Jury Verdict Set Aside Twice in Assault Case (NY)

In Killon v. Parrota, the plaintiff and defendant were involved in a nasty altercation, which resulted in defendant striking plaintiff in the face with a baseball bat.  After trial, the jury returned a verdict in favor of defendant, finding that he was justified in his use of deadly physical force because plaintiff was the initial aggressor, and defendant was acting in self-defense.

However, the Appellate Court, Third Department, set aside the verdict and remanded the case for a new trial.  It is rare for a New York appellate court to take such action,  and the standard is that “verdict could not have been reached on any fair interpretation of the evidence.”  The Court found that that “[d]espite plaintiff’s prior threatening phone calls and the evidence that plaintiff was the first of the two to swing his club, there is no dispute that defendant drove to plaintiff’s home and then advanced on plaintiff’s front porch with a bat in his hand while demanding a fist fight” and therefore he was not entitled to a justification defense.

At the second trial, the jury returned a liability in favor plaintiff.  Plaintiff also established that his jaw was broken in six places, and due to complications after an initial surgery,  seven more procedures had to be performed with the prospect of future surgery.  The jury awarded $225,000 in damages, but this time the trial court set aside the damage verdict.

The Third Department agreed that the damages were properly set aside and that the jury did not property consider the claim for future damages.  The Court looked to awards in other cases for similar injuries and agreed that a new trial needed to be held as to damages unless both parties stipulated that the award would be $350,000.

Thanks to Betsy Silverstine for her contribution to this post and please write to Mike Bono for more information.