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Imbraguglio v. Great Atlantic & Pacific Tea Company3/10/2000
re there is a dispute whether the risk is assumed or not, that question is usually left to the jury." Id. at 526, 77 A.2d at 146.
We cannot determine, on the instant record, whether a shift in the contents of a bin, while a worker is retrieving dropped cartons, is an expected or unexpected occurrence. Respondents have failed to meet their burden of producing evidence on that point.
The principle governing the issue before us is stated in Restatement (Second) of Torts § 496D (1965), dealing with "Knowledge and Appreciation of Risk," and reading:
"Except where he expressly so agrees, a plaintiff does not assume a risk of harm arising from the defendant's conduct unless he then knows of the existence of the risk and appreciates its unreasonable character."
Comment b further explains as follows:
"The basis of assumption of risk is the plaintiff's consent to accept the risk and look out for himself. Therefore he will not be found, in the absence of an express agreement which is clearly so to be construed, to assume any risk unless he has knowledge of its existence. This means that he must not only be aware of the facts which create the danger, but must also appreciate the danger itself and the nature, character, and extent which make it unreasonable. Thus the condition of premises upon which he enters may be quite apparent to him, but the danger arising from the condition may be neither known nor apparent, or, if known or apparent at all, it may appear to him to be so slight as to be negligible. In such a case the plaintiff does not assume the risk. His failure to exercise due care either to discover or to understand the danger is not properly a matter of assumption of risk, but of the defense of contributory negligence."
On the present record, a trier of fact could find that the risk of shifting bin contents would appear negligible to a worker in Imbraguglio's position.
Respondents have presented their defense by emphasizing the absence of a guardrail on the pallet that Imbraguglio chose to use. They view the risk to be the risk of falling, without regard to the immediate cause of the fall. Although Imbraguglio possessed knowledge, as a matter of law, of the possibility of falling from the unguarded elevated pallet, because that danger was self-evident, the element of "appreciation" is less clear. In a case of the instant type, an important factor in the objective evaluation of appreciation of a plaintiff's risk, i.e., of the nature and magnitude of the potential injury , is the height at which the plaintiff was working without a guardrail. In the workplace context considerable guidance on the degree to which Imbraguglio is charged with appreciation of the risk can be gleaned from OSHA safety regulations.
The OSHA regulation dealing with the use of forklifts is 29 C.F.R. § 1910.178 titled "Powered industrial trucks." The only section of that regulation that relates to circumstances possibly analogous to those before us is § 1910.178(m)(12), which reads:
"Whenever a truck is equipped with vertical only, or vertical and horizontal controls elevatable with the lifting carriage or forks for lifting personnel, the following additional precautions shall be taken for the protection of personnel being elevated.
"(i) Use of a safety platform firmly secured to the lifting carriage and/or forks.
"(ii) Means shall be provided whereby personnel on the platform can shut off power to the truck.
"(iii) Such protection from falling objects as indicated necessary by the operating conditions shall be provided."
Subsection (m)(12) concerns itself with protecting p
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