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CHERENSKY v. WASHINGTON

October 8, 1970

Lillian CHERENSKY and David Cherensky
v.
GEORGE WASHINGTON--EAST MOTOR LODGE et al.


Masterson, District Judge.


The opinion of the court was delivered by: MASTERSON

MASTERSON, District Judge.

 In this diversity action, plaintiffs sued defendants for injuries sustained as a result of a firecracker explosion on defendant-Motor Lodge's premises, which explosion plaintiffs allege was caused by the Motor Lodge's negligence. The case was tried to a jury and the jury found for the defendants. Presently before the Court is plaintiffs' motion for a new trial.

 (1) Defendants' liability was clearly established by the evidence and, hence, the verdict was against the weight of the evidence;

 (2) The jury was confused and disregarded the law applicable to the case;

 (3) The jury was guilty of misconduct. For the reasons set out below, we have decided to deny plaintiffs' motion.

 I. THE VERDICT WAS AGAINST THE WEIGHT OF THE EVIDENCE.

 Plaintiffs' argument that a new trial should be granted because the evidence clearly established defendants' liability need not detain us, for it is clearly without merit. This case was certainly one for the jury. There was evidence to support both the plaintiffs' and defendants' positions and the jury chose defendants'. This verdict was entirely justified.

 II. THE JURY WAS CONFUSED AND DISREGARDED THE LAW.

 The following events form the basis of plaintiffs' jury confusion argument. The jury retired to deliberate at 12:15 P.M. At 5 P.M. a written communication was sent to the Court by the jury which read as follows:

 
"Your Honor,
 
"We have one juror who steadfastly insists that the defendant should have called the police after the first or second fire cracker was exploded at the Motor Lodge.
 
"This juror agrees that even if the police had been called there is no assurance that the last fire cracker, which injured Mrs. Tenensky, ...

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