Hull v. Pike Co.

• Decision Date: 11 July 2019
• Docket Number: 527408
• Citation: 106 N.Y.S.3d 191,174 A.D.3d 1092
• Parties: Craig D. HULL, Respondent, v. The PIKE COMPANY, Appellant.
• Court: New York Supreme Court — Appellate Division

174 A.D.3d 1092

106 N.Y.S.3d 191

Craig D. HULL, Respondent,

v.The PIKE COMPANY, Appellant.

527408

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: May 28, 2019

Decided and Entered: July 11, 2019

Law Offices of Theresa J. Puleo, Syracuse (Michelle M. Davoli of counsel), for appellant.

Barney Grossman Dubow & Troy, LLP, Ithaca (William J. Troy of counsel), for respondent.

Before: Egan Jr., J.P., Lynch, Clark, Devine and Pritzker, JJ.

MEMORANDUM AND ORDER

Egan Jr., J.P. Appeal from an order of the Supreme Court (Cassidy, J.), entered August 24, 2018 in Tompkins County, which denied defendant's motion for summary judgment dismissing the complaint.

On December 2, 2011, plaintiff, a facilities worker employed by Cayuga Medical Center (hereinafter CMC), was operating a scissor lift in a CMC parking lot – replacing light bulbs on certain exterior pole lighting – when the lift tipped over and fell to the ground. As a result, plaintiff sustained numerous injuries, including, among other things, four fractured ribs, a fractured sternum and multiple fractures to his left foot. Plaintiff had borrowed the subject scissor lift earlier that morning from defendant, a building contractor that was performing certain unrelated construction work at CMC.¹ Plaintiff thereafter commenced this action against defendant, alleging defendant's negligent entrustment of the scissor lift to him and seeking damages for the personal injuries that he sustained. Following joinder of issue, defendant moved for summary judgment dismissing the complaint. Supreme Court denied defendant's motion, determining that a question of fact existed "as to whether ... defendant knew that ... plaintiff was likely to use the equipment in such a manner as to create an unreasonable risk of harm to others" and/or whether plaintiff's conduct was the sole proximate of his own injuries. Defendant appeals.

We affirm. As relevant here, "[t]he tort of negligent entrustment is based on the degree of knowledge the supplier of a chattel has or should have concerning the entrustee's propensity to use the chattel in an improper or dangerous fashion" ( Perkins v. County of Tompkins, 160 A.D.3d 1189, 1190, 74 N.Y.S.3d 648 [2018] [internal quotation marks and citation omitted] ). In turn, to establish a cause of action under a theory of negligent entrustment, it must be demonstrated that the defendant had "some special knowledge concerning a characteristic or condition peculiar to the plaintiff which renders [his or her] use of the chattel[, i.e., the scissor lift,] unreasonably dangerous" ( Zara v. Perzan, 185 A.D.2d 236, 237, 586 N.Y.S.2d 139 [1992] ; see Hamilton v. Beretta U.S.A. Corp., 96 N.Y.2d 222, 236, 727 N.Y.S.2d 7, 750 N.E.2d 1055 [2001] ; Graham v. Jones , 147 A.D.3d 1369, 1371, 46 N.Y.S.3d 329 [2017] ; Splawnik v. Di Caprio, 146 A.D.2d 333, 335, 540 N.Y.S.2d 615 [1989] ; see also Restatement [Second] of Torts § 390 ).

In support of its motion, defendant submitted, among other things, plaintiff's deposition testimony and that of Robert Reagle, a project superintendent for defendant. Reagle testified that, prior to the accident, he made arrangements to allow CMC to borrow a scissor lift to change the subject light bulbs. Although Reagle testified that he "had no idea who was going to be running [the subject scissor lift]," he "assumed [CMC's] people [were] trained" on the proper use thereof. Plaintiff, meanwhile, testified that, although he had experience operating certain types of aerial lifts, i.e., boom lifts and Genie lifts, he had never operated a scissor lift prior to November 30, 2011. On November 30, 2011 – two days prior to the subject accident – plaintiff initially borrowed a small scissor lift from defendant; however, after having difficultly maneuvering the lift, one of defendant's employees had to verbally instruct him how to drive it. Ultimately, that lift could not reach the height necessary to change the subject light bulbs and, on December 2, 2011, plaintiff borrowed a larger scissor lift from defendant. Plaintiff testified that he had similar difficulties operating the larger scissor lift and, again, after observing his inability to raise the lift, another of defendant's employees thereafter instructed him that the lift had to be on level ground in order to operate properly. Although plaintiff was able to check the light bulbs on two or three different poles, after he parked the scissor lift at the base of the fourth pole and was standing on the scissor lift's platform approximately 25 feet in the air, the lift tilted and fell to the ground. Reagle testified that, a few days after the accident, he learned from a fellow project superintendent that, prior to the accident, plaintiff had allegedly told one of defendant's employees that he did not know how to...