You are here: / / ALLEGEDLY OPERATING A TREE-TRIMMING BUSINESS WITHOUT A LICENSE AND ENTRUSTING...
,

ALLEGEDLY OPERATING A TREE-TRIMMING BUSINESS WITHOUT A LICENSE AND ENTRUSTING THE TREE-TRIMMING TRUCK TO PLAINTIFF’S CO-WORKER, IF NEGLIGENT, WERE NOT PROXIMATE CAUSES OF PLAINTIFF’S INJURY, THE DANGEROUS CONDITION ON THE TRUCK WHICH CAUSED PLAINTIFF’S INJURY WAS OPEN AND OBVIOUS, AND THE ACCIDENT WAS AN ‘EXTRAORDINARY OCCURRENCE,’ SO THERE WAS NO DUTY TO WARN (SECOND DEPT).

The Second Department determined the allegations that defendants were operating a tree-trimming business without a license and negligently entrusted the tree-trimming to one Perez (with whom plaintiff worked) were not proximate causes of the injury. Plaintiff caught a ring on his finger on a spike on a metal step on the truck and his finger was severed. The court noted that the danger was open and obvious and the accident was an ‘extraordinary occurrence’ so there was no duty to warn:

“Evidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was [a proximate] cause of the event which produced the harm”… . Thus, ” liability may not be imposed upon a party who merely furnishes the condition or occasion for the occurrence of the event but is not one of its causes'” … . Further, “proximate cause is no less essential an element of liability because the negligence charged is premised in part or in whole on a claim that a statute or ordinance . . . has been violated” … .

… [E]ven if the defendants were negligent in operating a tree-trimming business without a license or in lending or renting or entrusting the truck to Perez, such negligent acts only furnished the occasion for the plaintiff’s accident … , but were not a proximate cause of the accident. The defendants additionally demonstrated, prima facie, that they did not have any “special knowledge concerning a characteristic or condition peculiar to [Perez] which render[ed] [his] use of the [truck] unreasonably dangerous,” as is required to establish a negligent entrustment cause of action … . In opposition, the plaintiff failed to raise a triable issue of fact as to either negligence or negligent entrustment.

With respect to the cause of action alleging a violation of the defendants’ duty to warn, the defendants demonstrated … that any danger posed by the stairs was open and obvious and known to the plaintiff from his prior use of the truck … . Moreover, the plaintiff’s accident was an “extraordinary occurrence” … . “[T]here is no duty to warn against an extraordinary occurrence, which would not suggest itself to a reasonably careful and prudent person as one which should be guarded against”… . Deschamps v Timberwolf Tree & Tile Serv., 2019 NY Slip Op 04133, Second Dept 5-29-19

 

You might also like
DEFENDANT’S REQUEST TO REPRESENT HIMSELF SHOULD HAVE BEEN HONORED, CRITERIA EXPLAINED.
AN INFORMAL JUDICIAL ADMISSTION BY PLAINTIFF BANK’S FORMER COUNSEL IN THIS FORECLOSURE ACTION RAISED A QUESTION OF FACT WHETHER THE LOAN HAD BEEN MODIFIED (SECOND DEPT).
ALTHOUGH THE BANK’S MOTION FOR SUMMARY JUDGMENT WAS NOT OPPOSED, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED, THE BANK DID NOT DEMONSTRATE STANDING WITH EVIDENCE ADMISSIBLE UNDER THE BUSINESS RECORDS EXCEPTION TO THE HEARSAY RULE (SECOND DEPT).
SEX OFFENDERS HAVE A RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL IN MENTAL HYGIENE LAW ARTICLE 10 PROCEEDINGS.
Late Motion to Amend Complaint Should Have Been Granted–No Showing of Prejudice
PLAINTIFF REAL ESTATE BROKER’S CAUSES OF ACTION (SEEKING THE REAL ESTATE COMMISSION) AGAINST THE BUYERS WHO SUBSEQUENTLY BOUGHT THE PROPERTY USING A DIFFERENT BROKER SHOULD HAVE BEEN DISMISSED; THE QUANTUM MERUIT, TORTIOUS INTERFERENCE WITH CONTRACT AND FRAUD CAUSES OF ACTION WERE NOT MADE OUT (SECOND DEPT).
AFTER THE FORECLOSURE SALE BUT BEFORE THE CLOSING, THE MORTGAGOR STARTED AN ACTION ALLEGING FRAUD IN THE FORECLOSURE PROCEEDINGS; THE FRAUD ACTION DID NOT RENDER THE TITLE UNMARKETABLE SUCH THAT THE PURCHASER COULD SET ASIDE THE FORECLOSURE SALE AND HAVE THE DOWN PAYMENT RETURNED (SECOND DEPT).
THE TRIAL JUDGE DID NOT GIVE COUNSEL MEANINGFUL NOTICE OF A SUBSTANTIVE JURY NOTE; NEW TRIAL ORDERED (SECOND DEPT). ​

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

PLAINTIFF SUED DEFENDANT ATTORNEYS ALLEGING INACCURATE ADVICE CAUSED HER TO... INJURY CAUSED BY THE INHALATION OF ASPERGILLUS FUNGUS PROPERLY DEEMED A COMPENSABLE...