Kerr v. United Parcel Service

Appellate Division of the Supreme Court of New York

Kerr v. United Parcel Service

160 A.D.2d 675, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 3843

CourtAppellate Division of the Supreme Court of the State of New York

DecidedApril 2, 1990

StatusPublished

This text of 160 A.D.2d 675 (Kerr v. United Parcel Service) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kerr v. United Parcel Service, 160 A.D.2d 675, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 3843 (N.Y. Ct. App. 1990).

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Opinion

—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Wood, J.), dated September 13, 1988, which, upon granting [676]*676the defendant’s motion pursuant to CPLR 4401 for judgment during trial dismissing the complaint for failure to establish a prima facie case of negligence, made at the close of the plaintiff’s case, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff allegedly sustained injuries when she came into contact with some boxes, causing her to fall on the loading dock at the factory where she worked. While an employee of the defendant United Parcel Service (hereinafter UPS) had delivered the boxes to the factory, the plaintiff did not present any direct evidence that the UPS employee had placed the boxes on the loading dock. Further, the circumstantial evidence as to the placement of the boxes was "equally consistent with the absence as with the presence of a wrongful act” on the part of the UPS employee; hence, "that meaning must be ascribed which accords with [the] absence” of a wrongful act (Digelormo v Weil, 260 NY 192, 199-200; see, White v Lehigh Val. R. R. Co., 220 NY 131, 135-136; Abbott v St. Luke’s Mem. Hosp. Center, 38 AD2d 176, 179). Accordingly, the trial court was justified in granting the defendant’s motion to dismiss the complaint at the close of the plaintiff’s case.

The plaintiff’s other contentions do not warrant reversal of the judgment. Bracken, J. P., Lawrence, Kunzeman and Kooper, JJ., concur.

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—In an action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Westchester County (Wood, J.), dated September 13, 1988, which, upon granting [676]*676the defendant’s motion pursuant to CPLR 4401 for judgment during trial dismissing the complaint for failure to establish a prima facie case of negligence, made at the close of the plaintiff’s case, dismissed the complaint.

Ordered that the judgment is affirmed, with costs.

The plaintiff allegedly sustained injuries when she came into contact with some boxes, causing her to fall on the loading dock at the factory where she worked. While an employee of the defendant United Parcel Service (hereinafter UPS) had delivered the boxes to the factory, the plaintiff did not present any direct evidence that the UPS employee had placed the boxes on the loading dock. Further, the circumstantial evidence as to the placement of the boxes was "equally consistent with the absence as with the presence of a wrongful act” on the part of the UPS employee; hence, "that meaning must be ascribed which accords with [the] absence” of a wrongful act (Digelormo v Weil, 260 NY 192, 199-200; see, White v Lehigh Val. R. R. Co., 220 NY 131, 135-136; Abbott v St. Luke’s Mem. Hosp. Center, 38 AD2d 176, 179). Accordingly, the trial court was justified in granting the defendant’s motion to dismiss the complaint at the close of the plaintiff’s case.

The plaintiff’s other contentions do not warrant reversal of the judgment. Bracken, J. P., Lawrence, Kunzeman and Kooper, JJ., concur.

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Bluebook (online)

160 A.D.2d 675, 554 N.Y.S.2d 38, 1990 N.Y. App. Div. LEXIS 3843, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kerr-v-united-parcel-service-nyappdiv-1990.

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