Barker v. Mobile Pallet Truck, Inc. ( 2010 )

Centra, J.P., and Carni, J. (dissenting in part).

We respectfully dissent in part because we disagree with the majority’s conclusion that there is an issue of fact with respect to plaintiffs failure to warn cause of action. In our view, the majority erroneously concludes that plaintiff and his supervisor began to move the compressor simultaneously. Rather, the record establishes that plaintiff was safely standing in the doorway of the compressor room when his supervisor began moving the compressor on the pallet jack. Once plaintiffs supervisor realized that the load was unstable, he instructed plaintiff to “balance [the compressor] so that it didn’t tip over” as the supervisor continued to move it. According to the deposition testimony of plaintiff, he also observed at that time that the compressor was “kind of shaky on the pallet jack.” Thus, the record establishes that plaintiff was well aware of the unstable nature of the load while he was still in a safe location. Nonetheless, plaintiff then walked behind the compressor and positioned himself between the wall and the compressor in an attempt to stabilize the compressor, which he already knew was “shaky.” According to his own deposition testimony, once he was behind the compressor and had placed himself in a position of peril, plaintiff further observed the compressor “tilting,” “like it wanted to fall off.” Contrary to the majority’s conclusion, plaintiff’s recognition that the compressor was unstable did not occur within a second of its fall. Instead, the compressor began to fall “less than a second” after plaintiff had observed its unstable nature from the doorway and already had moved across the room to his position behind the compressor—a position of peril in light of the known and progressive instability of the compressor. Thus, in our view, the record plainly establishes that plaintiff was fully aware of the unstable and “shaky” condition of the compressor load while he was in the doorway of the compressor room prior to his unfortunate attempt to “balance” it.

The majority also fails to acknowledge that, for the purpose of this appeal, defendant concedes that the warning label on the pallet jack was inadequate. Thus, the issue is not, as the majority concludes, whether the warning label was “insufficient.” Instead, the issue is whether the concededly “insufficient” warning label was a proximate cause of plaintiffs injuries. We conclude on these facts that it was not, based on the “general knowledge, observation or common sense” of any reasonable person standing in the doorway of the compressor room (Liriano v Hobart Corp., 92 NY2d 232, 241 [1998]). A reasonable person would recognize from that vantage point that the unstable and “shaky” condition of the compressor load on the pallet jack would have the potential for further tilting, tipping or falling, and thus as a matter of law the absence of any warning label to that effect was not a proximate cause of plaintiffs injuries (see id.).

We therefore would affirm the order and judgment granting defendant’s motion for summary judgment dismissing the complaint. Present—Centra, J.P., Peradotto, Carni, Pine and Gorski, JJ.