| Vega v Restani Constr. Corp. |
| 2010 NY Slip Op 04503 [73 AD3d 641] |
| May 27, 2010 |
| Appellate Division, First Department |
| Minerva Vega, Respondent, v Restani Construction Corp.et al., Defendants, and General Fence Corporation, Appellant. |
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Order, Supreme Court, Bronx County (Geoffrey D. Wright, J.), entered February 27, 2009,which, in an action for personal injuries allegedly sustained when plaintiff maintenance workerattempted to move a garbage can containing improperly discarded concrete blocks, denied themotion of defendant General Fence Corporation (GFC) for summary judgment dismissing thecomplaint and all cross claims as against it, affirmed, without costs.
GFC, the fencing subcontractor on a project to renovate the park where plaintiff worked,established prima facie entitlement to summary judgment through an affidavit from its principal,who averred that GFC, hired by the park's owner, did not create the condition alleged to havecaused plaintiff's accident (see Stiver vGood & Fair Carting & Moving, Inc., 9 NY3d 253, 257 [2007]; Church v CallananIndus., 99 NY2d 104, 111 [2002]; Espinal v Melville Snow Contrs., 98 NY2d 136,140 [2002]). Plaintiff however, raises a triable issue of fact with regard to whether GFC createdthe overloading condition alleged, insofar as the evidence proffered shows that prior to the dateof the accident GFC and the general contractor had exclusive control over the park, including thearea where the subject garbage can was located, and that GFC's work may have involved thebreaking-up and removal of concrete. Accordingly, the existence of triable issues of fact, albeitcircumstantially, precludes the dismissal of the complaint as against GFC (see Koeppel vCity of New York, 205 AD2d 402, 403 [1994]).
Any claim that, even if proven, GFC's conduct in overloading the garbage cannot betantamount to negligence is without merit (12 NYCRR 23-2.1 [b]; Palladino v United StatesLines, 111 AD2d 656 [1985] [cause of action for the overloading of containers, allegedlycausing injury to the plaintiff was viable predicate mandating defense by insurance company];Keating v Cookingham, 223 AD2d 997 [1996] [court recognized cause of action forinjury to the plaintiff resulting from the overloading of garbage cans but dismissed action forother grounds]).
In support of its position, the dissent conflates two distinct points of law, neither of [*2]which, on the record here, mandates summary judgment in GFC'sfavor. It is true that generally an employee cannot sue for injuries caused by conditions inherentin the work he is tasked to perform (Imtanios v Goldman Sachs, 44 AD3d 383, 385-386 [2007], lvdismissed 9 NY3d 1028 [2008]). It is also true that "[w]hen a workman confronts theordinary and obvious hazards of his employment, and has at his disposal the time and otherresources (e.g., a co-worker) to enable him to proceed safely, he may not hold others responsibleif he elects to perform his job so incautiously as to injure himself" (Abbadessa v UlrikHolding, 244 AD2d 517, 518 [1997], lv denied 91 NY2d 814 [1998]; see alsoMarin v San Martin Rest., 287 AD2d 441, 442 [2001]; Keating at 998). However,contrary to the dissent's finding, on this record, there is no evidence supporting the conclusionthat plaintiff's job entailed the handling of very heavy garbage cans so as to conclude that theaccident was caused by a condition inherent in her work. Moreover, the evidence demonstratesthat the condition alleged, namely heavy chunks of cement in the garbage can plaintiff attemptedto move, was obscured, and thus not obvious or visible. Accordingly, since there is no evidencethat she confronted an obvious hazard and nevertheless chose to perform her job withoutthe aid of resources available to her, there is no support for the dissent's position that this actionwarrants dismissal pursuant to Abbadessa, Marin, or Keating.
We have considered GFC's remaining arguments and find them unavailing.Concur—Mazzarelli, J.P., Sweeny, Freedman and RomÁn, JJ.
Catterson, J., dissents in a memorandum as follows: I would reverse and dismiss thecomplaint against General Fence Corporation (hereinafter referred to as GFC) primarily on thegrounds that precedent mandates dismissal of a complaint where the hazard of the injurysustained is inherent in a plaintiff's employment. Furthermore, in my opinion, GFC is entitled tosummary judgment, as a matter of law, as the plaintiff failed to produce evidentiary proofsufficient to establish the existence of a triable issue of fact. Indeed, as GFC asserts, the plaintiffdid not provide any factual basis for her allegation that a cement block was in the garbage can onthe day of the accident, much less that it was placed there by GFC. Therefore, for the reasons setforth below, I must respectfully dissent.
The plaintiff, Minerva Vega, a maintenance worker employed by the New York City ParksDepartment at Loreto Park, in the Bronx, claims she injured her shoulder when she attempted tomove a garbage can allegedly containing a cement block. The plaintiff's duties includedsweeping, taking out garbage and moving garbage cans to the front of the park for pickup by theSanitation Department.
The defendant Restani Construction Corp. was the general contractor retained by the ParksDepartment to perform renovation work at the park in May 2002. GFC was the fencingsubcontractor, and defendant Excellent Asphalt Paving was the painting and sealingsubcontractor on the project.
The plaintiff worked inside the park until construction started. Before she was injured, shesaw workers in the park breaking up concrete to fix the benches in the handball court and by themain entrance fence. After construction was completed, the plaintiff resumed her duties [*3]inside the park on May 26, 2002. Two days later, on May 28, 2002,the plaintiff was working with two coworkers when she attempted to move a garbage can andfelt a tear in her left shoulder. One to two weeks later, the plaintiff went to the park with aninvestigator from her attorney's office. The investigator took photographs of a concrete block inone of the garbage cans at the entrance to the park.
The plaintiff commenced this action alleging that her injury was proximately caused by thedefendants' negligence in improperly disposing of construction debris. GFC denied theallegations, and cross-claimed against Restani and Excellent Asphalt. Subsequently, GFC movedfor summary judgment dismissing the complaint and all cross claims against it.
In support of the motion, GFC submitted, inter alia, the deposition testimony of the plaintiff,and of Restani's project manager, and an affidavit of GFC's principal, Dalton Johnson. GFCargued that according to the plaintiff's testimony, and upon presentation of photos of the cementblock in the garbage can, taken approximately two weeks after the accident, the plaintiff wasunable to provide any factual basis for the allegation against it.
In opposition to the motion, the plaintiff submitted, inter alia, the affidavits of her coworkersin which they swore, in direct contradiction of the plaintiff's testimony, that each had looked inthe garbage can on the day of the accident and had seen "pieces" or "chunks" of concrete. Bothspeculated in their affidavits that the concrete "had to have come" from the construction work.
The court denied GFC's motion for summary judgment. The court held that GFC had failedto address the affidavit of plaintiff's coworker, Jackie Diaz, who stated that until the date of theaccident, the defendants had exclusive possession and access to the park and area where thegarbage can was found. The court stated that this affidavit "perhaps" raised res ipsa issues thatcould only be answered at trial.
On appeal, GFC argues that the motion court's reliance on res ipsa loquitur was in error; thatthe plaintiff did not have a factual basis to meet her burden of proof; and that the plaintiff doesnot have a viable cause of action in negligence.
I agree. As a threshold matter, I believe precedent mandates the dismissal of the complaint asagainst GFC. The plaintiff alleges that she sustained her injury as a result of the weight of thegarbage can. In my opinion, this was an "ordinary and obvious" hazard of the plaintiff's duties,and thus, in accordance with case law, the cause of action is not viable because the hazard ofinjury was inherent in the plaintiff's employment. (See Anderson v Bush Indus., 280AD2d 949 [4th Dept 2001] [hazard of injury from repeatedly lifting heavy boxes and loadingthem onto truck inherent in the work of a United Parcel Service driver].) Specifically, it is wellestablished that workers involved in trash or garbage removal and/or cleanup have no cause ofaction for confronting an ordinary and obvious hazard of employment such as falling or slippingon debris or injury from lifting a heavy garbage bag. (See Jackson v Board of Educ. of City of N.Y., 30 AD3d 57 [1stDept 2006, Sullivan, J.] [complaint dismissed where the plaintiff slipped on lettuce leaf on floorhe was hired to sweep and clean]; Imtanios v Goldman Sachs, 44 AD3d 383 [1st Dept 2007], lvdismissed 9 NY3d 1028 [2008] [porter carrying trash to freight elevator had to walk througharea of discarded computer parts, so hazard of falling on such debris was inherent to job], citingMarin v San Martin Rest., 287 AD2d 441 [2d Dept 2001] [hazard of injury from lifting aheavy garbage bag and loading it into truck inherent in the work of a sanitation worker];Abbadessa v Ulrik Holding, 244 AD2d 517 [2d Dept 1997], lv denied 91 NY2d814 [1998] [complaint dismissed where plaintiff sanitation worker was injured while hoistingrefrigerator into truck].)
Indeed, in Abbadessa, the Second Department found no cause of action "[w]hen aworkman confronts the ordinary and obvious hazards of his employment." (244 AD2d at 518.)The court relied on Keating v Cookingham (223 AD2d 997 [3d Dept 1996]), which iscited by the majority as standing for the proposition that a cause of action exists for a sanitationworker's injury resulting from the overloading of a garbage can. That is a misreading of thedecision. The Court in Keating dismissed plaintiff's complaint on the grounds, inter alia,that in confronting an ordinary hazard of his employment, that is, an overloaded garbage can, hisinjury was solely a result of proceeding incautiously. (223 AD2d at 998.)
In my opinion, the instant case is entirely analogous with the foregoing line of cases. Theplaintiff's duty included moving garbage cans outside the park where they were then emptiedinto trucks by city sanitation workers. The garbage cans by definition, and according to theplaintiff's testimony, contained unspecified discarded items, each contributing to the overallweight of the can depending on what type of garbage was placed in the can.
This is not a case where the garbage at issue was broken glass, or toxic waste or usedsyringes, and where anyone placing such trash in a can accessible to the general public mightpossibly breach a duty given the foreseeability of harm arising out of such discarded objects. Thealleged injury-causing element of the concrete block, or the "pieces" or "chunks" of concretewhich the plaintiff's two coworkers swore they saw in the can right after the accident, was theweight of the concrete and not its inherent nature.
However, the hazard of being injured as a result of moving a heavy garbage can was the"ordinary and obvious" hazard the plaintiff faced in her employment which required her to movethe cans from one location to another. I believe the majority has completely misconstrued thevery use of the word "obvious" in its analysis. The majority has improperly adopted thenarrowest definition of the adjective "obvious" as simply meaning visible as if it ends theanalysis. Random House Webster's Unabridged Dictionary (2d ed 2001) defines obvious as "1.Easily seen, recognized or understood; 2. Open to view or knowledge; evident." Hence, theadjective "obvious" is not in reference to objects that can be seen. It is properly applied in theanalysis of concepts that are easily understood by the workers. When the adjective has been usedin the case law cited above, it has only qualified the term "hazards of . . .employment." (See Marin, 287 AD2d at 442, quoting Abbadessa, 244 AD2d at518.) In Marin and Abbadessa, workers confront the "ordinary and obvious"hazards of employment by understanding there is a risk of injury arising from the handling ofgarbage. "Obvious" in those cases is not used in the sense that an item in that garbage must bevisible to the worker in order for that worker to grasp the concept that there is a risk of injuryfrom lifting garbage bags, some of which may be heavier than others. While the distinction issubtle, it is nonetheless critical as the focus on the English definition of a particular word doesnot elucidate the legal concept contained herein.
The record is devoid of any suggestion that there were any notices posted in the parkrestricting the type of garbage that could be placed in the cans, either by item description or byweight. Moreover, the plaintiff's testimony indicates that the cans were big.
The plaintiff, who had been working for the Parks Department for several months in thisparticular position knew, or should have known, that big garbage cans in a public park can [*4]contain almost any type of trash from old appliances to old beddingor clothes; also, that garbage in an open can could easily increase the can's weight if, forexample, it rained and water soaked into the garbage as well as being deposited in the bottom ofthe can itself. Moreover, there was nothing preventing the plaintiff from glancing inside thegarbage can since according to her own testimony, it was open.
Moreover, for the foregoing reasons, the doctrine of res ipsa loquitur is entirely inapplicable.The submission of a case on a theory of res ipsa loquitur is warranted only when a plaintiff canestablish that (1) the event is of the kind which ordinarily does not occur in the absence ofsomeone's negligence; (2) the event must have been caused by an agency or instrumentalitywithin the exclusive control of defendant; and (3) the event must not have been due to anyvoluntary action or contribution on the part of the plaintiff. (See Ebanks v New York City Tr.Auth., 70 NY2d 621, 623 [1987]; Dermatossian v New York City Tr. Auth., 67NY2d 219, 226 [1986].)
