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PLAINTIFF’S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION.

The Third Department, reversing Supreme Court, after finding the notice of claim was sufficient notice of the negligent supervision cause of action, determined the defendant town was entitled to summary judgment dismissing the complaint. Town workers were in the process of delivering a load of wood chips to plaintiff. When the wood chips stopped flowing from the dump truck, plaintiff attempted to free the chips by slamming the tailgate. Plaintiff's thumb and wrist were crushed by the tailgate. Although plaintiff alleged that he called out to the driver (Klopfer) to ask if he should slam the tailgate, there was no response. The Third Department found plaintiff's unilateral decision to slam the tailgate was the sole proximate cause of his injury:

The dispute centers on whether defendant owed a duty of care to plaintiff and, if so, whether defendant's breach of duty was a proximate cause of plaintiff's injuries. From a general perspective, we recognize that Klopfer had a duty to exercise reasonable care in the operation of a municipal dump truck. Moreover, Klopfer was certainly aware of plaintiff's presence during the unloading process. That said, the Court of Appeals has emphasized a “reluctance to extend liability to a defendant for failure to control the conduct of others” … . By his testimony, plaintiff confirmed that he acted of his own accord, slamming the tailgate twice within only a few seconds, providing little if any opportunity for Klopfer to respond — even if he heard plaintiff call out … . There was no defect in the tailgate and the risk of injuring one's hand when slamming a tailgate is obvious as a matter of common sense. No resident, including plaintiff, had ever previously attempted to intervene in the discharge process and, while [a second town worker] had stepped away, plaintiff knew he was on site and could have sought his assistance. Under these circumstances, we conclude that plaintiff's intervening action in slamming the tailgate was the sole proximate cause of his injuries … . Barone v Town of New Scotland, 2016 NY Slip Op 08927, 3rd Dept 12-29-16

NEGLIGENCE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/MUNICIPAL LAW (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/NOTICE OF CLAIM (NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)/PROXIMATE CAUSE (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW)/NEGLIGENT SUPERVISION (PLAINTIFF'S ACTIONS WERE THE SOLE PROXIMATE CAUSE OF HIS INJURY, NEGLIGENT SUPERVISION CAUSE OF ACTION SHOULD HAVE BEEN DISMISSED AS A MATTER OF LAW, NOTICE OF CLAIM WAS SUFFICIENT NOTIFICATION OF THE NEGLIGENT SUPERVISION CAUSE OF ACTION)

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