3/7/2010Like it or not, you have to respect when a judge issues a courageous decision.
In Osorio vv. Kenart Realty, Inc., the apprentice-plaintiff sued for the personal injuries he sustained when the flammable glue he and his supervisor were using caught fire. Following a jury verdict that found the defendant property owner responsible (at least in part) for the worksite accident, the Kings County trial judge did something that is quite rare: he granted the defendant's motion to set aside a jury verdict as contrary to the weight of the evidence, and dismissed the case.
In granting the motion, the Court held that the plaintiff did not prove that the defendant had created the dangerous or defective condition; nor, according to the Court, did the defendant supervise the plaintiff's work that led to the accident. The Court then summarized the legal basis for its decision as follows:
"Certainly, the defendants had a duty the maintain their premises in a safe condition, but they did not have the onus to guard against hazards inherent in the plaintiff's work nor hazards caused by a condition that plaintiff was engaged to repair nor hazards which were readily observed by plaintiff considering his age, intelligence, and experience ...
"This Court acknowledges that when there is an 'inherently dangerous' situation a defendant is precluded from asserting the independent contractor theory ... However, to maintain such a position the plaintiff must provide proof of the dangerous nature of the work and that the danger was foreseeable. Here, plaintiff did not shoulder his burden of proof."
(This decision is scheduled to appear in tomorrow's edition of the New York Law Journal.)
Category: Construction Site Accidents
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