The First Department determined defendant's motion for summary judgment in this personal injury case was properly granted. Plaintiff, a delivery truck driver, was injured unloading loose boxes from a trailer owned by defendant. Plaintiff alleged the shrink wrap securing the boxes broke, which led to his injury unloading the loose boxes. The defendant demonstrated it lacked actual and constructive notice of the failure of the shrink wrap. The fact that shrink wrap had failed on other occasions did not raise a question of fact. The court noted that plaintiff was not obligated to pick up the loose boxes, so the failed shrink wrap was a condition leading to his injury but was not the cause:
Defendant established its entitlement to judgment as a matter of law first by showing that it did not create the alleged hazardous condition. Defendant submitted, inter alia, plaintiff's testimony that he and defendant's employees inspected the trailer before he left defendant's facility to commence deliveries, and did not observe loose boxes on the floor. Nor did plaintiff observe loose boxes when he re-secured the load after his first delivery on the day of his accident … . Defendant also showed that it lacked actual or constructive notice that there were boxes on the trailer's floor. Plaintiff testified he did not notify defendant about the loose boxes before he decided to manually unload them at his second delivery of the day … . …
The possibility of injury arose only when plaintiff voluntarily opted to pick up the boxes and toss them to a store employee, even though he was not required to do so … .
Furthermore, plaintiff's certified packing expert failed to identify any professional or industry standard to substantiate his assertions … . The fact that defendant may have been aware that shrink-wrapping had previously come loose from other pallets did not establish that defendant had constructive notice that the subject pallet was loose before plaintiff sustained the injuries alleged … . Lynch v C & S Wholesale Grocers, Inc., 2018 NY Slip Op 00110, First Dept 1-9-18
NEGLIGENCE (NOTICE OF DANGEROUS CONDITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))/NOTICE (NEGLIGENCE, DANGEROUS CONDITION, DEFENDANT DEMONSTRATED IT DID NOT HAVE ACTUAL OR CONSTRUCTIVE NOTICE OF THE FAILURE OF SHRINK WRAP USED TO SECURE BOXES, PLAINTIFF WAS INJURED MOVING THE LOOSE BOXES (FIRST DEPT))