It is rare occasion when a new trial is ordered. It is an even rarer occasion when a new trial is ordered because a jury’s failure to find plaintiff was contributorily negligent in causing his own injury was so contrary to the evidence that it should “shock one’s sense of justice.”

In Rolland v Senn, plaintiff was hired as an electrician on a project, and defendant was hired as a landscaper. During the course of his work, the defendant allowed his 10-year-old son to operate a 10,000 lb. track loader, which struck plaintiff, crushed his leg, requiring him to undergo an above-the-knee amputation. During trial, evidence was presented indicating that plaintiff was more than just an electrician on the project, but rather, that he was the project supervisor and even expressly agreed to “take care of” the issue of defendant’s 10-year-old son being on site when other contractors on the project complained. Notwithstanding that testimony, the jury found that plaintiff was not contributorily negligent and awarded him over $20 million in damages. On post-trial motions, the court granted a new trial on the basis that the allocation of 0% negligence of the plaintiff was against the weight of the evidence.

This decision is encouraging to defendants in their pursuit of contributory negligence claims against plaintiffs in personal injury lawsuits.

Thanks to Rachel Freedman for her contribution to this post.