Complete New Trial Order for Accident Victim in Slip-and-Fall Case Against Costco, Where Jury Goofed

Court: Supreme Court, Appellate Division, Second Department, New York

Case: Das v. Costco Wholesale Corporation

Date: Aug. 29, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Bronx and Queens; Queens injury lawyer)

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Facts: This case concerns the jury trial of a slip-and-fall accident case.

On 21 April 2007 plaintiff Das was shopping at a Costco when she slipped and fell on a concrete floor that was wet. A jury heard the case.

The trial judge instructed the jury that the burden was on Das to prove whether a dangerous condition -- whether the floor was wet -- caused her accident. The judge then went on to instruct the jury that if a dangerous condition existed, it had to determine that Costco was negligent in not utilizing reasonable care to make the condition safe.

The jury found in its verdict that there was a dangerous condition and that Costco was at fault, but that Costco's negligence wasn't a "substantial factor" in causing Das' accident.

Das' attorney then asked the judge to cancel the jury's verdict, as against the "weight of the evidence" and give Das a new trial.

The trial judge granted plaintiff's request and set this case down for a partial new trial -- only on the questions of comparative negligence and the amount of damages Das is entitled to for her injuries.

Holding on Appeal: The lower court made a mistake in ordering a new (partial) trial only on the issues of whether Das was partly at fault for h accident and the amount of her money damages, if any. The trial judge should have required an entire new trial on the question of fault or liability for this accident.

This case is returned to the lower court for a new trial.

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