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HILL v. F.R. TRIPLER & CO.

November 15, 1994

ROGER HILL, Plaintiff,
v.
F.R. TRIPLER & CO. INC., Defendant.



The opinion of the court was delivered by: LEWIS A. KAPLAN

 KAPLAN, District Judge.

 This personal injury case was tried before a jury on September 21, 1994 through September 28, 1994. Defendant now moves to set aside the verdict and judgment as excessive and against the weight of the credible evidence, to set aside the verdict as being based on improper evidence and argument, for judgment as a matter of law, and for a stay of execution of the judgment pending decision of this motion.

 In brief summary, the evidence showed that plaintiff was shopping in defendant's retail. store at Madison Avenue and Forty-sixth Street. He sought to leave through a pair of metal-framed glass doors which formed part of the main entrance to the store. The right-hand door had been locked by defendant because it was not operating properly. No sign or other warning was posted to alert prospective users. When plaintiff sought to push the door open, the door did not yield. His head and left knee made contact with the door. The door shattered, and shards of glass pierced the left knee. Plaintiff, then an athletic twenty-six year old man, has had two operations on the knee, continues to have pain and discomfort as well as some permanent damage to the joint, and cannot engage in a number of his previous activities without severe pain. The jury returned a special verdict finding defendant negligent, finding that plaintiff had not been contributorily negligent, and assessing the damages at $ 400,000.

 Industrial Code Rule 47

 Defendant's principal argument is that the Court erred in submitting to the jury plaintiff's contention that defendant had violated New York Industrial Code Rule 47 and that this might be considered by the jury as some evidence of negligence. (Halbardier Aff. PP 4-6)

 Industrial Code Rule 47, 12 N.Y.C.R.R. §§ 47.1 et seq., provides in substance that "transparent safety glazing material" must be used in glass doors newly installed after January 1, 1968 and as replacement glass installed in existing glass doors after January 1, 1969. 12 N.Y.C.R.R. § 47.11 (1967). "Transparent safety glazing material" is defined as follows: "Materials which will clearly transmit light and also minimize the possibility of cutting or piercing injuries resulting from breakage of the material. Materials covered by this definition include laminated glass, tempered glass (also known as heat-treated glass, heat-toughened glass, case-hardened glass or chemically tempered glass), wired glass, and rigid plastic." Id. § 47.5(j). Plaintiff contended that the door here in question was newly installed after January 1, 1968 and that the door did not contain "transparent safety glazing material." Defendant argues that there was no competent evidence that the door did not contain "transparent safety glazing material. *fn1"

 The only direct evidence concerning the nature of the glazing material in the door was the testimony of Mr. Jones, the manager of the store at the time of the accident. Mr. Jones was asked at his deposition whether the door was made of plate glass or safety glass. He responded "plate glass." This testimony was received in evidence without objection. Mr. Jones thereafter was called as a witness, and defendant did not ask him to elaborate on his deposition testimony, or to explain what he meant by "plate glass," or what the basis for his deposition testimony had been. *fn2" In addition, there was evidence that the door glass broke into shards, some of which pierced plaintiff's knee. Plaintiff maintained that the manner in which the glass broke and the nature of the injury were circumstantial evidence that the material did not comply with the Rule.

 Plaintiff was entitled to have submitted to the jury every theory supported by evidence which, if believed, would make out negligence. See, e.g., Carvel Corp. v. Diversified Management Group, 930 F.2d 228, 230 (2d Cir. 1991). Here, Mr. Jones' answer was susceptible of the interpretation that the door did not contain "safety glass." The jury, if it accepted that interpretation, was entitled to conclude that the door did not contain "materials which will clearly transmit light and also minimize the possibility of cutting or piercing injuries resulting from breakage of the material" and, in consequence, that defendant violated Industrial Code Rule 47. This view is reinforced by the testimony that the glass broke into shards and by the nature of plaintiff's injury - cutting and piercing. *fn4"

 The jury was charged that the question whether the door contained "transparent safety glazing material" within the meaning of the Rule was for it to determine. Counsel were entirely at liberty to argue both the appropriate interpretation of Mr. Jones' testimony and whether, if plaintiff's interpretation were accepted, it should be taken as establishing that Industrial Code Rule 47 was not complied with. In my view, the submission of these matters was appropriate. Moreover, in view of the clear evidence of negligence given defendant's admission that there was no sign or other warning that the glass door was locked, any error in charging the Industrial Code Rule 47 theory was harmless. See Lusby v. T.G. & Y. Stores, Inc., 796 F.2d 1307, 1310 (10th Cir.), cert. denied, 479 U.S. 884, 93 L. Ed. 2d 251, 107 S. Ct. 275 (1986) (harmless error analysis applied to faulty jury instructions in civil cases); see Neubauer v. City of McAllen, Tex., 766 F.2d 1567, 1575 (5th Cir. 1985) (reversible error when jury instruction made it possible to find against a party on a ground for which there is no evidence).

 Subsequent Remedial Measures

 Defendant asserts that "there were repeated arguments in questioning by plaintiff's counsel during the trial to the fact that a repair was made to the door after plaintiff's accident." (Halbardier Aff. P 7) This, it asserts, violated Fed. R. Evid. 407 and requires a new trial.

 There was no evidence of any repair of a type that reasonably could have been construed as an admission of a previous unsafe condition. If there was a reference to repair of the door -- and the Court recalls none -- it would have been harmless even if timely objection had been made. No one reasonably could expect that the owner of a store on Madison Avenue would fail to repair a broken glass ...


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