United States District Court, N.D. New York
June 3, 2004.
JOSEPH N. DITONDO, Plaintiff,
NATIONAL RENT-A-FENCE, NATIONAL BUSINESS GROUP, INC., and NATIONAL CONSTRUCTION RENTALS, Defendants
The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District
MEMORANDUM-DECISION AND ORDER
Plaintiff filed a personal injury complaint in this Court on January 3,
2003. He alleges diversity of citizenship as a basis for jurisdiction. Presently
before the Court is Defendants' motion for summary judgment as to all of
Plaintiff, a resident of Binghamton, New York, and a former truck
driver, delivered a truckload of bundled fencing to Defendants' premises
in Raleigh, North Carolina, on October 27, 2000. Plaintiff, his co-worker
(a truck driver trainee), and one of Defendants' employees began
unloading the bundled fencing from a truck. Since Defendants' employee, a
forklift operator, had trouble maneuvering the forklift to unload the
bundles, Plaintiff and the trainee stood on opposite sides of the bundles
and attempted to use pieces of wood to lever the bundles higher and give
the forklift operator a better position. The forklift operator backed up
before the bundles were secured to the forklift, and the bundles fell
onto Plaintiffs arm. Plaintiff sustained permanent injuries.
Defendants moved for summary judgment on February 27, 2004, on the
ground that North Carolina law, which applies to this action, bars
Plaintiffs claim because he was contributorily negligent. See
Dkt. No. 21. Plaintiff filed his papers in opposition to the motion on
March 15, 2004. See Dkt. No. 24. The Court struck Plaintiffs
opposition papers on March 25, 2004, because they failed to comply with
Local Rule 7.1. See Dkt. No. 25.*fn1 III. DISCUSSION
A. Summary Judgment Standard
A court should grant a motion for summary judgment only if "there is no
genuine issue as to any material fact and when, based upon facts not in
dispute, the moving party is entitled to judgment as a matter of law."
Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991) (citing
Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548,
2552-53, 91 L.Ed.2d 265 (1986)); see also Fed.R.Civ.P.
56(c). In making this determination, the court must resolve all
ambiguities and draw all reasonable inferences in a light most favorable
to the non-moving party. See id. (citing United States v.
Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993, 994,
8 L.Ed.2d 176 (1962) (per curiam)). Where a plaintiff has failed to
respond to a defendant's motion for summary judgment, a court may
not automatically grant summary judgment to the moving party;
rather, a court must still ascertain whether the moving party has
met the strictures of Rule 56 of the Federal Rules of Civil Procedure.
See Champion v. Artuz, 76 F.3d 483, 486 (2d Cir. 1996)
With these standards in mind, the Court will address Plaintiff's
B. Choice of Law
"Federal courts sitting in diversity look to the choice-of-law rules of
the forum state." IBM v. Liberty Mut. Ins. Corp., 363 F.3d 137,
143 (2d Cir. 2004) (citation omitted). New York courts apply an interest
analysis to tort claims. See Krock v. Lipsay, 97 F.3d 640, 645
(2d Cir. 1996) (citations omitted). The interest analysis requires that
the court apply the law of the state with greater interest in the outcome
of the litigation. See id. (citations omitted). The situs of the tort and the domiciles of the parties are two factors which courts
use to measure which state has the greatest interest. See Meyers v.
Epstein, 232 F. Supp.2d 192, 195 (S.D.N.Y. 2002) (citations
omitted). Where the conflict at issue is based upon a loss-allocating
law, as opposed to a conduct-governing law, the situs of the tort becomes
somewhat less important in discerning the relative interests of the two
states. See Schultz v. Boy Scouts of Am., Inc., 65 N.Y.2d 189,
197 (1985) (applying Neumeier v. Keuhner, 31 N.Y.2d 121 (1972)
(other citations omitted)). Under Neumeier, which sets forth
several different tests to govern loss-allocation conflicts, where the
parties to litigation are from different states and the tort occurred in
one party's domicile, the state where the tort occurred generally has the
strongest interest in the outcome of the litigation. See Caruolo v.
