Harvey v. Mazal American Partners, 79 N.Y.2d 218 (1992)

A trial court has discretion to allow a plaintiff to demonstrate the extent of their injuries to the jury, even if the plaintiff is not formally sworn as a witness, so long as the probative value of the demonstration outweighs the potential for prejudice.

Summary

Bernard Harvey, an ironworker, sustained severe brain and spinal cord injuries after falling at a construction site. At trial, he was permitted to appear before the jury and answer basic questions to demonstrate the extent of his cognitive impairment. The jury awarded a substantial sum, but the Appellate Division found the award potentially excessive and applied an incorrect standard of review. The Court of Appeals held that the trial court did not abuse its discretion in allowing the plaintiff’s demonstration, but remitted the case to the Appellate Division for proper review of the damages award, applying the “deviates materially” standard.

Facts

Bernard Harvey, an ironworker foreman, was injured when an unsecured wooden plank on which he was standing gave way, causing him to fall two stories. He suffered severe and permanent brain and spinal cord damage. Harvey and his wife sued the property owners and managers. During the damages phase of the trial, Harvey was brought before the jury and asked a series of simple questions, such as his age, the number of children he had, and basic questions about days of the week and months of the year. His answers, some inaudible, some correct, and some incorrect, were intended to illustrate the extent of his cognitive impairment.

Procedural History

The plaintiffs were granted summary judgment on the issue of liability. A jury trial was held on damages, resulting in a verdict for the plaintiffs. The trial court reduced the award. The Appellate Division modified the judgment to reflect that individual partners of Assay Partners were not summoned and otherwise affirmed the judgment, including the finding that the damages were not excessive. The Court of Appeals granted leave to appeal to both the defendants and third-party defendants.

Issue(s)

1. Whether the trial court erred in permitting the plaintiff, who was not sworn, to appear before the jury and answer questions demonstrating the extent of his injuries.
2. Whether the Appellate Division used the proper standard in determining whether the damages award was excessive.
3. Whether Gem Steel was contractually obligated to indemnify HRH and Assay for their own negligence.

Holding

1. No, because the trial court has discretion to allow demonstrative evidence, and the court appropriately balanced the probative value of the demonstration against the potential for prejudice.
2. No, with respect to the loss of consortium claim, but yes with respect to the remainder of the award because the Appellate Division applied an outdated “shocks the conscience” standard instead of the “deviates materially” standard required by CPLR 5501(c).
3. No, because enforcing such an indemnity clause would run contrary to the intent behind General Obligations Law § 5-322.1.

Court’s Reasoning

The Court of Appeals held that the decision to allow the plaintiff’s demonstration was within the trial court’s discretion. The court relied on precedents such as Mulhado v Brooklyn City R. R. Co. and Clark v Brooklyn Hgts. R. R. Co., which allowed plaintiffs to exhibit their injuries to the jury. The Court emphasized that demonstrative evidence is permissible if it is kept within reasonable limits and fairly presents the facts. Citing People v Acevedo, the court cautioned that trial courts must be alert to the danger that demonstrative evidence may mislead or confuse the jury. The court found that the trial judge appropriately balanced the value of showing the jury the plaintiff’s injuries against the potential for prejudice. “When there is such a threat, the trial court itself must decide in the exercise of a sound discretion based on the nature of the proffered proof and the context in which it is offered, whether the value of the evidence outweighs its potential for prejudice” (People v Acevedo, 40 NY2d 701, 704). While an in camera examination of the plaintiff before the demonstration would have been preferable, the failure to conduct one was not an abuse of discretion. The Court agreed with the appellants that the Appellate Division did not correctly review the excessiveness of the damages award as they referred to the former “shocks the conscience” standard. The Court stated that “[i]n reviewing a money judgment in an action * * * in which it is contended that the award is excessive or inadequate and that a new trial should have been granted unless a stipulation is entered to a different award, the appellate division shall determine that an award is excessive or inadequate if it deviates materially from what would be reasonable compensation.” The Court found that enforcing the indemnification clause would be against General Obligations Law § 5-322.1, as it would indemnify HRH and Assay for their own acts of negligence.