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United States District Court, N.D. New York

June 3, 2004.


The opinion of the court was delivered by: FREDERICK SCULLIN, Chief Judge, District



  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's claims.


  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) (quotation omitted).

  With these standards in mind, the Court will address Plaintiff's claims.

 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 dangerous.

  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 this action.


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