Edward Lehner, J.), entered May 27, 1999, which, following a jury trial, awarded judgment dismissing the action as against defendant City of New York, pursuant to the jury verdict as to liability, should be affirmed, without costs.