Apparently I'm not the only one who empathized with the plaintiff's trial lawyer in this case; the Appellate Division felt the same way.

In Beshay v. Eberhart, L.P., the plaintiff sustained serious personal injuries to his eye when, after removing his safety goggles for a short time, a piece from a circular saw that was being operated by one of his co-workers flew off and into his unprotected eye.

Based upon his attorney's statement during his opening remarks to the jury that the plaintiff had voluntarily removed the safety goggles he had been provided before the accident, the trial judge not only dismissed the plaintiff's claims that the defendants were liable under Labor Law section 241(6) (which imposes liability for specific statutory safety violations), but went further and dismissed the plaintiff's claims in their entirety - including those for common law negligence and strict products liability.

In reinstating the majority of the plaintiff's claims, the Appellate Court noted that the lower court had gone too far, and cited the following general rule:

"A dismissal of a complaint after the opening statement of a plaintiff's attorney is warranted only where it can be demonstrated either (1) that the complaint does not state a cause of action, (2) that a cause of action that is otherwise stated is conclusively defeated by something interposed by way of a defense and clearly admitted as a fact, or (3) that the counsel for the plaintiff, in his or her opening statement, by some admission or statement of fact, so completely compromised his or her case that the court was justified in awarding judgment as a matter of law to one or more defendants."

Since the plaintiff's attorney said nothing that compromised plaintiff's common law negligence or defective products claims, the trial court erred in dismissing those claims.
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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