Worker Knew Forklift Had Defective Brakes, Assumed Risk

Saturday, January 27, 2007 | 0

By Larry Rogak

Carrero v. General Fork Lift Co., Inc., 2007 NY Slip Op 00105, (Appellate Division, Second Department)

The plaintiff allegedly was injured while operating a pallet jack owned by his employer and repaired by the defendant.

Approximately a month and a half before the plaintiff's accident, the plaintiff contacted the defendant to repair the pallet jack's malfunctioning brakes. The defendant repaired the brakes.

A few days before the accident, the plaintiff again contacted the defendant to have it service the pallet jack's brakes. However, on the date of the accident, the plaintiff operated the pallet jack even though he was aware that its brakes had not yet been repaired.

A Kings County jury returned a defense verdict, and plaintiff appealed.

The Appellate Division affirmed.

"Based upon the evidence, the trial court properly instructed the jury on the doctrine of implied assumption of risk. Contrary to the plaintiff's contention, the court properly instructed the jury to first consider the defendant's negligence before considering the plaintiff's comparative negligence and assumption of risk."

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see www.Rogak.com.

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