O'Connell v. Jacobs

— Amended judgment reversed on the law without costs and complaint dismissed. Memorandum: On March 20, 1980, plaintiff suffered severe personal injuries when she was allegedly beaten in her bed on the third floor of the residence of Max and Helen Jacobs. Plaintiff had no independent recollection of the circumstances that led to her injuries and was unable to identify her attacker. Plaintiff commenced this action against the Jacobs’ son, Seth, who was 15 years of age at the time of the incident, for assault and battery and negligence, and against the Jacobs for negligent supervision of Seth.

Following the close of proof at the jury trial, the court dismissed the negligence cause of action asserted against Seth. The jury returned a special verdict in favor of plaintiff against Seth on the assault and battery cause of action and awarded plaintiff damages in the total sum of $800,000. The jury rendered a verdict in favor of Max Jacobs and Helen Jacobs on the cause of action asserted against them. Although it is tragic that plaintiff suffered such injuries and is deserving of compensation, we reluctantly conclude that the jury verdict against Seth for assault and battery cannot be sustained because there is no evidence to support the finding that defendant Seth battered the plaintiff.

The only possible basis for such a finding is Officer Donovan’s testimony, in response to a question whether at the time of the investigation he had any suspects, that he felt that Max or Seth was "capable” of the attack. No basis for his suspicion, however, is contained in the record. In fact, all of the police officers, including Officer Donovan, testified that they were aware of no evidence to connect Seth with the crime. Officer Donovan’s suspicions that Seth may have been the perpetrator are probative of nothing and that testimony was improperly admitted.

Because there is no evidence to support a finding that Seth battered the plaintiff, his motion for a directed verdict should have been granted. Furthermore, it is undisputed that there were six people besides the victim sleeping at the Jacobs’ house on the night plaintiff was attacked. Two young children could reasonably have been excluded as possible perpetrators. There is some evidence with respect to the parents, but the record is silent regarding a brother of Seth who was one year younger. "A jury verdict must be based on more than mere speculation or guesswork” (Bernstein v City of New York, 69 NY2d 1020, 1021).

If "there are several possible causes of injury, for one or more of which defendant is not responsible, plaintiff cannot recover without proving the injury was sustained wholly or in part by a cause for which the defendant was responsible” (Digelormo v Weil, 260 NY 192, 200). Accordingly, the jury verdict against Seth cannot be sustained and the amended judgment is reversed and the complaint dismissed. Even if, as concluded by the dissent, the evidence is sufficient, the verdict still cannot be sustained because Seth was denied a fair trial by numerous erroneous evidentiary admissions and by unsupported statements of plaintiff’s counsel, all designed to prejudice the jury’s mind against him. Plaintiff’s attorney, despite a pretrial ruling that subsequent hypnotic revelations regarding Seth would not be admissible, asserted in her opening statement that plaintiff subsequently suffered from nightmares and reenactments or reliving of the attack and that she had begun to link up those flashbacks with Seth.

Because plaintiff’s testimony never linked Seth to the assault, there was no basis for plaintiff’s counsel to make that damaging statement (see, Estes v Town of Big Flats, 41 AD2d 681; see also, Cohn v Meyers, 125 AD2d 524, 527). Supreme Court also improperly admitted testimony by Dr. Ewing that, based upon his analysis of Seth’s writings, Seth possessed personality traits of “sadism, narcissism and self-centeredness” and that he was capable of committing the assault. Clearly that was error because ”[i]t is the generally accepted rule that the character of a party may not be shown in a civil case to raise an inference that he acted in conformity therewith on the occasion in question” (Richardson, Evidence § 158 [Prince 10th ed]).

That testimony was very damaging to Seth and should have been stricken. The issue before the jury was not whether Seth was capable of committing the assault, but rather whether he did commit the assault. Likewise, Supreme Court’s improper admission of the inadmissible hearsay testimony of Susan Wolf, that Pamela Prince told her that Seth entered her room while she was sleeping at his home and stood over the bed holding a flashlight in his upraised arm, was extremely damaging. Additionally, the hearsay testimony of Cynthia Russell that Seth’s mother stated that assaults and even murders occur in the best of families, and that Seth would go to Bellevue Hospital for testing, was clearly inadmissible as against Seth and most damaging to him.

It is no small wonder that the jury, presented with such damaging testimony, all admitted over objection, concluded that Seth, amongst all of the members of the household, must have been the one who assaulted plaintiff. All concur, except Green, J. P., and Davis, J., who dissent and vote to modify in the following Memorandum.