Rickert v Arsenault
Annotate this CaseDecided on February 16, 2017
Supreme Court, Rensselaer County
Ralph P. Rickert and Karen Rickert, Plaintiffs,
against
Jeremiah W. Arsenault and A.E. Rosen Electrical Co. Inc., Defendants.
247933
LaFave, Wein & Frament, PLLC
Attorneys for Plaintiffs
Jason Frament, Esq., of counsel
2400 Western Avenue
Albany, New York 12084-1534
Burke, Scolamiero, Mortati & Hurd, LLP
Attorneys for Defendant A.E. Rosen Electrical Co.
Judith B. Aumand, Esq., of counsel
P.O. Box 15085
Albany, New York 12212-5085
Henry F. Zwack, J.
Defendant A.E. Rosen ("Rosen") has filed a Notice of Motion in Limine seeking an order precluding the testimony of plaintiffs Ralph P. Rickert and Karen Rickert's expert Michael P. Reilly, II, PE ("Reilly"), asserting that plaintiff's expert disclosure is insufficient and speculative. Defendant Rosen asserts that the expert Reilly based his opinion on facts not in the record, that he never inspected the subject vehicle, and never reviewed its maintenance records, logs, photos or reports. Plaintiffs' oppose the motion in limine, have cross-moved for summary judgment on the issue of liability, and also seek an order for spoilage sanctions.
According to the complaint and deposition of plaintiff Ralph Rickert ("Rickert"), he[FN1] was hired by defendant Rosen to deliver several Conex storage containers to Rosen's jobsite and Crossgates Mall, and was injured on October 22, 2013 when he was pinned, twice, between defendant Jeremiah W. Arsenault's ("Arsenault") 1994 Toyota pickup truck and a Conex storage container. According to the complaint and deposition testimony of Rickert and Arsenault, defendant Arsenault left his truck running in park on an incline, exited the truck without engaging the parking brake, did not chock the truck tires, and the truck rolled backward down the incline pinning Rickert between the truck and a Conex container. Arsenault then pulled his truck forward, "slammed" the truck into park, he again exited the truck running without engaging the parking brake, did not chock the truck tires, and the truck again rolled down the incline pinning Rickert a second time between the truck and the Conex container, causing Rickert grievous injuries. The complaint asserts three causes of action, negligence, negligence on the part of Rosen under the doctrine of respondeat superior, and loss of consortium on behalf of plaintiff Karen Rickert.
According to the deposition testimony of Arsenault, he was employed by Rosen, and was required as part of his employment to have his own pick up truck, which he used on the job, and was using it on the day the accident occurred. Arsenault was assisting Rickert drop off Conex containers at a Rosen jobsite at Crossgates Mall when the accident happened.
A motion for summary judgment "permits a party to show, by affidavit or other evidence, that there is no material issue of fact to be tried, and that judgment may be directed as a matter of law (Brill v City of New York, 2 NY3d 648, 651 [2004]). It should not be granted unless it is clear that there are no triable issues of fact (Andre v Pomeroy, 35 NY2d 361, 364[1974], and "the focus of the court must be on issue identification rather than issue determination" (Sternbach v Cornell University, 162 AD2d 922, 923 [3d Dept 1990]). "[T]he proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact"(Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]; Ayotte v Gervasio, 81 NY2d 1062 [1993]; Zuckerman v City of New York, 49 NY2d 557 [1980]. Only once the movant has satisfied its entitlement to judgment as a matter of law — by affirmatively demonstrating the merits of its claim (Velasquez v Gomez, 44 AD3d 649, 650-651 [3d Dept 2007]) — does the burden then shift to the opponent of the motion to establish, by admissible proof, the existence of a triable issue of fact (Lockwood v Layton, 79 AD3d 1342, 1342-1343 [3d Dept 2010]). The Court must view the evidence in the light most favorable to the non-moving party, "giving that party the benefit of every reasonable inference, and determine whether there is any triable issue of fact outstanding" (Boyce v Vasquez, 249 AD2d 724, 726 [3d Dept 1998], internal citations omitted). Simply stated, the Court must deny summary judgment, "without making any credibility determinations...if there is any doubt as to whether a material factual issue exists or if such an issue is even arguable" (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958, 959 [3d Dept 2011], internal citations omitted).
