Lugo v. Purple & White Markets, Inc., Index No. 300682/2008
| Citation | 2011 NY Slip Op 34006 |
| Decision Date | 30 March 2011 |
| Docket Number | Index No. 300682/2008,Third-Party Index No. 84169/2008 |
| Parties | WILLIAM LUGO, Plaintiff, v. PURPLE & WHITE MARKETS, INC. d/b/a ASSOCIATED SUPERMARKET, WHITE ROSE, INC., WHITE ROSE FOODS, INC., ROSE TRUCKING CORP. and DIGORGIO CORP., Defendants. WHITE ROSE, INC., WHITE ROSE FOODS, INC., ROSE TRUCKING CORP. and DIGIORGIO CORP., Third-Party Plaintiffs, v. FICA TRANSPORTATION INC., Third-Party Defendant. |
| Court | United States State Supreme Court (New York) |
DECISION AND ORDER
PRESENT: Hon. Lucindo Suarez
Upon the notice of motion dated December 14, 2010 of third-party defendant Fiea Transportation, Inc. and the affirmation and exhibits submitted in support thereof (Motion Sequence #12); the affirmation in opposition dated February 25, 2011 of defendants and third-party plaintiffs White Rose, Inc., White Rose Foods, Inc., Rose Trucking Corp. and DiGIorgio Corp. s/h/a Digorgio Corp. and the affidavits (2), exhibits and memorandum of law submitted therewith; the affirmation in reply dated March 4, 2011 of third-party defendant Fica Transportation, Inc.; the notice of cross-motion dated December 29, 2010 of defendants and third-party plaintiffs White Rose, Inc., White Rose Foods, Inc., Rose Trucking Corp. and DiGiorgio Corp. s/h/a Digorgio Corp. and theaffirmation, exhibits and memorandum of law submitted in support thereof (Motion Sequence #12); the affirmation in opposition dated February 2, 2011 of plaintiff and the affidavits (2) and exhibits submitted therewith, the papers also being submitted in opposition to the motion for summary judgment of defendant Purple & White Markets, Inc., sued herein as Purple & White Markets, Inc. d/b/a Associated Supermarket; the affirmation in opposition dated February 25, 2011 of third-party defendant Fica Transportation, Inc.; the affirmation in reply dated March 4, 2011 of defendants and third-party plaintiffs White Rose, Inc., White Rose Foods, Inc., Rose Trucking Corp. and DiGiorgio Corp. s/h/a Digorgio Corp.; the notice of motion dated December 28, 2010 of defendant Purple & White Markets, Inc., sued herein as Purple & White Markets, Inc. d/b/a Associated Supermarket and the affirmation and exhibits submitted in support thereof (Motion Sequence #13); the affirmation in reply dated March 3, 2011 of defendant Purple & White Markets, Inc., sued herein as Purple & White Markets, Inc. d/b/a Associated Supermarket; and due deliberation; the court finds:
The motions of third-party defendant Fica Transportation, Inc. ("Fica") and defendant Purple & White Markets, Inc., sued herein as Purple & White Markets, Inc. d/b/a Associated Supermarket ("P&W"), and the cross-motion of defendants and third-party plaintiffs White Rose, Inc. ("WRI"), White Rose Foods, Inc. ("WRFI"), Rose Trucking Corp. ("RTC") and DiGiorgio Corp. s/h/a Digorgio Corp. ("DiGiorgio"), collectively, the "White Rose defendants," all seeking summary judgment, are consolidated for decision herein, inasmuch as all involve common questions of law and fact and inasmuch as plaintiff has submitted a single opposition to the motions of P&W and the White Rose defendants.
Plaintiff William Lugo, a driver employed by third-party defendant Fica, alleges to have fallen from a trailer owned or leased by WRFI, a subsidiary of WRI, while delivering grocery items to a store owned by defendant P&W. The trailer had been loaded by one or more of the White Rosedefendants and was attached to a tractor supplied by Fica. While unloading boxes, plaintiff fell from the side door of the trailer onto rollers that had been provided and placed by employees of P&W to assist in the unloading, and fell from the rollers to the ground. It is alleged that the White Rose defendants improperly loaded the trailer such that plaintiff had no room to maneuver in the trailer to unload the goods, being thereby forced into the doorframe, and that they failed to provide plaintiff with a trailer having a side platform on which to stand while unloading, and that P&W improperly placed the rollers without plaintiff's knowledge. The White Rose defendants impled Fica, each alleging causes of action for common law indemnity, common law contribution, contractual indemnification and breach of contract for failure to procure insurance on behalf of RTC.
