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 plaintiffs accident, the plaintiff contacted the defendant to repair the pallet jacks malfunctioning brakes. The defendant repaired the brakes. A few days before the accident, the plaintiff again contacted the defendant to service the pallet jacks 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 plaintiffs contention, the court properly instructed the jury to first consider the defendants negligence before considering the plaintiffs comparative negligence and assumption of risk.

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