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Supreme Court, Kings County, New York.

Andreas FOURTOUNIS, Plaintiff, v. MJB SERVICE STATION, INC., Defendant.

Decided: May 29, 2009

Zalman & Schnurman, New York, for the Plaintiff Andreas Fourtounis. Lewis Johs Avallone Aviles, LLP, New York, for Defendant MJB Service Station.

The primary issue presented here is whether the plaintiff had assumed the risk of injury and was the sole proximate cause of his accident when he stood on the mechanical lift to clean his windshield in the service station on which his taxicab was on to have the oil changed, and was speaking to his wife on his cell phone when the mechanic raised the lift.   Plaintiff finished his telephone conversation, stepped back and fell down causing his injury.   Plaintiff did not know that the lift had been raised.   The mechanic was unaware that plaintiff was on the lift when he raised it.

Under these facts this is an issue of first impression in New York State.   Plaintiff, Andreas Fourtounis (Fourtounis), commenced this personal injury action alleging that his accident was caused by the negligence of defendant, MJB Service Station, Inc. (MJB).  MJB moves for summary judgment pursuant to CPLR Section 3212 dismissing the complaint.


The facts are essentially uncontroverted.   On November 25, 2006, plaintiff took his taxicab to the MJB service station to get his heating system repaired.   Jovanni Salgado (Salgado), a mechanic working for MJB, drove the taxi onto a mechanical lift.   Although the lift was not elevated, it was, nonetheless, approximately 1 foot above the floor.   While Salgado was working on the heater, Fourtounis requested that the oil and antifreeze be changed.

Salgado completed the heater repair and began cleaning the inside of the windshield.   Fourtounis requested that Salgado give him the windex spray bottle so that he could clean the outside of the windshield.   Salgado gave Fourtounis the windex and Fourtounis stepped onto the lift and began cleaning the windshield.   Fourtounis then answered a call on his cell phone and began a conversation with his wife while still standing on the lift.   Salgado, unaware that Fourtounis was now on the lift, elevated it to approximately 5 to 6 feet off the ground so that he could drain the fluids.   Fourtounis, unaware of his change in elevation, concluded his phone call and stepped backwards, falling the 5 to 6 feet to the floor sustaining injuries.


 Summary judgment is a drastic remedy that should only be employed when there is no doubt as to the absence of any triable issues of a material fact (Kolivas v. Kirchoff, 14 A.D.3d 493, 787 N.Y.S.2d 392 [2d Dept. 2005] ) “Issue finding, rather than issue determination is the courts function.   If there is any doubt about the existence of a triable issue of fact, or a material issue of fact is arguable, summary judgment should be denied” (Celardo v. Bell, 222 A.D.2d 547, 635 N.Y.S.2d 85 [2d Dept. 1995] ).

The party moving for summary judgment has the initial burden of coming forward with admissible evidence that establishes the absence of a material issue of fact (CPLR § 3212[b];  GTF Marketing, Inc. v. Colonial Aluminum Sales, Inc., 66 N.Y.2d 965, 968, 498 N.Y.S.2d 786, 489 N.E.2d 755 [1985] ).   However, once the moving party has satisfied this obligation, the burden shifts;  “the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action” (Zuckerman v. City of New York, 49 N.Y.2d 557, 560, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ).

 MJB argues that it is entitled to summary judgment dismissing plaintiff's Complaint “on the grounds that the plaintiff assumed the risk of injury by voluntarily placing himself on the mechanical lift” and “the plaintiff's negligence is the sole proximate cause of the accident” (Defendant's affirmation and reply affirmation in support).

 Prior to the enactment of the comparative negligence statute (CPLR § 1411) assumption of risk was an absolute bar to a plaintiff's negligence action.   After the enactment of this statute, the doctrine of assumption of risk does not necessarily constitute a complete bar to liability by the defendant and its application is generally a question of fact to be resolved by a jury.   Assumption of risk is not an absolute defense but a measure of the defendant's duty of care and thus has survived the enactment of the comparative fault statute (Turcotte v. Fell, 68 N.Y.2d 432, 510 N.Y.S.2d 49, 502 N.E.2d 964 [1986], Weaver v. Trackey, 272 A.D.2d 705, 707 N.Y.S.2d 530 [3d Dept. 2000] ).

