Morejon v. Rais Construction Company

851 N.E.2d 1146 (2006)

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Nature of the Case

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Facts

P sued D alleging that Pardo was fatally injured while delivering building materials to D for a job it was doing at the residence owned by Barry and Susan Kleinman. Pardo's brother and sister-in-law (Alejandro and Maria) testified that D had engaged Fabio to pick up boxes from a hardware store and deliver them to the Kleinman house the morning of December 26, 1998, a Saturday. They claimed that they accompanied Fabio to the site, where a roll of roofing material fell from the roof and hit him on the head. A man at the house opened the door but neither Maria nor Alejandro could identify him, nor did they tell him that there had been an accident. Maria acknowledged that Fabio did not seek any medical treatment for the injury until the end of February 1999. D testified that he never left roofing materials on the Kleinmans' roof. D also testified that his crew stopped work at the site three days before the incident. Barry Kleinman supported D's assertions. D claims he did not engage Fabio to do any work on that day as D had let him go weeks before out of concern that Fabio's extreme headaches were posing a safety problem for Fabio and others. D was not told of the accident until April of 1999. Barry Kleinman testified that he was at the house the afternoon of December 26, 1998, and saw no evidence of work being done. He said it had snowed the day before and there were no tracks or disturbances in the fresh snow. P moved for summary judgment. D argued that there were disputed questions of fact, including whether the accident had even occurred. The court granted summary judgment on res ipsa loquitur. The Appellate Division reversed, stating that res ipsa loquitur 'may not be used as the basis for granting summary judgment in favor of a plaintiff on the issue of liability.' P appealed.