A motion for summary judgment, once the movant is entitled to judgment as a matter of [*2]law, "triggers the requirement that the opposing party come forward with proof in evidentiary form to demonstrate a triable issue of fact" (Bradt v John Hancock Mut. Life Ins. Co.,, 98 AD2d 886 [3d Dept 1983], and affidavits of opposing attorney — with no personal knowledge of the operative facts — are without probative value[FN2] and insufficient to defeat a motion for summary judgment (Bronson v Algonquin Lodge Assn., 295 AD2d 681 [3d Dept 2002]).
Plaintiff seeks summary judgment on the issue of liability, asserting that defendants owed him a cognizable duty of care, defendants breached the duty, and plaintiff suffered damages as a result of that duty (Solomon v City of New York, 66 NY2d 1026, 1027 [1985]). Plaintiff argues that the doctrine of res ipsa loqitur is applicable, which requires plaintiff to "establish three things: (1) the accident is of the kind that ordinarily does not occur in the absence of someone's negligence; (2) the instrumentality causing the accident was within defendant's exclusive control; and (3) the accident was not due to any voluntary action or contribution by plaintiff...(and the) plaintiff need not conclusively eliminate all other possible explanations" (Pavon v Rudin, 254 AD2d 143, 145 [1st Dept 1998]). The basic concept of res ipsa loquitur is that the injury would not have occurred if the person with exclusive management and control of the instrumentality used it properly — and summary judgment is appropriate "when the plaintiff's circumstantial proof is so convincing and the defendant's response is so weak that the inference of defendant's negligence is inescapable" (Morejon v Rais Constr. Co., 7 NY3d 20, 209 [2006]). "When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident, on the theory that certain occurrences contain within themselves a sufficient basis for an inference of negligence... (and the) rule recognizes from we know from our everyday experience: that some accidents by their very nature would ordinarily not happen without negligence...(and) has the effect of creating a prima facie case of negligence..." (Dermatossian v New York City Tr. Auth., 67 NY2d 219, 226 [1986]).
Logic and common sense make it clear that a truck does not usually roll backward down an incline in the absence of negligence. The un-controverted facts show that Arsenault parked the truck on the incline, left it running, did not set the parking brake or chock the tires, exited the truck, and the truck then rolled down the incline striking Rickert, twice. Thus, in the absence of any proof offered by defendants that Rickert contributed to the Arsenault's failure to set the parking brake or chock the truck tires, the plaintiff has clearly established the requisite first and third elements of res ipsa loquitor. On the second element, that the defendant Arsenault was exclusively in "control of the instrumentality of the accident, it is not an absolutely rigid concept, but is subordinate to its general purpose, that of indicating that it was probably the defendant's negligence which caused the accident in question" (Pavon, 254 AD2d at 145, internal quotations and citations omitted). Here, Arsenault owed Rickert a duty to park truck carefully on an incline — a duty owed to the world at large (Malin v Malin, 124 Misc 2d 1078, 1079 [Sup Ct, Erie County 1984]) — inasmuch "[w]hen a driver park a (truck) on an incline, it is reasonably foreseeable that a mechanical device such as a (parking) gear might fail with or without human intervention, particularly when the force of gravity is involved...(and) since we deal here with natural physical forces, the only sure way to guard against the results of such failure on an incline [*3]is provide blockage against gravity...(and) the failure to utilize it in these circumstances (constitutes) negligence" (Flood v Travelers Vil. Garage, 66 AD2d 726, 726 [1st Dept 1978]).
