Morrison Mahoney Partners Brian Heermance and Chris Keenoy recently prevailed in the Appellate Division First Department.
Plaintiff appealed from the New York County Supreme Court’s Order granting our summary judgment motion and dismissing plaintiff’s Complaint. Plaintiff (a truck delivery person) alleged that he was injured while manually unloading heavy boxes from a trailer owned by our client after the shrink-wrapped pallets came loose during transit causing the boxes to fall on the floor of the trailer. On appeal, plaintiff argued that the Supreme Court had improperly reversed the burden of proof. The Appellate Division affirmed the Supreme Court’s Order dismissing plaintiff’s Complaint finding that defendant had established its entitlement to judgment as a matter of law by first showing that it did not create the alleged hazardous condition and that defendant lacked actual or constructive notice. The Court paid particular attention to defendant’s argument that the law draws a sharp distinction between a condition that merely sets the occasion for or facilitates an accident and an act that is the proximate cause of an accident. Brian and Chris argued that the possibility of injury occurred only after plaintiff voluntarily opted to pick up the boxes and toss them to a store employee to unload the trailer even though he was not required to do so. Prior to filing our summary judgment motion and throughout the pendency of the appeal, plaintiff’s settlement demand was $4.5 million.