On Appeal From an $8.3 Million Judgment, New Trial Ordered In New York Personal Injury Action

HPM&B’s client, a public utility, was granted a new trial on damages on the ground that a Brooklyn trial court erred in instructing the jury that defendant had the burden of proving that the automobile accident in question did not cause the plaintiff’s injuries. 


Two years after being involved in an automobile accident with a vehicle operated by an employee of the public utility, plaintiff underwent cervical spinal fusion surgery.  Plaintiff sued the public utility for negligence and was granted summary judgment as to liability.  During the ensuing damages trial, the public utility argued that plaintiff was involved in another automobile accident just three weeks before the accident in question.  Defendant was precluded from calling an expert witness to testify that the damage to plaintiff’s vehicle and plaintiff’s physical injuries were attributable to the earlier accident.  The trial court then instructed the jury that defendant had the burden of proving that the accident did not cause her injuries. 


After a post-trial motion to vacate the judgment on the grounds of fraud and various evidentiary errors was denied, on appeal Daniel S. Ratner of HPM&B successfully argued that the jury instruction, standing alone, was reversible error because it is warranted only in cases where the plaintiff’s comparative fault is at issue or where defendant pleads an affirmative defense.  In ordering a new trial on damages, the Appellate Division held that this erroneous instruction was prejudicial and did not do substantial justice because it improperly shifted the burden of proof to the defendant.