There is no doubt that Basch & Keegan law partner, Derek J. Spada, is a master of appeals. Time and time again, he triumphs in the Appellate Division. Last month, Derek beat the defendant’s summary judgment and then won another appeal for a Basch & Keegan client.
Our client was delivering food to a supermarket, tripped over a pallet jack that was left in a dimly lit walkway just inside of a rear entrance. Our client had been making similar deliveries to the premises for two years prior to the date of his accident.
On the day of the incident, he loaded the delivery cart and proceeded up a ramp to the entrance of the defendant's receiving area. The defendant's employee opened the door, but said nothing. Our client walked backwards into the building, which was necessary based upon the size of his cart and the orientation of the door because the door had to be held open to maneuver the cart through the doorway. While he was walking backward and pulling the cart, our client tripped over the forks of a pallet jack that protruded into the receiving area near the doorway. The pallet jack was left there several hours earlier by the night crew.
Although our client had previously observed pallet jacks in the defendant's receiving area, he explained that on this occasion the pallet jack was not in its normal charging location and had instead been left in an area that was marked a walkway directly inside of the door. The defendant's employee confirmed that the pallet jack had been left in the location where our client tripped over it and that the battery had likely died the night before.
Defendant contends that it bore no responsibility for our client’s fall, as his decision to enter the store backwards was the sole proximate cause of his accident, although that was the only way he could enter the building with the food cart. The defense also alleged that the pallet jack was open and obvious, and not inherently dangerous. However, the Supreme Court, Appellate Division 3rd Judicial Department found: "defendant failed to eliminate all triable issues of fact as to whether the pallet jack was inherently dangerous and failed to establish prima facie that [it] maintained the premises in a reasonably safe condition … Plaintiff's familiarity with the presence of pallet jacks in defendant's store and his decision to enter the doorway walking backwards are factors that may be considered with respect to plaintiff's comparative negligence, but do not establish that defendant was free from fault as a matter of law.”
As a result of this fall, our client sustained severe and permanent injuries to his neck, including multiple disc herniation’s. His injuries required surgery. He has been out of work since the accident.
Now that we beat the defendant’s summary judgment and won the appeal, the next step for justice is going to trial or obtaining a settlement. If you or a loved one has been injured, contact Basch & Keegan. We are here to help and will never give up on our clients. Call us: 845-338-8884.