MANNING v. CURTICE BURNS INC (2004)

Plaintiff commenced this action seeking damages for injuries he sustained when a can fell off a pallet and struck him around his left ankle, and now appeals from an order denying his motion for partial summary judgment on liability pursuant to the doctrine of res ipsa loquitur.   At the time of the accident, plaintiff was working as a service technician and was standing next to a stretch wrapper machine to determine the cause of its malfunction.   Plaintiff asked that a pallet be brought to the machine so that he could watch the machine operate.   Using a forklift, an employee of defendant Agri Link Foods, Inc. picked up a pallet containing seven layers of one-gallon cans of vegetables and drove the forklift to the stretch wrapper machine.   When the forklift reached the machine, one of the cans fell from the top of the pallet and struck plaintiff, who was standing with his back to the forklift.

Contrary to defendants' contention, summary judgment may be granted in a res ipsa loquitur case where a plaintiff makes a prima facie showing of the three elements of that doctrine and the “prima facie proof is so convincing that the inference of negligence arising therefrom is inescapable and unrebutted” (Salter v. Deaconess Family Medicine Ctr. [Appeal No. 2], 267 A.D.2d 976, 977, 701 N.Y.S.2d 586;  see Harmon v. United States Shoe Corp., 262 A.D.2d 1010, 692 N.Y.S.2d 566;  see also Morgan v. Solomon, 305 A.D.2d 982, 984, 758 N.Y.S.2d 458).   Plaintiff, however, is not entitled to summary judgment in this case because he failed to establish that no negligence on his part contributed to the happening of the event (see Lee v. Bonavita, 216 A.D.2d 8, 627 N.Y.S.2d 373;  Cacciolo v. Port Auth. of N.Y. & N.J., 186 A.D.2d 528, 529, 588 N.Y.S.2d 350;  see generally States v. Lourdes Hosp., 100 N.Y.2d 208, 211-212, 762 N.Y.S.2d 1, 792 N.E.2d 151, rearg. denied 100 N.Y.2d 577, 764 N.Y.S.2d 387, 796 N.E.2d 479).   Plaintiff admitted that a person could be injured by standing in front of a forklift and that he heard and saw the forklift coming, yet he stood next to the stretch wrapper machine and turned his back to the approaching forklift.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: