Court ruling deems New Scotland not responsible for resident’s injuries
NEW SCOTLAND — An Appellate Court ruling has decided that the town of New Scotland is not responsible for the injury of a resident, who caught his thumb in the tailgate of a town dump truck. The ruling overturned a lower court decision to not dismiss the lawsuit brought by William A. Barone.
According to court records, Barone, in July 2013, was receiving wood chips from the town, something that was provided as an informal amenity to residents. One employee, Jim Bess, went to look at horses on Barone’s property, while another employee, George Klopfer, activated a mechanism that opened the bottom of the tailgate before the truck box is raised hydraulically to unload the chips. Seeing chips get stuck in the truck bed, Barone slammed the tailgate twice to dislodge, catching his thumb the second time.
He filed a notice of claim that October for his injuries.
In March 2016, Justice Denise A. Hartman, of the Court of Claims and Acting Justice of the 3rd District Supreme Court, found the notice of claim sufficient, which the town then appealed.
The notice of claim was then brought before a panel of judges of the Appellate Division of the 3rd District Supreme Court. The Appellate Division is the second rung in the state’s three-tiered court system, it hears appeals for the Supreme Court. The state’s top court, the Court of Appeals, selects precedent setting cases to hear.
The decision, written on Dec. 29, by Justice Michael C. Lynch, ruled that, despite Klopfer’s presence, Barone acted of his own accord, and dismissed the claim.
James J. Burns, of Murphy, Burns, Barber, & Murphy LLP, which represented the town, said the firm had argued in both cases that the injuries were of Barone’s doing.
“I think it was the right decision,” said Burns, “I think it was legally correct to reverse the order of Justice Hartman below.”
The firm has represented the town on a variety of matters, said Burns, and worked on this case over the past three years. Burns said it comes at no cost to the town because expenses are covered by the town’s insurance.
Barone and the lawyer representing him, Robert A. Becher, did not respond for comment.
