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Piece of Glass in
Household Garbage Constitutes Hazard Inherent in Duty of Sanitation Worker
Last year, the Survey reported that the defendant in Vega v. Restani Construction Corp. failed
to come forward with evidence showing, as a matter of law, that the alleged act
of disposing of construction debris in a public trash would not constitute
negligence. Recall in that case, the plaintiff was injured when she attempted
to pull a trashcan to the front entrance of Loreto Park for pickup by New York
City Department of Sanitation. A co-worker testified she saw chunks of concrete
in the trashcan that “could only have come from the other workers who were
repairing/fixing the park.” On the issue posed by defendants that concrete and
construction debris presented an “open and ordinary” hazard inherent in
plaintiff’s job as a sanitation worker, Chief Judge Lipman rejected defendant’s
argument as a matter of law because the record did not establish that plaintiff
“should have known that the [garbage] can was very heavy due to the presence of
concrete,” and sent the case back to the lower court for resolution of this
issue of fact.
In Wagner v. Wody, the Second Department
discussed and distinguished the Vega case
in a four-to-one decision which also dealt with the issue of the inherent risks
in sanitation work. The plaintiff was injured while he was taking a garbage bag
from the curb to a sanitation truck. The plaintiff testified at his deposition
that he lifted a 30-to-40 pound black plastic garbage bag with his left hand
and, “as he turned to throw it into the truck, the bag made contact with his
leg” and a thin piece or shard of glass “punctured” his leg and caused injury.
Plaintiff commenced this action against the defendant-homeowners after
plaintiff found mail addressed to them in the subject garbage bag.
The Supreme Court
granted defendants’ motion for summary judgment on the grounds that “the hazard
of being injured by the contents of a garbage bag was inherent to plaintiffs
duties as a sanitation worker.” The
Second Department affirmed the lower court, with the majority distinguishing
the Court of Appeals’ decision in Vega by
recognizing that “a small piece of glass constitutes ordinary garbage or a
common item of trash, the disposal of which is a hazard inherent in the duty of
a sanitation worker.” The majority also acknowledged the way in which plaintiff
chose to perform his work by lifting and “throw[ing]” the large plastic bag
into the sanitation truck. In particular, the Court held that “a worker who
confronts the ordinary and obvious hazards of his employment, and has at his
disposal the time to enable him to proceed safely may not hold others
responsible if he elects to perform his job so incautiously as to injure
himself.”
In his lengthy
dissenting opinion, Judge Skelos reasoned that this case was less like Marin and more akin to Vega. Relying on the Court of Appeals’
decision in Vega which declined to
find as a matter of law whether the offending material belonged in the garbage
can, or whether it constituted ordinary or common items to trash, the dissent
reasoned that in this case it was more properly a question of reasonableness
for the jury to determine whether the shard of glass posed an inherent risk in
plaintiff’s work. Most compelling to this argument is the fact that the mere
shard of glass characterized as “small” by the majority was, apparently, “large
enough and sharp enough to cut through the plaintiff’s heavy work pants, to lodge
itself into the plaintiff’s leg, and to require exploratory surgery.”
Therefore, as in Vega, plaintiff
should have been entitled to present his claim to the trier of fact.
