In Fourtounis v. MJB Service Station, Inc., the defendant moved for summary judgment based on the plaintiff’s assumption of the risk and based on the theory that the plaintiff’s actions were the sole proximate cause of the accident. The accident occurred when the plaintiff took his taxicab to the defendant’s service station for repairs. The cab was placed on a mechanical lift located one foot off of the ground. As the car was being repaired, the plaintiff asked for a bottle of Windex to clean his windshield and stepped onto the lift. The mechanic then raised the lift five to six feet in order to drain fluid from the cab, with the plaintiff standing on the lift. The plaintiff, who at this point was talking on his cell phone, was unaware that the lift was raised. He concluded the phone call, stepped backwards and fell 5 to 6 feet to the floor, sustaining injuries.

The court denied the defendant’s motion holding that although the plaintiff voluntarily placed himself in a hazardous situation, the mechanic was not relieved of his duty of care owed to the plaintiff because the mechanic knew the plaintiff was in the garage and near the lift. Moreover, an issue of fact exists at to whether the defendant was negligent and whether such negligence was a substantial factor in the accident.

Thanks to Maju Varghese for his contribution to this post.

http://www.courts.state.ny.us/reporter/3dseries/2009/2009_29236.htm