The action commenced was filed by plaintiff against defendant. That action was consolidated with the actions against the remaining defendants. The complaints assert causes of action for common law negligence and violation of Labor Law §§200, 240, 241(6) and the Industrial Code of the State of New York 12 NYCRR §23-1.7(b)(1) et seq. This action arises out of an incident wherein the plaintiff sustained injuries while working on a construction worksite and was caused to fall as a result of an open, loose and/or unsecure manhole cover and for which injuries the plaintiff seeks monetary damages.
A New York Personal Injury Lawyer said that the plaintiff testified to the effect that he began employment as a laborer with his employer and was working for them on the date of the accident. As a laborer, he was involved in demolition, removing debris and throwing it into a dumpster. He was working at apartments inside a building with four other workers gutting bathrooms and kitchens, and taking out walls by removing sheet rock. The debris was taken to dumpsters outside the building. Two dumpsters being used by his employer were placed by the curb on the north side of the street and a third dumpster was placed on the south side of the road across from the building he was working on. His supervisor told him to tell the sheet rock guys to back up the truck parked on the north side so he could move the empty dumpster from the front of the sheetrock truck over to the full dumpster so it would be closer to where he was working. Plaintiff then walked down the sidewalk in front of the building, used the port-a-potty across the street from his building, remained on the south side of the street, and spoke to the shop Stewart. He then walked at an angle between the two sheetrock trucks, crossed in front of the one sheetrock truck and walked up onto the grassy area and asked the sheetrock driver to move his truck. He was about fifteen feet from the manhole cover, but did not observe it at that point or at any time up to the occurrence of the accident. He walked backwards away from the truck as the truck was backing up, directing the truck driver so the truck would not hit the low-hanging wires. He then stepped on the manhole cover with his right foot. The manhole cover, which was on top of the manhole, opened up by turning up on its edge, and his both his legs fell into the manhole. Hence, an action was filed in court.
A New York Injury Lawyer said that the defendant/third-party plaintiff impleaded plaintiff’s employer on the date of the accident, by commencing a third-party action for common law indemnification, contractual indemnification, breach of agreement, and judgment over against the third-party defendant. In cross-motion, the defendants seek an order pursuant to 22 NYCRR §202.21(e)vacating the Note of Issue and Certificate of Readiness.
The issue to be resolved in this case is whether or not the employer is negligent and should be held liable to the injuries sustained by the plaintiff.
In New York, to establish a prima facie case of negligence, a plaintiff must prove (1) that the defendant owed a duty to plaintiff, (2) a breach thereof, and (3) injury proximately resulting therefrom. If, defendant’s negligence were a substantial factor, it is considered to be a “proximate cause” even though other substantial factors may also have contributed to plaintiff’s injury. In order to establish the third element, proximate cause, the plaintiff must show that defendant’s negligence was a substantial factor in bringing about the injury. Because a finding of negligence must be based on the breach of a duty, a threshold question in tort cases is whether the alleged tortfeasor owed a duty of care to the injured party. Summary judgment is rarely appropriate in a negligence action because the issue of whether a plaintiff or defendant acted reasonably under the circumstance could rarely be resolved as a matter of law.
Based upon the foregoing factual issues set forth above, it cannot be determined who the parties are who owed a duty to the plaintiff and what the defendants’ respective roles and responsibilities were. Therefore, no determination as to negligence can be made based upon the evidentiary submissions and adduced testimonies.
There should be someone who will protect the rights of the workingmen in case they suffered injuries while working. Here in Stephen Bilkis and Associates, our New York Personal Injury Lawyers will tell what your rights are and how to enforce these rights. Contact our New York injury Attorneys who are expert in this field.