P&W's Motion for Summary Judgment
P&W moves for summary judgment dismissing the complaint and the cross-claims of the other defendants on the ground that the rollers were not a proximate cause of plaintiff's accident because the accident was caused by the lack of a side platform on which to stand while unloading, the failure to load the trailer such that there was room to maneuver at its side door, and plaintiff's election to unload the trailer in an unsafe manner, all of which caused plaintiff to slip from the trailer itself onto the rollers. P&W also argues that, premised upon the testimony of P&W employees, plaintiff was the sole proximate cause of his injuries because he voluntarily stepped onto the rollers.
Plaintiff testified that the accident occurred while he balanced in the doorframe of the rear side trailer door, with both feet turned to the right on the doorframe itself and one hand bracing himself on the trailer, and handed cases to the P&W employees. He slipped off the frame while facing toward the interior of the trailer after having handed off two boxes, both feet leaving thedoorframe simultaneously; fell onto rollers, both feet landing simultaneously; and slipped backward onto the ground. He released his grasp on the trailer simultaneously as he slipped from the doorframe. The rollers were behind him at the level of the trailer and although he did not know the distance between where he had been standing on the doorframe and the rollers, he knew he had been standing on the doorframe and not the rollers. He testified that he, himself, was not using rollers on the day of the accident. He also testified that he did not know where the rollers came from, whether the rollers were there when he began removing things from truck, whether the rollers were attached to trailer or how the rollers were elevated to the height of the trailer. He did not see the rollers at any time before he fell on them.
P&W employee Pedro Ramirez ("Ramirez") testified that he and plaintiff set up the rollers together, and P&W employee Antonio Cruz ("Cruz") testified that he observed plaintiff adjust the end of the rollers abutting the trailer, indicating that plaintiff was aware of the rollers. Ramirez testified that the accident occurred when plaintiff voluntarily stepped onto the rollers to gain height to reach the top of a loaded pallet, although elsewhere Ramirez testified that he did not know if he was physically able to see plaintiff's foot come into contact with the rollers as opposed to the doorframe or the general area. Cruz testified that plaintiff put his left foot on the rollers when he turned to place a box on the rollers, and that his foot slipped while he faced and looked toward the rollers.
The differing versions of the facts present questions of credibility which cannot be decided here. See Gaspari v. Sadeh, 61 A.D.3d 405; 876 N.Y.S.2d 46 (1st Dep't 2009); Chunn v. New York City Hons. Auth., 55 A.D.3d 437, 866 N.Y.S.2d 145 (1st Dep't 2008). Viewing the facts most favorably to plaintiff, see Shands v. Escalona, 44 A.D.3d 524, 843 N.Y.S.2d 504 (1st Dep't 2007), appeal denied, 10 N.Y.3d 705, 886 N.E.2d 803, 857 N.Y.S.2d 38 (2008), and drawing allreasonable inferences in his favor, see Segree v. St. Agatha's Convent, 77 A.D.3d 572, 909 N.Y.S.2d 364 (1st Dep't 2010), there are questions as to the precariousness of plaintiff's positioning, and the P&W employees' knowledge thereof, such that the placement of rollers behind plaintiff without his knowledge contributed to his injuries. "Proximate cause is a question of fact for the jury where varying inferences are possible." Sweeney v. Bruckner Plaza Assoc., 57 A.D.3d 347, 348, 869 N.Y.S.2d 453, 454 (1st Dep't 2008), appeal dismissed, 12 N.Y.3d 832, 908 N.E.2d 918, 881 N.Y.S.2d 10 (2009). Accordingly, P&W failed to demonstrate prima facie entitlement to summary judgment.
The White Rose Defendants' Motion for Summary Judgment
The White Rose defendants move for summary judgment dismissing the complaint and all cross-claims on the ground that plaintiff's actions in unloading the trailer in an imprudent and unauthorized manner (choosing to unload through the side door rather than the rear door and then balancing precariously in a doorframe) constituted the sole proximate and/or superseding cause of his injuries.
Plaintiff testified that the daily manifest provided by the White Rose defendants would state the order of deliveries to be made and where each individual store's merchandise was located within the trailer, which would indicate whether unloading was to be through the side or rear door of the trailer. P&W store manager John Branco ("Branco") testified that the driver's decision as to a rear or side delivery depended on the order of delivery, and that since trailers are unloaded from back to front, the day's first delivery would have to be through the rear and subsequent deliveries could be made through the side because the driver would then have room to move. Branco testified that his employees do not offer input to the driver as to how merchandise should be unloaded, and while Martinez testified that he jointly decided with plaintiff how to unload, Martinez made clear that thebasis of the decision was the location of the merchandise within the trailer. Cruz testified that whether an unload occurs from the side or rear depends on the driver and where the groceries are located within the trailer.
Fica's president, Paul Rodrigues ("Rodrigues"), testified that the training provided to newly-hired Fica drivers included choosing the door from which to unload, which depended upon the totality of the circumstances, but both...
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