From Casetext: Smarter Legal Research

McMurry v. Inmont Corp.

Appellate Division of the Supreme Court of New York, Second Department
Aug 23, 1999
264 A.D.2d 470 (N.Y. App. Div. 1999)

Summary

holding that, given plaintiff's experience and training, "a warning would not have added anything to the appreciation of this hazard"

Summary of this case from Burke v. Spartanics Ltd.

Opinion

August 23, 1999.

Appeal from the Supreme Court, Orange County (Slobod, J.).


Ordered that the appeal from the order is dismissed; and it is further,

Ordered that the judgment is affirmed; and it is further,

Ordered that one bill of costs is awarded to the respondents appearing separately and filing separate briefs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see, Matter of Aho, 39 N.Y.2d 241, 248). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see, CPLR 5501 [a] [1]).

The plaintiff Terry McMurry, Jr., was an employee of the third-party defendant, KP Enterprises, Inc., a fabric processing concern. His duties included working on a large industrial apparatus known as a "coating" machine which cured and embossed bolts of fabric. In an attempt to remove a "foldover" from a piece of fabric as it was being processed through the machine, he placed his hand onto the moving material very near the point where it was about to enter a series of highpowered rollers. He was injured when his hand became caught in the rollers.

Where the danger inherent in a person's actions is open and obvious or, at the least, readily discernible by use of the senses, "lack of a warning about that danger * * * obviate[s] the failure to warn as a legal cause of an injury resulting from that danger" ( Lirano v. Hobart Corp., 92 N.Y.2d 232, 241; see also, Smith v. Stark, 67 N.Y.2d 693, 694; Hernandez v. Biro Mfg. Co., 251 A.D.2d 375; Bigness v. Powell Elecs., 209 A.D.2d 984). In this regard, we note that the injured plaintiff was an experienced industrial machine operator, and had received training with respect to the operation of the coating machine. In addition, his removal of the "foldover" was attempted while he was standing on the machine's catwalk, an awkward position which necessitated his leaning over a metal bar to reach the material.

Under these circumstances, the injured plaintiff should have been aware of the patent hazard inherent in his conduct, and a warning would not have added anything to the appreciation of this hazard ( see, Liriano v. Hobart Corp., supra). Thus, the Supreme Court correctly concluded that the respondents were entitled to summary judgment with respect to the cause of action to recover damages for negligent failure to warn ( see, Sukljian v. Ross Son Co., 69 N.Y.2d 89).

The appellants' remaining contentions are without merit.

Santucci, J. P., Krausman, Florio and Feuerstein, JJ., concur.


Summaries of

McMurry v. Inmont Corp.

Appellate Division of the Supreme Court of New York, Second Department
Aug 23, 1999
264 A.D.2d 470 (N.Y. App. Div. 1999)

holding that, given plaintiff's experience and training, "a warning would not have added anything to the appreciation of this hazard"

Summary of this case from Burke v. Spartanics Ltd.

holding that, given plaintiff's experience and training, "a warning would not have added anything to the appreciation of this hazard"

Summary of this case from Galletta v. Valmet, Inc.

holding that in light of plaintiff's experience, "a warning would not have added anything to the appreciation of the hazard"

Summary of this case from Hamm v. Willamette Industries
Case details for

McMurry v. Inmont Corp.

Case Details

Full title:TERRY McMURRY, JR., et al., Appellants, v. INMONT CORPORATION et al.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Aug 23, 1999

Citations

264 A.D.2d 470 (N.Y. App. Div. 1999)
694 N.Y.S.2d 157

Citing Cases

Keene v. Rosas

Nemet Motors established its prima facie entitlement to judgment as a matter of law by submitting, inter…

Roberts v. Cybex International, Inc.

Therefore, the need to fully hook the barbell onto the rungs to prevent such an occurrence was open and…