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
"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 ...