Burgh v Century Warehouse Div. of Indian Val. Indus.

[*1] Burgh v Century Warehouse Div. of Indian Val. Indus. 2009 NY Slip Op 51047(U) [23 Misc 3d 1132(A)] Decided on May 15, 2009 Supreme Court, Broome County Lebous, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 15, 2009
Supreme Court, Broome County

Shaheem Burgh, Plaintiff,

against

Century Warehouse Division of Indian Valley Industries, Defendant.



2007-0016



Counsel for Plaintiff:

Stanley Law Offices, LLP

By:Keith R. Young, Esq., of Counsel

500 South Salina Street

Suite 1020

Syracuse, NY 13202

Counsel for Defendant:

Sassani & Schenck, P.C.

By:Mitchell P. Lenczewski, Esq., of Counsel

Allegiance House

7767 Oswego Road

Liverpool, NY 13090

Ferris D. Lebous, J.

This action arose when goods fell off a flatbed trailer injuring plaintiff. Plaintiff subsequently commenced an action alleging two causes of action, namely negligence and violations of unidentified sections of New York's Code of Rules and Regulations. This Decision & Order addresses defendant's, Century Warehouse Division of Indian Valley Industries, motion for an order granting summary judgment dismissing the complaint or, in the alternative, bifurcating liability for trial. Plaintiff Shaheem Burgh opposes the motion in all respects.

BACKGROUND

A review of this case must begin with a description of events on September 6, 2005 - the day before plaintiff's accident. It is undisputed that plaintiff was not present during or involved with the loading of the flatbed trailer at issue here on September 6, 2005. Rather, on September 6, 2005, a flat bed trailer, owned by Kocak Trucking, was driven by owner John E. Kocak to defendant Indian Valley's warehouse in Binghamton to pick up goods for loading. The goods loaded onto the flatbed trailer were rolls and pallets of geotextile materials (e.g., erosion barriers) with the rolls being 15 feet long and weighing approximately 200 pounds each. The factual allegations and legal arguments flowing from the loading and securing of said goods onto the flatbed trailer will be discussed in detail hereinbelow. Suffice it to say at this point that the only two individuals present for the loading of this flatbed trailer were Indian Valley employee, Wayne Felsheim, and Kocak Trucking owner, John E. Kocak. After the flatbed trailer was loaded, Mr. Kocak drove the flatbed trailer back to the Kocak facility for storage overnight.

On September 7, 2005, plaintiff, a truck driver employed by Kocak Trucking, arrived at the Kocak facility around 1:00 a.m. where the pre-loaded flatbed trailer was waiting for him to make deliveries to two separate destinations, one in New Jersey and the other in Queens, New York. Plaintiff, via his deposition testimony, avers that he performed his usual pre-trip inspection in which he "[d]id my check of the load where I walk around the trailer and make sure all my rolls are tight — tight together, and I wrench down on the straps to make sure that they're tight as they can be" (Plaintiff's Ex I [plaintiff's EBT], p 48). Plaintiff recalled that the flatbed trailer was pre-loaded with four layers of rolls (Ex I, p 61).

After leaving the Kocak facility, plaintiff traveled for approximately 35 miles before pulling into a truck stop for gas in Pennsylvania at which time he avers he again tightened the straps, but noted no problems. Plaintiff continued on his trip when, approximately 30 miles later while on Route 380 in Pennsylvania, he received a warning via his CB radio from another trucker stating that the load on his truck had shifted. Plaintiff pulled into a parking lot as soon as possible to check the load. Plaintiff stated he was on ground level when he "[w]ent back to secure — to try to ratchet down on the things to try to pull the load back together, but the load [was] spread too far and basically the straps just gave..." (Ex I, p 59). The top roll fell off the trailer and hit plaintiff in the shoulder knocking him to the ground and another roll dropped onto his foot (Ex I, p 59). Plaintiff suffered comminuted fractures of the fourth and fifth metatarsals, [*2]underwent multiple surgeries, resulting in an alleged 22% reduction in the use of his right foot.

This action was commenced on January 17, 2007 upon the filing of a summons and complaint. Defendant interposed an answer on February 5, 2007.