"While negligence cases do not generally lend themselves to ... summary judgment, such a motion will be granted where, as here, the facts clearly point to the negligence of one party without any fault or culpable conduct by the other party" (Spence v Lake Serv. Sta., Inc., 13 AD3d 276, 277-278 [1st Dept 2004], quoting Morowitz v Naughton, 150 AD2d 536, 537 [1st Dept 1989]).The deposition testimony of both plaintiff and defendant Arsenault establishes Arsenault's negligence in causing the accident, including his exclusive control of the truck, parking it on the incline, failing to engage the parking brake or chock the tires, and leaving it unattended, and also plaintiff's freedom from comparative fault (Truckenmiller v Duran, 125 AD3d 639, 640 [2d Dept 2015]) — thereby establishing plaintiff's prima facie entitlement to summary judgment and shifting the burden to defendant to present admissible proof which would raise a question of material fact...which defendant Rosen simply failed to do. The Court is not persuaded by Rosen's argument that there was contributory negligence by plaintiff because he "selected the means and manner of delivery of the Conex" container. Even accepting defendant's argument that plaintiff was responsible for the location of the container, at best Rickert "merely furnished the condition or occasion for the occurrence of the event and (Arsenault's) negligence in the manner in which he operated the...truck, by allowing it to roll downslope and pin plaintiff against (the Conex container, was the sole proximate cause of the accident" (Spence, 13 AD3d at 278, internal citations omitted).
Plaintiffs also contend that defendant Rosen was negligent under the doctrine of respondeat superior. "The doctrine of respondeat superior holds an employer vicariously liable of the negligent acts committed by an employee while acting in the scope of employment...(and while) the question of whether one is acting within the scope of employment is generally one of fact for the jury, summary judgment is appropriate where there is no conflicting evidence or the facts are undisputed" (Crawford v Westcott Steel Co., 188 AD2d 731, 731-732 [3d Dept 1992], internal quotations and citations omitted). Having determined the issue of liability of defendant Arsenault, and as the record establishes — without Rosen tendering any proof to the contrary — that Arsenault was employed by Rosen and that the accident occurred during the scope of his employment, the Court determines this issue in favor of plaintiff as a matter of law (Shapiro v Robinson, 63 NY2d 896 [1984]).
All said, on the issue of liability, both defendants Arsenault (as owner/operator of the truck) and Rosen (as employer) owed plaintiff Rickert "a duty to park and secure the unattended truck" (Schiffer v Sunrise Removal, Inc., 62 AD3d 776, 781 [2d Dept 2009]). Rickert demonstrated that Arsenault was negligent in failing to secure the parking brake or chock the tires, and Rosen — beyond argument — simply failed to raise a triable issue of fact in this regard.
Turning to Rosen's motion to disqualify plaintiffs' expert and for Rickert's request for spoilation sanctions, they are each denied. Defendant's objections to plaintiff's expert's proposed testimony go only to weight and are preserved until trial. Further, given the Court's determination of liability on the part of the defendants, both issues are largely academic.
Accordingly, it is
ORDERED, that defendant A.E. Rosen's motion in limine is denied in all respects, and it [*4]is further
ORDERED, that part of plaintiffs' cross-motion which seeks partial summary judgment on the issue of liability is granted; and it is further
ORDERED, that part of plaintiffs' cross-motion which seeks spoilation sanctions is denied.
This constitutes the Decision and Order of the Court. This original Decision and Order is returned to the attorneys for the plaintiffs. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Dated: February 16, 2017
Troy, New York
Henry F. Zwack
Acting Supreme Court Justice
Papers Considered:
1. Notice of Motion in Limine dated October 4, 2016; Affirmation of Judith B, Aumand, Esq. dated October 4, 2016 together with Exhibits "A" through "E";
2. Notice of Cross-Motion for Partial Summary Judgment dated October 24, 2016, affirmation of Jason Frament, Esq., dated October 18, 2016, with exhibits "A" through "G", Memorandum of Law;
3. Affirmation in further Support of Motion for Partial Summary Judgment dated December 5, 2016;
4. Reply affirmation of Judith B. Aumund, Esq., dated December 2, 2016. Footnotes
Footnote 1:Deposition testimony shows that Rickert is an owner of Sunnyside Garage, which was hired by Rosen to move the Conex containers.
Footnote 2:Except to the extent to serve as a vessel for attaching admissible proof (Jabs v Jabs, 221 AD3d 704 [3d Dept 1995]).
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