A New York appeals court recently addressed the question of how far a personal injury attorney may go in challenging a defendant's evidence. New York City and one of its contractors argued they were deprived of a “fair trial” by a plaintiff's attorney who challenged the credibility of one of their witnesses during closing arguments. But the court thankfullydeclined to throw out a multi-million dollar jury award simply because of some possibly over-agressive lawyering.
Gregware v. City of New York
The plaintiff in this case was seriously injured as the result of a five-car accident which occurred on Manhattan's West Side Highway in the early morning hours of May 20, 2006. At the time, the highway was under repair by Burtis Construction, a city contractor. Burtis was responsible for closing affected lanes and redirecting traffic as necessary.
At 1 a.m. on the morning in question, two cars got into an accident near one of the road closure sites. Burtis officials on site made no changes to their road closure scheme and immediately resumed work on the highway. Two hours later, the five-car accident took place at the same location as the earlier accident.
To summarize the accident briefly: Car #1 merged into a center lane and rear-ended Car #2. This caused Car #1 to hit Car #3, which was in front of him. As the three drivers stopped to exchange insurance information, the plaintiff approached in Car #4. He attempted to stop but rear-ended Car #2. When the plaintiff attempted to exit his car to speak with the other drivers, Car #5 rear-ended Car #4, throwing the plaintiff to the ground.
This final collision caused multiple injuries to the plaintiff. Of particular note, he suffered multiple ligament tears in both of his knees. This required five surgeries and several months of rehabilitation. Even today, nine years after the accident, the plaintiff remains in considerable pain and will require at least four additional surgeries.
The plaintiff sued the City and Burtis for negligence, alleging “the narrowing of the highway due to lane closures, without adequate warning, was a proximate cause” of the accident and therefore the plaintiff's injuries. The City and Burtis blamed each other, as well as the other drivers in the accident, for causing the plaintiff's injuries. A jury sitting in Manhattan Supreme Court ultimately ruled in favor of the plaintiff and ordered the defendants to pay over $7 million in damages to the plaintiff and his wife. The jury apportioned 65% of the blame against the City, and the remaining 35% against Burtis.
On August 4, the Appellate Division, First Department, upheld the verdict and the damage award, although it disagreed with the jury's allocation of fault. With respect to the verdict, the City and Burtis argued they were entitled to a new trial based on inflammatory remarks made by the plaintiff's attorney during closing arguments. The attorney assailed the credibility of a defense witness, a New York police officer, who said during pretrial discovery he could not recall key facts about the accident, yet while testifying at trial several years later suddenly remembered what happened in great detail. The plaintiff's attorney effectively called the officer a liar, and referred to defense counsel as a “gang.” The defense argued the latter remark had “improper racial overtones.”
While the First Department conceded the plaintiff's attorney was overly aggressive in his closing remarks, they did not prejudice the City or Burtis' right to a fair trial. Indeed, the appeals court said the plaintiff had ample reason to challenge the officer's sudden change in his recollection of the accident. As for the “gang” remark, the First Department said the remark was not racist when considered in context.
As noted above, the First Department did reverse the jury's decision to allocate most of the blame to the City rather than Burtis. The court noted Burtis, not the City, was “responsible for setting up and maintaining the traffic pattern.” It therefore deserved the majority of the blame for causing the plaintiff's injuries.
Zealously Protecting Your InterestsIf you have suffered serious injuries in a motor vehicle accident due to someone else's negligence, it is essential you work with an experienced New York personal injury attorney who will zealously protect your interests. Contact our offices today if you would like to speak with an attorney right away.