John Crane, Inc., 226 F.3d 46, 57 (2d Cir. 2000) (citing
[Neumeier, 335 N.Y.S.2d at 70]).
Defendants contend that North Carolina law should apply to this action
because North Carolina, as the location of both the injury and of
Defendants' facility, has the greatest number of contacts with this
litigation. Defendants argue further that, since contributory negligence
is a loss-allocation doctrine, under the Neumeir analysis, North
Carolina's law applies.
As Defendants point out, the defense of contributory negligence
allocates the losses of an accident between the parties. Furthermore,
Defendants are domiciliaries of North Carolina, and Plaintiff's injuries
occurred in North Carolina, further strengthening the contacts with North
Carolina. Accordingly, the Court will apply North Carolina law in this
case. C. Defendant's Claims of Contributory Negligence
North Carolina is a traditional contributory negligence jurisdiction;
any negligence on the part of an injured plaintiff completely bars the
plaintiff from recovering for his injuries. See, e.g., Cameron v.
Canady, 157 N.C. App. 132, 134 (2003) (quoting Champs
Convenience Stores v. United Chemical Co., 329 N.C. 446, 455,
406 S.E.2d 856, 861 (1991) (quotation omitted)). However, since contributory
negligence is an affirmative defense, the defendant bears the burden of
proving that the plaintiff was contributorily negligent. See
Martishius v. Carolco Studios, Inc., 562 S.E.2d 887, 897 (2002)
(citation omitted). The North Carolina Supreme Court has stated that
courts must be extremely cautious in resolving issues of contributory
negligence at the summary judgment stage. See id. at 896 ("The
existence of contributory negligence is ordinarily a question for the
jury; such an issue is rarely appropriate for summary judgment, and only
where the evidence establishes a plaintiff's negligence so clearly that
no other reasonable conclusion may be reached." (citation omitted)).
Defendants contend that Plaintiff's admissions show that Plaintiff did
not exercise ordinary care in handling the bundles of fencing. Defendants
list several undisputed facts which they claim establish Plaintiffs
negligence. For instance, Plaintiff testified that, when he supervised
the loading of the truck before delivery, a very large forklift was used.
However, Plaintiff permitted Defendants' forklift operator to use a small
forklift to unload the truck. Further, Plaintiff acknowledged that he
knew that each bundle of fencing weighed 1,100 pounds and that he was
using the wooden lever for the purpose of helping the operator to grip
the bundles. Therefore, Plaintiff must have known that the forklift did
not have a good grip on the bundles, and so he knowingly put himself in
harm's way by continuing to attempt to lever the bundle onto the forks. Defendants emphasize that Plaintiff admitted that he had
knowledge and prior experience loading and unloading fencing and should
have known that placing a limb underneath bundles of fencing was
In turn, Plaintiff alleges that Defendants' forklift operator caused
the accident. According to Plaintiff, the operator positioned the
forklift poorly and drove it carelessly. Plaintiff testified that the
operator told him that he was unsure about operating the forklift. He
also testified that the forklift operator put the machine into reverse
too quickly and improperly located the tips of the forks within the
bundle, causing it to fall.
Although Defendants have shown that Plaintiff might have been
negligent, they have not shown that the particular danger Plaintiff
asserts that the forklift operator backed up excessively fast
would be "open and obvious" to a reasonable person. Further,
neither party has provided any information about the protocol for
removing bundles from flatbeds. If, in fact, handlers commonly and safely
use pieces of wood to lever bundles of fencing apart, then Plaintiff may
not have perceived that the bundles would fall on him. Therefore,
Defendants have not met the exceptionally high standard that North
Carolina courts have announced with respect to resolving issues of
contributory negligence at the summary judgment stage. Accordingly, the
Court denies Defendants' motion for summary judgment.
After carefully considering the file in this matter and the parties'
submissions, as well as the applicable law, and for the reasons stated
herein, the Court hereby
ORDERS that Defendants' motion for summary judgment is
DENIED in its entirety; and the Court further
ORDERS that Plaintiffs counsel is to initiate a telephone
conference through a professional conference operator with the Court and
opposing counsel at 9:30 A.M. on June 15, 2004, to set a trial date for
IT IS SO ORDERED.