The plaintiff in this action worked for a coffee distribution company when with knowledge of a broken light, exited from work through the loading dock and tripped over the bottom of a concrete ramp that had been poured to elevate trucks to the surface of the dock, fracturing his patella which required surgery. He contended he fell due to a nonworking light and an improperly designed ramp which failed have handrails and yellow visibility paint.
Although he received Workers’ Compensation benefits, he sued his employer and his employer’s parent company as well as a defunct affiliated company, as well as his employer’s landlord and a company affiliated with the landlord that shared the building. G&S took over the defense of all five defendants. Only the contractor that built the ramp was not being defended by G&S.
G&S moved for summary judgment on behalf of plaintiff’s employer based on the exclusivity provisions of the WCL as well as on behalf of its parent based on affidavits and testimony establishing that the parent controlled the front and back office operations of the employer, its wholly owned subsidiary. G&S moved on behalf of the parents affiliated company based on evidence that it was no longer in existence on the date of the plaintiff’s accident and never had any relationship to the property. G&S moved on behalf of the landlord on the grounds that it was merely an out of possession landlord with no contractual duty of repair other than with respect to structural issues and no common law duty other than with respect to structural building code violations. A main point of contention between our expert architect and the plaintiff expert engineer was whether the ramp was structural and whether it violated the building code. We also moved on behalf of the defendant affiliated with the landlord on the grounds that it had no ownership interest or duty of care with respect to the premises. Finally, we also argued that the plaintiff’s claims should be dismissed since the cause of his accident was his admitted failure to look down at the ramp after descending the stairs and as a manager in charge of the safety, including the subject light and ramp, he knew of the conditions in the loading dock, but nevertheless proceeded anyway, assuming the risk of his injury.
In an extraordinary 20 page decision Judge Jeffrey S. Brown, of the Nassau County Supreme Court dismissed all five insured defendants with a clean sweep of every argument, leaving our co-defendant left in the case by itself. The court even agreed that plaintiff could not establish the accident was proximately caused by the alleged defective ramp, lighting and absence of handrails because of his testimony that he knew the light was out and knew the ramp was there, was not looking down and had an alternative exit out of the building.
The decision threaded the needle in obtaining a dismissal for the parent corporation on the basis of the WC bar without making the statement or concluding that the parent and subsidiary were alter egos, thereby preserving the corporate distinction between the entities. We were also successful with establishing with expert testimony that the concrete poured ramp was not structural and thus not something that the out of possession landlord had notice of, and extracted the entities not affiliated with the premises with appropriate affidavits.