Personal injury lawyers know that no matter how good the facts of a case are, favorable law is required to win at trial. The jury decides the facts, but it is the judge, not the jury, who determines the applicable law. At the outset of a trial, each side—the plaintiff and the defendant—submits to the judge the charges they think are applicable. During the trial, the judge decides which charges the jury will hear, and in his final charge to the jury, he instructs them regarding the law they must follow. Sometimes the judge can be wrong in what he or she tells the jury. Regardless, every trial lawyer knows that the “law” is whatever the trial judge decides is the law that day, in that courtroom! However, even if the jury finds against you, you might get another chance to try or settle your case later if your attorney can convince a panel of judges on appeal that the trial judge made a significant mistake and that you were prejudiced by his incorrect charge to the jury. (Such an appeal requires significant time and money!)

Keegan, Keegan, & Strutt, LLP. recently had the experience of being “charged” out of court in DiLallo v. Katsan Ltd. P'ship and JP Morgan Chase & Company, 134 A.D.3d 885, 886 (2d Dep’t 2015). We represented the injured plaintiff, Nicholas DiLallo, who fell while exiting his vehicle that was lawfully parked in a handicapped parking space. We brought a personal injury action in Supreme Court in White Plains against the tenant responsible for maintaining the parking lot. The marked handicapped parking spot was located very close to a grassy slope. When Mr. DiLallo exited his vehicle, it was raining, and the slope was especially slippery. We argued that the parking spot's location, and the way it had been designed and laid out after a repaving job, did not leave enough space for Mr. DiLallo to exit his vehicle without putting one foot on the grassy area located immediately adjacent to the sharp slope. As a result, Mr. DiLallo slipped and slid down the slope, breaking his hip. We argued that the parking spot had an access aisle that was too narrow to provide enough room for a person to safely exit their vehicle, even when lawfully parked in the handicapped spot.

Accordingly, we requested that the trial court charge the jury with New York Pattern Jury Instruction (hereinafter PJI) 2:25, because the defendant, Chase, violated sections of the Building Code of New York State (19 NYCRR Part 1221) (2010) which pertain to the requirement that access aisles measuring a minimum of eight feet wide be provided for handicapped parking spaces in off-street parking lots. We also argued to the trial court that the out-of-code access aisles violated the Americans with Disabilities Act (“ADA”). (Chase requested that the trial court charge PJI 2:29, which pertains to the statutory standard of care set forth in ordinances or regulations.) The trial court denied both requests.

Thereafter, the jury returned a verdict on the issue of liability in favor of Chase. The judge had gone further and cautioned us that we were not permitted to argue to the jury during summation that the defendant may have violated the New York State Building Code and/or the ADA, even though our expert architect had testified that way. Without the jury hearing a jury charge that told them what the law was (and it was within their province to find a statutory violation and use that finding in determining whether the defendant was negligent), the jury “bought” the defendant’s summation argument that the accident was entirely Mr. DiLallo’s fault, because he stepped onto the grassy area adjacent to the slope. The Supreme Court then entered judgment in favor of Chase and the other defendant, dismissing the complaint.

However, on appeal, the appellate division reversed and remitted the matter to the Supreme Court for a new trial against Chase, finding that the law governing both the New York State Building Code and the ADA should have been charged. In granting us a new trial, the appellate division emphasized that the jury instructions should adequately convey “the sum and substance of the applicable law to be charged”, and that a new trial is warranted when an error is “so significant that the jury was prevented from fairly considering the issues at trial.” DiLallo, 134 A.D.3d 885, 886. The appellate division went further and noted that “[t]he plaintiff's expert architect testified that the subject parking spot did not conform to requirements set forth in the ‘New York State code and building regulations’ or the Americans with Disabilities Act of 1990 (42 U.S.C. § 12101 et seq.), both of which were applicable to the subject parking lot. Specifically, the evidence presented at trial demonstrated that Chase had hired a contractor to repave the subject parking lot and the subject handicapped parking spot was not marked to allow for adjacent access aisles of eight feet in accordance with Property Maintenance Code of New York State § 302.3.1 (2010) and Building Code of New York State § 1106.”

It took us two years to get a shot at a second trial, at which time the defendants offered $175,000 to settle the case. Had the defendants risked a second trial before a different jury, we would undoubtedly have gotten a charge that would have told the jury that they could consider the argument that the defendant had violated the New York State Building Code and/or the ADA.