Here, as GFC argues, even assuming it discarded pieces of concrete in the garbage can,disposing of such garbage in such a can is not a negligent action. Second, there is no evidencethat GFC had exclusive control of the park or the specific garbage can. The evidence shows thatwork was completed on May 20, 2002, eight days before the accident, and the concrete blockwas first seen by the plaintiff one to two weeks after the accident after the park becameaccessible again to the public.
In my opinion, GFC should be granted summary judgment. It is well settled that a partymoving for summary judgment must make a prima facie showing of entitlement to judgment as amatter of law, offering sufficient evidence to demonstrate the absence of any material issues offact. Once such a prima facie showing has been made, the burden shifts to the party opposing themotion to produce evidentiary proof in admissible form sufficient to raise material issues of factwhich require a trial of the action. (See Alvarez v Prospect Hosp., 68 NY2d 320, 324[1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Zuckerman v City of New York, 49 NY2d 557, 562 [1980].)
The plaintiff's deposition testimony was that she did not look in the can before attempting tomove it, that she did not look in the can after she hurt her shoulder, and that neither of hercoworkers looked in the can.
"Q: Once you realized that you were hurt did you look into the garbage pail at all?
"A: No. I just called [my coworker], and they sat me down, and I told them I had hurt myshoulder, and then she went and she started to move the garbage can and she said there has to besome debris in there, something heavy in the garbage can, but she didn't look inside."
The plaintiff further testified that the reason no one looked inside the can was because"[e]veryone was busy calling the ambulance" and that she obtained the photograph of the "reallybig block of cement" in a garbage can when she returned to the park a week or two later. Theplaintiff offered a photograph of the cement block in support of her claim, but at deposition shewas not sure that the garbage can from which the photographed cement block came was the sameone that she had attempted to move on the day of the accident. Her testimony further adducedthat she did not know if anyone had thrown anything into the garbage can during the one-to-two[*5]week period between the date of the accident and the date shereturned with the investigator.
Restani's project manager testified that the project was completed on May 20, 2002, eightdays before the accident; he testified that Restani "may have" broken up the old concrete footingand taken it away in a truck, but he did not remember and had no records which would reflectwhether this job was performed by Restani.
Dalton Johnson, a principal of GFC, by affidavit swore that the company was hired byRestani to take down a mesh fence, paint the posts, rails and poles, and to reinstall new mesh.Johnson did not remember removing any posts or working with concrete. Johnson had a truck onthe job to haul away fence materials. He swore that it was the custom and practice of GFC tophysically remove all debris it created, and any concrete debris would have been taken awayfrom the park by truck.
In my opinion, GFC met its burden of making a prima facie showing that it did not create thealleged condition. Moreover, the plaintiff failed subsequently to come forward with any proof, inadmissible form, of the existence of genuine issues of material fact. Specifically, the affidavits ofher coworkers, which she offered in opposition to the motion for summary judgment, were incontradiction to her testimony. Both coworkers testified that they looked in the garbage candirectly after the accident and saw "chunks" or "pieces" of concrete at the bottom of the can.Even if we accepted as true that the coworkers did look in the garbage can directly after thealleged injury occurred, their affidavits do not help the plaintiff. Neither coworker saw anyoneplace the pieces or chunks in the garbage can, and both, using the same phrase, speculated thatthe chunks or pieces of concrete "had to have come from" the construction workers. One of themsurmised that, "[t]hese pieces of cement had to have come from the construction workthat was going on inside the park." Meanwhile, the other surmised "[t]he concrete had tohave come from the people who were fixing that part of the park." However, speculation isinsufficient to raise a triable issue of fact in order to overcome a motion for summary judgment.(See Segretti v Shorenstein Co., E., 256 AD2d 234, 235 [1st Dept 1998] [complaintdismissed because while "surmising" that the oily substance causing his fall might havecome from garbage room located near the defendant, "plaintiff testified that he never saw anysubstance emanating from that source" (emphasis added)].)
Accordingly, I would reverse and dismiss the complaint as against GFC.