New York Court Grants Partial Summary Judgment in Trucking Wrongful Death Case – Nin Kao v. Alvarez

By September 21, 2011 Trucking Accidents

Most of the wrongful death cases I read about as a Missouri tractor-trailer accident attorney have to do with victims in other vehicles or on foot. In Nin Kao v. Alvarez, a case out of New York Supreme Court in Queens County, the controversy was over the death of a worker who was knocked out of a cherry-picker after a truck drove across the machine’s arm. Michelle Nin Kao, administrator of the estate of Xihui Ding, sued truck driver Neil Alvarez; his employer; the owner of the trailer he was pulling at the time of Ding’s death; and several defendants involved in the construction project Ding was working on. The Supreme Court of New York granted summary judgment to the construction defendants but denied it to the trucking defendants.
Ding was an employee of Star Window & Design who was installing windows in a construction project in Queens. While he was sitting in the bucket of the cherry picker, the arm was retracted in a way that left the arm extending into the road. Alvarez was driving past the arm at the time, and a part of his semi truck hit the arm of the cherry picker, causing the bucket to shake and drop Ding to his death. Nin Kao sued for common-law negligence and in the case of the construction defendants, for violations of New York labor laws. The defendants moved and cross-moved for summary judgment, with the trucking defendants arguing that they owed Ding no duty other than a common-law duty of reasonable care. Construction defendant NY Preferred also argued that the equipment was not under its control.
The court first dispensed with the trucking defendants. Alvarez and the trucking companies relied on deposition testimony from Alvarez and from an official with NY Preferred. However, the court said, this deposition testimony failed to establish how exactly the accident occurred. Without that testimony, the court said, there remains a genuine issue of material fact, which is enough to survive a summary judgment motion. The court also rebuffed arguments from Lease Line, the trucking company employing Alvarez, that it cannot be held vicariously liable for actions by Alvarez because it failed to submit evidence showing that an exception called the Graves Amendment applies. Next, NY Preferred argued that it cannot be liable because it was not an owner, agent or general contractor of the premises where the accident took place, a requirement under the New York labor law in question. On this issue, the court said, NY Preferred has submitted contradictory evidence as to who was the general contractor — again creating an issue of material fact as to some parts of the labor law. However, the court found summary judgment was appropriate as to another area, and common-law negligence, because it demonstrated that it was not in control of Ding’s work. Finally, the court denied summary judgment on a host of indemnification claims, finding they were premature.
This case is a good window into the legal complexities of dealing with deaths and serious injuries that take place when one or more participants are working. The trucker, his employer and the company that owned his trailer are all separate entities; and it’s not unusual for all three to have separate trucking insurance policies. Even if the victim had been an individual driver who was not at work, that still means at least four insurers arguing over liability and percentage of responsibility. This is one of the reasons it’s important to get help from an experienced St. Louis semi truck accident lawyer as soon as you realize you’re interested in pursuing a legal claim. Another reason is that trucking insurance companies can sometimes be very aggressive very early in the case, sometimes even contacting victims’ families on the day of the crash. This early start allows them to make a financial offer to people who are shocked and unable to think about their true financial needs, even if those needs are already clear. I strongly recommend to all victims that they politely turn this kind of offer down and contact our southern Illinois big rig accident attorneys for help.


Carey, Danis & Lowe represents clients who have lost a loved one or suffered serious injuries in a large truck accident that was not their fault. To tell us about your case at a free, confidential consultation, send us an email or call 1-877-678-3400 today.
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