| Potter v Jay E. Potter Lbr. Co., Inc. |
| 2010 NY Slip Op 02612 [71 AD3d 1565] |
| March 26, 2010 |
| Appellate Division, Fourth Department |
| Glen Potter, Appellant-Respondent, v Jay E. Potter Lumber Co.,Inc., Respondent, and James Leaton et al., Doing Business as Leaton Farms, Appellants. (AppealNo. 1.) |
—[*1] Walsh, Roberts & Grace, Buffalo (Thomas E. Roberts of counsel), for defendants-appellants. Cohen & Lombardo, P.C., Buffalo (James J. Nash of counsel), fordefendant-respondent.
Appeals from a judgment of the Supreme Court, Wyoming County (Mark H. Dadd, A.J.),entered March 26, 2009 in a personal injury action. The judgment, inter alia, dismissed theamended complaint and the cross claim against defendant Jay E. Potter Lumber Co., Inc.following a jury trial.
It is hereby ordered that the judgment so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff commenced this Labor Law and common-law negligence actionseeking damages for injuries he sustained while constructing a barn on property owned bydefendants James Leaton and Alan Leaton, doing business as Leaton Farms (hereafter, Leatondefendants). Plaintiff's employer, R&R Precision Construction (R&R), entered into a contractwith defendant Jay E. Potter Lumber Co., Inc. (Potter Lumber) to supply building materials forthe project, including aluminum sheeting to construct the roof of the barn. On the date of theaccident, an employee of Potter Lumber delivered a load of aluminum sheeting to theconstruction site on a flatbed truck. R&R used a forklift to unload the aluminum, and four R&Remployees, including plaintiff, positioned themselves on the back of the forklift to act ascounterweights for the load. After the forklift lifted the aluminum sheeting off of the flatbedtruck, the load became unstable and the forklift tipped forward, catapulting plaintiffapproximately 10 feet into the air. Plaintiff landed on the aluminum sheeting in front of theforklift.
In appeal No. 1, plaintiff and the Leaton defendants contend that Supreme Court erred indenying their post-trial motions to set aside the jury verdict finding that Potter Lumber was [*2]negligent but that its negligence was not a substantial factor incausing the accident. The judgment in appeal No. 1, inter alia, dismissed the amended complaintand the cross claim against Potter Lumber. In appeal No. 2, the Leaton defendants contend thatthe court erred in granting plaintiff's motion for a directed verdict against them on liability withrespect to Labor Law § 240 (1) at the close of proof.
Addressing first appeal No. 2, the Leaton defendants contend that Labor Law § 240(1) does not apply here because plaintiff neither fell from an elevated work surface nor wasstruck by a falling object. We reject that contention. "Labor Law § 240 (1) was designedto prevent those types of accidents in which the scaffold, hoist, stay, ladder or other protectivedevice proved inadequate to shield the injured worker from harm directly flowing from theapplication of the force of gravity to an object or person" (Ross v Curtis-PalmerHydro-Elec. Co., 81 NY2d 494, 501 [1993]). Here, the forklift had a rated operatingcapacity of 1,500 pounds and proved inadequate to lift the 2,780-pound load of aluminumsheeting. As a result, the forklift operator was unable to control the descent of the load, and theforklift tipped forward, catapulting plaintiff into the air. Thus, "the harm [to plaintiff] flow[ed]directly from the application of the force of gravity" to the load of aluminum hoisted by theforklift (Runner v New York Stock Exch., Inc., 13 NY3d 599, 604 [2009]). Two experts,as well as several employees of R&R, testified at trial that R&R should have used a truss craneto unload the aluminum sheeting in a safe manner. We thus conclude that the load "fell, whilebeing hoisted . . . , because of the absence or inadequacy of a safety deviceof the kind enumerated in [section 240 (1)]" (Narducci v Manhasset Bay Assoc., 96NY2d 259, 268 [2001]; see Bilderback v Agway Petroleum Corp., 185 AD2d 372, 373[1992], lv dismissed 80 NY2d 971 [1992]).
In appeal No. 1, we note that the Leaton defendants and plaintiff contend on appeal that theverdict with respect to the negligence of Potter Lumber was both inconsistent and against theweight of the evidence. Their contention concerning inconsistency is unpreserved for our review,however, because they failed to object to the verdict on that ground before the jury wasdischarged (see Skowronski v Mordino, 4 AD3d 782 [2004]). In any event, we concludethat the verdict with respect to Potter Lumber's negligence was neither inconsistent nor againstthe weight of the evidence. "A jury finding that a party was negligent but that such negligencewas not a proximate cause of the accident is inconsistent and against the weight of the evidenceonly when the issues are so inextricably interwoven as to make it logically impossible to findnegligence without also finding proximate cause" (id. at 783 [internal quotation marksomitted]). Moreover, "[w]here . . . 'an apparently inconsistent or illogical verdictcan be reconciled with a reasonable view of the evidence, the successful party is entitled to thepresumption that the jury adopted that view' " (Mascia v Olivia, 299 AD2d 883, 883[2002]).
Here, "the jury's findings are supported by a reasonable view of the evidence and arenot inconsistent as a matter of law" (Reynolds v Burghezi, 227 AD2d 941, 943 [1996];see Lemberger v City of New York, 211 AD2d 622 [1995]). The jury reasonably couldhave found that the negligence of Potter Lumber's employee in failing to ascertain the weight ofthe load was not a substantial factor in causing the accident. The trial testimony established thatnone of R&R's employees asked the Potter Lumber employee how much the load weighed, thatthey did not know the load capacity of the forklift, and that they decided to use the forkliftdespite the fact that they knew the load would be too heavy without the four employees ascounterweights. It also would have been reasonable for the jury to find that Potter Lumber'snegligence in loading the aluminum sheeting in an improper manner was not a substantial factorin causing the accident because it occurred during the unloading process. We thus conclude that" 'the finding of proximate cause did not inevitably flow from the finding of culpable conduct' "(Skowronski, 4 AD3d at 783). Present—Scudder, P.J., Peradotto, Carni, Greenand Gorski, JJ.