By way of this motion, defendant contends that it had no duty to plaintiff to inspect and/or secure the load in question and hence there can be no negligence imputed to defendant for plaintiff's injuries suffered on September 7, 2005. Defendant further argues that in the event the court finds a duty exists, then plaintiff's actions in failing to follow company guidelines by loosening the straps should be deemed an intervening event breaking the chain of causation. In the alternative, defendant argues that the trial should be bifurcated.

Plaintiff argues that defendant has not met its initial burden of making a prima facie showing of an entitlement to judgment as a matter of law but, in any event, that defendant did owe a duty of care to plaintiff as established by industry custom and practice. Further, plaintiff argues that summary judgment is not warranted because significant issues of credibility exist.

The court heard oral argument from counsel on May 1, 2009.

DISCUSSION

Generally, on a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). The court must accept the non-moving party's evidence as true and grant him every favorable inference (Hartford Ins. Co. v General Acc. Group Ins. Co., 177 AD2d 1046, 1047 [1991]).

With respect to summary judgment motions in negligence cases such as here, it is true that negligence cases do not usually lend themselves to summary judgment (Ugarriza v Schmieder, 46 NY2d 471, 474 [1979]). However, the determination as to whether or not a duty exists between defendant and plaintiff in the first instance is proper for determination as a matter of law (Filiberto v Herk's Tavern, 37 AD3d 1007, 1008 [2007], lv denied 8 NY3d 815 [2007]).

It is well-settled that "[b]efore a defendant may be held liable for negligence it must be shown that the defendant owes a duty to the plaintiff [citations omitted]. In the absence of duty, there is no breach and without a breach there is no liability [citation omitted]" (Pulka v Edelman, 40 NY2d 781, 782 [1976]). "Duty in negligence cases is defined neither by foreseeability of injury [citation omitted] nor by privity of contract" (Strauss v Belle Realty Co., 65 NY2d 399, 402 [1985]). Rather, "[t]he question of duty...is best expressed as 'whether the plaintiff's interests are entitled to legal protection against the defendant's conduct' [citation omitted]" (Pulka, 40 NY2d at 782). [*3]

Thus, the question presented here is whether the defendant warehouse owed a duty to plaintiff truck driver. In determining this issue, the parties have presented the court with the

deposition testimony of various individuals, only two of whom were present for the actual loading of this flatbed trailer at issue, and other individuals who were not present. It is undisputed that the only two individuals present when this flatbed was loaded on September 6, 2005 were John E. Kocak and Wayne E. Felsheim. John E. Kocak drove the empty flatbed trailer to defendant's warehouse for loading, supervised and inspected the loading process, and drove the loaded flatbed trailer back to the Kocak facility. Mr. Felsheim is defendant's employee who loaded the subject flatbed under the supervision and inspection of Mr. Kocak.

With respect to his role in the loading and securing of this flatbed trailer, Mr. Kocak, testified in his deposition as follows:

QSo you personally directed how the load was loaded?

AYes, ma'am.

QYou personally secured it?

AI personally secured it, and I also personally checked it when I arrived at my place, which is my responsibility to get it from where I'm going, where I start, to where I'm going, Point A to Point B.

***AWe strapped the load, and when we got back, we rechecked the load.

(Plaintiff's Ex N [Kocak's EBT], pp 6 & 8 [emphases added]).

Mr. Felsheim described his role in loading this flatbed trailer as follows:

Typically when [the flatbed] is loaded, it's — it's the driver's responsibility. We will take those 11 pallets and set them on the tail and the driver will use a hand jack and place them wherever he wants on the truck (Plaintiff's Ex L [Felsheim's EBT], p 14).

***[n]ormally we - - with that the truck would be backed into the dock, the pallets would be set up on the back of the trailer and the driver himself would handle the pallets with a hand jack and place them on the truck (Pl's Ex L, p 16).

***I can't load it unless I'm doing exactly what the driver wants me to do. If he wants the rolls or the pallet over at a certain area, that's where they're to go. So, it's inspected before, during, and after thing is loaded and then it's strapped down and the driver's on his way (Pl's Ex L, p 17).

***[b]ut the driver definitely calls the shots on — during all the loading (Pl's Ex L, p 17).[*4]

Further, with respect to the securing of cargo, Mr. Felsheim testified as follows:

Q:Did you personally involve yourself in securing of merchandise on the back of, let's say, flatbed trailers?

A:No.

***

Q:Who would have been the person or persons responsible for securing the merchandise on the flatbed truck?

A:The truck driver.

