Sprague v. Louis Picciano, Inc.

Casey, J. (concurring in part and dissenting in part).

Assuming that the trucker had a duty to warn plaintiff of the absence of spacers between the bundles of pipe, the record establishes that the trucker’s breach of such a duty was not a proximate cause of plaintiff’s injuries. Accordingly, we would affirm the judgment dismissing plaintiff’s complaint against the trucker, defendant L. J. Kennedy.

Plaintiff was injured while he and his co-workers were unloading the second bundle of pipe. They had successfully unloaded the first bundle, but not without encountering some difficulty due to the absence of spacers. They again encountered difficulty due to the absence of spacers when they tried to unload the second bundle, and plaintiff’s injuries were sustained while he and his co-workers were attempting to overcome the problems created by the lack of spacers. The record establishes that plaintiff and his coworkers were well aware of the absence of the spacers and the dangers created thereby. A warning from the trucker would have been superfluous. Thus, while the absence of spacers, for which the trucker was not responsible, may have been a proximate cause of plaintiff’s injuries, the trucker’s failure to warn of the lack of spacers was not a factor in plaintiff’s injuries since he and his co-workers were well aware of the danger before the accident occurred.

Mahoney, P. J., and Kane, J., concur with Weiss, J.; Casey and Levine, JJ., concur in part and dissent in part in an opinion by Casey, J.

Judgment entered March 15, 1983 reversed, on the law, without costs, complaint against defendant L. J. Kennedy reinstated, and matter remitted to Supreme Court for a new trial.

Judgment entered March 22, 1983 affirmed, without costs.