Hackett v. Franz

In an action to recover damages for personal injuries sustained by the infant plaintiff on the theories of negligence, trespass, assault and battery (the first five causes of action) and for medical expenses, etc., incurred by his father (sixth cause of action), (1) the infant defendant appeals, as limited by his brief, from so much of an interlocutory judgment of the Supreme Court, Suffolk County, dated September 11, 1972, as is against him and in favor of plaintiffs on the issue of liability on the third cause of action (assault), upon a jury verdict at a trial limited to the issues of liability on all the causes (the trial court had directed that the trespass and battery causes — the second and fourth causes, respectively — 'be merged with the third cause), and (2) plaintiffs cross-appeal from the remainder of the judgment, namely, so much thereof as is (a) in favor of defendants Samuel and Marilyn Franz, the infant defendant’s parents, on all the causes, upon the trial court’s direction of a verdict, and (b) in favor of the infant defendant on the first cause of - action (his alleged negligence), upon the trial court’s dismissal thereof at the close of plaintiffs’ case. Interlocutory judgment reversed and new trial granted as to all the parties on all the issues, on the law and in the interests of justice, with costs to abide the event. In our opinion, the evidence required submission of the ease to the jury on the issues of liability on all the causes of action; and, although the jury’s answer to the first interrogatory which the trial court submitted to them on the third cause of action as against the infant defendant was inconsistent with the general verdict on that cause, the trial court failed to comply with CPLR 4111 (subd. [c]). Rabin, P. J., Hopkins, Mundeiy Latham and Shapiro, JJ., concur.