Court Upholds Verdict Despite Evidence of Pre-Existing Condition and Failure To Give Comparative Negligence Charge For Physically Disabled Person

As discussed in our most recent blog, extensive evidence was offered to show that the plaintiff in Stewart v. NYCTA suffered from pre-existing conditions. The trial court limited the application of this evidence to the issue of damages, indicating that there was no evidence that the plaintiff was unable to walk the stairs on which he fell on the day of his accident. The jury ultimately found the plaintiff to be 20% at fault for the happening of his accident. The First Department affirmed both the trial court's determination and the jury's verdict.

Notably, however, the First Department indicated that the trial court should have charged the jury with PJI 2:47, which states: "Comparative Negligence—Persons Under Disability—Aged or Physically Disabled Person -- One who is disabled by reason of physical defects is held to a standard of care measured not by the care expected of an adult person without physical defects, but by that care which a reasonably prudent person having the same physical defects would use under the same circumstances. A person laboring under a physical handicap must use caution commensurate with the increased hazard caused by his disability." The trial court had instead given a simple comparative negligence charge. Taking this fact into consideration, the First Department found that the error in failing to give the Disabled Person charge was harmless.