Case Results
Gordon & Silber Obtains Summary Judgment for Department Store Operator and Restaurant in Elevator Accident Case — June 2009.
Type of Case: Premises Liability — Alleged Building Code Violation in Freight Elevator Caused Puncture and Crush Injury to Plaintiff's Dominant Hand.
Venue: Supreme Court, Kings County.
Background Facts: Plaintiff suffered a puncture and crush injury to his dominant hand when the doors of a freight elevator slammed on his hand while at work. Plaintiff alleged that his supervisor had instructed him to close the elevator even though he had not been trained in its operation. He claimed that the pull rope that was used to close the doors was missing which caused him to grab the door by the latch. When he pulled on the latch, the door came down more quickly than he anticipated. The upper and lower doors met together, crushing his hand with the latch impaling it. Plaintiff claimed nerve damage and a permanent disability.
We represented the employer and operator of the restaurant as well as the department store owner, pursuant to an indemnification agreement. Plaintiff attempted to sue the operator of the restaurant on the theory that the entity he named in the complaint was not the entity that actually employed him. Plaintiff also named the repair company which had an agreement to maintain the elevator. While we did not represent this company, we cooperated with it on defense strategy and shared an expert.
Our Strategy: On behalf of the department store, we moved for summary judgment based on the absence of notice. We set out to prove that the department store did not operate the restaurant, and neither maintained nor controlled the elevator. We argued that where a landlord merely has the right to re-enter the premises, the plaintiff must establish that his injury was caused by a structural defect or a building code violation. Here, the rope pull was obviously not a structural violation. We hired an expert elevator engineer to establish that the absence of a pull cord was not a violation of the building code. We also argued that the absence of the rope pull was not the proximate cause of the accident. Rather, it was the plaintiff's decision to pull the latch, instead of the available handle which was the proximate cause of the accident. With respect to the restaurant, we supplied affidavits from the legal and human resources department in addition to deposition testimony to tease apart the corporate relationships to prove that plaintiff was in fact employed by the defendant that he named in the complaint and that the other closely related named defendants did not have responsibility for the subject elevator.
Special Problems: Plaintiff had sued various related restaurant entities, some of which had administrative functions with respect to the restaurant. The restaurant operated under a couple d/b/a's and accordingly, neither the plaintiff nor his supervisors were sure who his actual employer was. The Workers Compensation policy was issued in the same of a parent corporation. This made the normally straight forward application of the Workers Compensation defense, anything but.
Result: Judge David Schmidt, in a 62 page decision, dismissed all of plaintiff's claims. He even found that the absence of the rope pull was not the proximate cause of the accident.
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