Although assumption of risk is no longer treated as an absolute defense, “it still helps and serves to define the standard of care under which a defendant's duty is defined and circumscribed because assumption of risk in this form is really a principle of no duty, or no negligence and so denies the existence of any underlying cause of action.   Without a breach of duty by the defendant, there is thus logically nothing to compare with any misconduct of the plaintiff' ” (Morgan v. State, 90 N.Y.2d 471, 662 N.Y.S.2d 421, 685 N.E.2d 202 [1997], quoting, Prosser and Keeton, Torts, Section 68 pg. 496-97 [5th Ed.];  Cotty v. Town of Southampton, 2009 WL 1415963, [2d Dept. 2009] ).

 The assumption of risk doctrine provides that voluntary participants in activities where there is a heightened risk of danger “may be held to have consented, by their participation, to those injury-causing events which are known, apparent or reasonably foreseeable consequences of the participation” (Turcotte, supra, at 439, 510 N.Y.S.2d 49, 502 N.E.2d 964).   Although assumption of risk occurs most often during participation in leisure and sporting events, such participation is not a prerequisite.   Assumption of risk cases that do not involve sporting or leisure activities may occur when the plaintiff is injured by either the active conduct of the defendant or its agents or, by the passive conduct of the defendant as landowner.

An example of the plaintiff being injured through the defendant's active conduct occurred in Watson v. State, 52 N.Y.2d 1022, 438 N.Y.S.2d 302, 420 N.E.2d 100 [1981].   In Watson, the plaintiff alleged that he was injured during a physical altercation with his teacher.   The Court of Appeals ruled that, because the plaintiff had assaulted the teacher he, “is barred from recovery by virtue of the doctrine of assumption of risk, since plaintiff, by assaulting his teacher, assumed the risks of any injuries which may have foreseeably occurred” (id. at 1022-23, 438 N.Y.S.2d 302, 420 N.E.2d 100).

Also, in Westerville v. Cornell University, 291 A.D.2d 447, 737 N.Y.S.2d 389 [2d Dept. 2002], “[t]he plaintiff, a mental health care professional attending a training seminar administered by the appellant, allegedly injured her left knee while being restrained by another attendee during a practice session designed to teach physical restraint techniques to control agitated patients.”   The Second Department ruled that the plaintiff was well aware of the risk of injury inherent in this dangerous training exercise activity, had assumed this risk of injury and, thus, was barred from recovery.

Sy v. Kopet, 18 A.D.3d 463, 795 N.Y.S.2d 75 [2d Dept. 2005], is an example of a case where the injury was caused by the defendant's passive conduct as a landowner.   In Sy, the defendant barred the plaintiff from entering his second floor boarding room because he had failed to pay the rent.   The plaintiff was injured when he attempted to enter his second floor room by climbing window guard rails and a gutter on the outside of the house.   The Court found that plaintiff had assumed the risk of injury and was barred from recovery.

The common element to both categories of these cases is that the plaintiff voluntarily placed himself in a hazardous situation that relieved the defendant of any duty of care and was the sole proximate cause of plaintiff's injury.   In the instant case, the plaintiff undoubtedly placed himself in a hazardous position.   This did not, however, relieve Salgado of his duty of care owed by him to the plaintiff in his operation of the mechanical lift.   Because Salgado owed a duty of care to the plaintiff, whose presence in the garage and near the lift he was aware of, the defendant has failed to meet its prima facie burden of demonstrating its entitlement to summary judgment.

 Defendant also argues that the plaintiff's negligence was the sole proximate cause of the accident.   An issue of fact exists as to whether the defendant was negligent and whether any such negligence was a substantial factor in causing the accident.


Based on the foregoing, the defendant's motion for summary judgment is denied.

This constitutes the Decision and Order of the Court.


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