Janof v. Auto Warehouse

could not have been reached by any fair interpretation of the evidence (see Fritz v White Consol. Indus., 306 AD2d 896, 897 [4th Dept 2003]).

Next, BMW contends that the verdict sheet is internally inconsistent and fatally flawed because it failed to combine plaintiff's three causes of action into a single set of interrogatories, despite each cause of action being legally synonymous with the others.^FN1 We find this contention to have merit. Under CPLR 4111 (c), "when the answers on a verdict sheet 'are inconsistent with each other and one or more is inconsistent with the general verdict, the court shall require the jury to further consider its answers and verdict or it shall order a new trial' " (Motta v Eldred Cent. Sch. Dist., 172 AD3d 1575, 1578 [3d Dept 2019], quoting CPLR 4111 [c]). An inconsistency occurs "only when a verdict on one claim necessarily negates an element of another cause of action" (Barry v Manglass, 55 NY2d 803, 805 [1981]). Where, like here, a plaintiff "has pleaded both strict liability and negligent design causes of action, the standards set forth" for resolving a strict products liability claim "apply to both" (Adams v Genie Indus., Inc., 14 NY3d 535, 543 [2010]) â​​ and a verdict sheet which purports to inquire separately into whether a design was "negligent" or "not reasonably safe" is essentially "redundant" (Reis v Volvo Cars of N. Am., 24 NY3d 35, 40 [2014] [internal quotation marks omitted]). Similarly, while breach of implied warranty and strict products liability share "a high degree of overlap," the "core element of 'defect' is subtly different" between the claims â​​ with defect in the former focusing on a balancing of the risk versus the utility, and defect in the latter focusing on "the expectations for the performance of the product when used in the customary, usual and reasonably foreseeable manners" (Denny v Ford Motor Co., 87 NY2d 248, 256, 258-259 [1995]; accord Wojcik v Empire Forklift, Inc., 14 AD3d 63, 66 [3d Dept 2004]). Here, plaintiff's [*3]strict products liability and negligent design claims were both premised upon BMW's use of an untethered, deflector-equipped driver-side airbag rather than a tethered design, and the same evidence concerning the risks and utility of that design and the feasibility of the proposed alternative was offered to support both theories. BMW objected to separate interrogatories, warning that they could produce inconsistent findings, and proposed a single interrogatory asking whether the airbag was "defectively or negligently designed." Plaintiff opposed that request, expressly stating that he was "willing to accept the risk of an inconsistent verdict." Supreme Court submitted the claims separately, resulting in a jury verdict finding that the airbag was defectively designed because it was not reasonably safe, but that BMW was not negligent in selecting that same design.

Under these circumstances, the separate interrogatories unnecessarily divided what was in essence a single design inquiry and permitted the jury to reach divergent findings without a discernible factual basis for doing so (see Reis v Volvo Cars of N. Am., 24 NY3d at 40). Although strict products liability and negligent design involve distinct legal theories that may permissibly yield different results under certain circumstances, the evidence here supplied no factual basis for such a distinction. Plaintiff identified no negligent conduct by BMW apart from its selection of the very airbag design that the jury found to be defective. Such proffer not only related to whether the allegedly defective design was reasonably safe, but also whether it was reasonably fit for its ordinary purpose under the breach of implied warranty claim (see Fritz v White Consol. Indus., 306 AD2d at 897). Thus, the jury simultaneously determined that the design was not reasonably safe or reasonably fit for its ordinary purpose, yet that BMW was not negligent in choosing that design, without any evidentiary basis upon which to reconcile those findings (see generally Searle v Suburban Propane Div. of Quantum Chem. Corp., 263 AD2d 335, 339 [3d Dept 2000]). Upon retrial, the verdict sheet should be structured to account for the substantial factual overlap between the claims to avoid the potential for inconsistent findings. Although our determination renders the parties' remaining contentions academic, during the retrial Supreme Court must ensure that a proper foundation exists before admitting evidence of other similar incidents identified through the National Automative Sampling System (see Daniels v New York City Tr. Auth., 35 NY3d 938, 939 [2020]). Indeed, under appropriate circumstances, evidence of prior accidents may be admitted to demonstrate, among other things, a dangerous condition, causation or notice, but only upon a foundational showing that the prior incidents occurred under circumstances substantially similar to those surrounding the accident at issue (see Hyde v County of Rensselaer, 51 NY2d 927, 929 [1980[*4]]; see also Johns v Crown Equip. Corp., 242 AD3d 1398, 1399 [3d Dept 2025]; O'Buckley v County of Chemung, 149 AD3d 1232, 1234 [3d Dept 2017]; Cramer v Kuhns, 213 AD2d 131, 136 n, 137 [3d Dept 1995], lv dismissed 87 NY2d 860 [1995]; Facci v General Elec. Co., 192 AD2d 991, 993 [3d Dept 1993]). Inasmuch as substantial similarity is defined by the product or defect at issue, an appropriate foundation for the admission of other similar incidents must include proof that such incidents involved substantially similar airbag systems and that the injuries sustained were caused by the same alleged defect. Moreover, to utilize "the professional reliability exception to the hearsay rule[, which] allows an expert witness to provide opinion evidence based on otherwise inadmissible hearsay, it must be shown to be the type of material commonly relied on in the profession" (Delosh v Amyot, 186 AD3d 1793, 1796 [3d Dept 2020] [internal quotation marks and citations omitted]).

Garry, P.J., Fisher, Powers and Corcoran, JJ., concur.