Defense Jury Overruled (NY)

In DiDonna v. Houck, the Second Department granted plaintiff’s motion to set aside a verdict that was contrary to the weight of the evidence.  The plaintiff was struck while crossing the street in a crosswalk by a vehicle driven by the defendant.  After trial, the jury found that the plaintiff was 60% at fault while the defendants were 40% at fault for the accident.

The court found that the plaintiff began crossing the street on a “walk” signal and at all times stayed within the crosswalk.  There was no evidence presented indicating otherwise.  Pursuant to Vehicle and Traffic Law §1112, a pedestrian crossing a roadway during a steady walk signal must be given the right of way.  If a pedestrian partially completes his or her crossing on the walk signal, that pedestrian may proceed on a flashing or steady “don’t walk” signal.

Applying the law, the court could not find a fair interpretation of the evidence that was consistent with the jury’s findings.  As such, the court held that the verdict was contrary to the weight of the evidence, quite a high standard to meet.  The court set aside the verdict and granted a new trial on liability, unless the parties stipulated to a finding that the plaintiff was 5% at fault and the defendants were 95% at fault for the accident.

The verdict is not all that surprising for a case tried in Westchester County, a defendant-friendly venue.  However, the court’s decision is not as predictable.  The court essentially made its own finding on liability, conditioning it with the threat of a new trial.  As seen in this case, a favorable jury verdict, or a favorable venue, will not automatically help a party when the evidence presented does not discharge a party’s liability under the law. However, the defendant will get the benefit of that same jury deciding the damages issues in a bifurcated trial.

Thanks to Anne Mulcahy for her contribution to this post.  If you have any questions, please email Paul at