Practice point: The Appellate Division found no basis for setting the jury verdict and affirmed the judgment in favor of defendant Transit Authority. The jury's verdict, finding that defendant was not negligent, is
supported by a fair interpretation of the evidence, given the evidence that, among
other things, none of the other passengers fell
In addition, defense counsel's statements during summation as to why the bus driver may have stopped as it did were fair comments on the evidence. Plaintiff's arguments regarding the prejudicial effect of the bus driver's absence at trial are unavailing. The court instructed the jury that it could accept or reject defendant's explanation for the driver's absence, and permitted the jurors to draw a negative inference from the absence. Defendant did not improperly use the driver's absence as both a sword and a shield.
Student note: Even if it were error to charge the emergency doctrine as
part of negligence, plaintiff failed to adequately preserve its
objection.
Case: DiGennaro v. New York City Tr. Auth. (MTA), NY Slip Op 04584 (1st Dept. 2015)
Here is the decision.
Tomorrow's issue: Consolidation, joint trials, and venue.
