Skip to content

News & Knowledge

National Retail Department Store Earns Summary Judgment in FedEx Freight Driver’s Negligence Suit

Case Study

National Retail Department Store Earns Summary Judgment in FedEx Freight Driver’s Negligence Suit

April 22, 2021

The U.S. District Court for the Eastern District of New York granted summary judgment in favor of a national department store in a negligence suit involving a FedEx freight driver who suffered injuries while picking up an empty trailer at our client’s distribution facility—effectively saving our client several hundreds of thousands of dollars. While the suit was originally filed by the plaintiff’s counsel in state court in their preferred venue, the case was removed to federal court based on diversity and amount in controversy.

On the date of the incident, the plaintiff had dropped his loaded trailer off in the front of the distribution facility and bob-tailed around to the unpaved portion of the rear lot where the empty trailers are kept.   The plaintiff located an empty FedEx trailer, which was parked very close to the trailer next to it and had to “wedge” between the two trailers to access the landing gear. In doing so, the plaintiff allegedly stepped on a chunk of blacktop, concrete, or debris, which the plaintiff described as “roughly the size of a brick,” causing him to injure his ankle. The plaintiff had been to this particular distribution facility, a massive property with a 600,000-square-foot warehouse and approximately 200 truck bays, at least 10 times before.

As a result of the injury, the plaintiff underwent two surgeries on his ankle and was out of work as a FedEx freight driver for over two years before returning temporarily to “light duty”—resulting in a workers’ compensation lien that exceeded $100K. The plaintiff testified that he had complained about the condition of the property to the on-site vendor responsible for placing and moving empty trailers, but never directly to our client.

As a result, Goldberg Segalla’s Todd R. Harris, vice chair of the firm’s Retail and Hospitality group, moved for summary judgment, arguing that the plaintiff failed to establish that our client had actual or constructive notice of the purported defective condition. The plaintiff further argued that it was well known among both FedEx freight drivers and our client’s employees that the lot was in severe disrepair.

After oral arguments, the court granted our motion, agreeing that the plaintiff failed to present evidence that our client had actual or constructive notice of the specific dangerous or defective condition, and dismissed the suit against our client.

The decision is a victory for Todd, who argued the case before the Eastern District of New York, and Gary A. Marshall Jr., who assisted in drafting the legal briefs.


Attorneys in our Retail and Hospitality group offer strong defense, comprehensive counsel, and long-term strategic guidance to all types of retail, hospitality, and commercial development businesses. With the knowledge and resources to handle complex litigation and arbitration and provide sound risk-avoidance counsel, we also offer our clients all the benefits of a relationship with a firm that values teamwork and professionalism. Partnering with Goldberg Segalla means peace of mind that lasts—through your present legal concerns and well into the future, when our attorneys will continue to keep you up to date about emerging issues and best practices to help you recognize and manage risk, and focus on growing your business.