Superintendent Hoses Down Sidewalk in Freezing Temperatures-Interested Witness v Disinterested Witness
In a decision dated June 16, 2016, the Appellate Division, First Department agreed with Ron Burke, counsel to Jenise Jett, that she was entitled to a new trial because the Trial Court did not properly instruct the jury on legal principles concerning how they should evaluate the testimony of witnesses. Ms. Jett had slipped and fell on an icy sidewalk in front of a building maintained by the City of New York. As a result, the plaintiff fractured her ankle which led to her developing traumatic osteoarthritis. A "disinterested witness" employed as a porter at a building near the accident site testified that he saw the defendant's building superintendent hosing down the sidewalk minutes before plaintiff's accident, which immediately created an icy condition in front of only one building on the entire block. The former building superintendent testified at trial and denied he would have done something so dangerous and stupid as to hose down a sidewalk in freezing temperatures.
Because the formerly employed superintendent had a motive to skew his testimony to defend his own conduct, the plaintiff was entitled to have the trial Judge instruct the jury that he should be considered to be interested in the outcome of the case with just as much motive to shade his testimony as a party plaintiff or defendant. The Court instructed the jury that Jenise Jett was an interested witness. The Trial Court refused to instruct the jury, as requested by Mr. Burke, that a superintendent (even one no longer employed by the defendant) who allegedly used a garden hose to wash off a sidewalk in below freezing temperatures was also an "interested witness". The Trial Court agreed with the attorney for the City of New York that since the former superintendent was no longer employed by the defendant at the time of trial, he was not a witness with an interest in the outcome of the case. The Appellate Court reversed the trial court finding that: "As a former employee of a party and participant in the accident, who was charged with creating an icy condition by hosing down the sidewalk on a freezing day, the former superintendent was an interested witness....Given the pivotal role that the witness's testimony played in the defendant's case, which pitted his reliability against that of an alleged eyewitness, the error was not harmless." Jenise Jett v City of New York, Appellate Division, First Department, New York.