Q:Would you or anyone in your company offer any assistance as part of your services to the driver to secure merchandise?

A:To secure the load, no.

(Pl's Ex L, pp 24-25)

In this court's view, this proof unequivocally establishes that Mr. Kocak - not defendant Indian Valley or it's employee Mr. Felsheim - undertook responsibility for making sure the flatbed was properly loaded, inspected, and secured. Based upon the unrefuted deposition testimony of Mr. Kocak and Mr. Felsheim, the court finds that defendant has met it's initial burden on this motion of establishing a lack of a duty running from this defendant to plaintiff (Petry v Jockers, 283 AD2d 411 [2001]; Demeza v American Tel. & Tel. Co., 255 AD2d 743 [1998]; La Manna v Colucci, 138 AD2d 901 [1988]).

In opposition, plaintiff attempts to raise questions of fact regarding the existence of a legal duty from defendant to plaintiff via the deposition testimony of Wayne A. Rozen, President of Indian Valley, and plaintiff himself regarding industry custom and practice involving the loading of goods. Plaintiff argues that the court may determine the question of the existence of a duty based upon a "[p]articular industry customs and whether the legal consequences of wrongs are limited to a controllable degree" (Memorandum of Law, p 2).

Plaintiff points to the deposition testimony of Mr. Rozen wherein he generally describes the loading process of rolls such as here via the use of a forklift using a rug pole (a steel bar extension) which is inserted into the core of the center of the role, lifted up, and driven onto a trailer (Plaintiff's Ex K [Rozen's EBT], p 10). Mr. Rozen further stated that "[o]n these types of goods he'll [Felsheim] go to a second tier and maybe even a third tier depending on how big the rolls are" (Pl's Ex K, p 11). Mr. Rozen also stated that placement of the goods in a trailer may be "dependent on the delivery schedule" (Pl's Ex K, p 11).

Plaintiff also relies on his own deposition testimony regarding his past experiences in various warehouses. More specifically, plaintiff states that "[m]ost warehouses that I deliver to you don't go to, you don't get in the warehouse. You basically open up your doors, back up to the dock, they handle it from there. They let you know when it's done, you go inside, sign the bill of ladings and leave out, close your back doors, and that's it until you get to your destination" (Pl's Ex I, pp 17-18). [*5]

However, in this court's view, neither plaintiff's nor Mr. Rozen's deposition testimony of the custom and practice of the industry is of any relevant or material evidentiary value given the undisputed fact that neither was present at the time this particular flatbed was being loaded. Rather, Mr. Rozen was speaking only in general terms regarding the manner of loading and height of such loads. Moreover, Mr. Rozen cited no company policy prohibiting stacking rolls to a fourth tier. Similarly, plaintiff's references to practices at other warehouses is of no evidentiary value here.

The court finds that the deposition testimony of Mr. Rozen and plaintiff- who were not present for the loading of this particular flatbed - is insufficient to contradict the testimony of Mr. Kocak and Mr. Felsheim - who were present for the loading. Stated another way, the testimony of plaintiff and Mr. Rozen might have been sufficient to raise a question of fact regarding the existence of a duty if the events of September 6, 2005 were unknown, but here the court is presented with uncontradicted proof from the two individuals actually present for the loading of this flatbed both of whom unequivocally testified during their depositions that Mr. Kocak supervised, inspected, and secured the load in question.[FN1] Consequently, the court finds that plaintiff has failed to meet his burden of coming forward with evidentiary proof in admissible form that demonstrates the existence of a factual issue regarding the existence of a duty from defendant to plaintiff. Parenthetically, the court notes that there was no proof in this record that this particular flatbed was improperly loaded.

In view of the foregoing, the court need not address defendant's alternate arguments relating to an intervening event or requesting bifurcation of trial.

CONCLUSION

Based upon the foregoing, the court finds that defendant's motion for summary judgment dismissing the complaint is GRANTED; and defendant's request for bifurcation of trial is DENIED as moot.

It is so ordered.

May 15, 2009

Binghamton, New York

s/ Ferris D. Lebous

Hon. Ferris D. Lebous

Justice, Supreme Court Footnotes

Footnote 1:Consequently, the negligence, if any, was committed by Mr. Kocak on behalf of plaintiff's employer, Kocak Trucking. Thus, plaintiff's exclusive remedy would be workers' compensation.