ARTIFICIAL INTELLIGENCE IS NOT USED, IN WHOLE OR IN PART, IN THE SUMMARIES OF JUDICIAL AND QUASI-JUDICIAL DECISIONS PREPARED BY NYPPL

August 08, 2012

Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position


Employer’s duty to provide a safe place to work does not extend to hazards inherent in the duties of the position
Consalvo v City of New York, 53 AD3d 521

A New York City Sanitation Department employee was instructed to remove a dead cat from a public roadway. While removing the animal for the roadway the employee was struck by a hit-and-run driver, and thereafter died. Diane Consalvo sued the City, alleging wrongful death claming the City was negligent. The Supreme Court denied the City’s motion for summary judgment dismissing the action. On appeal, the Appellate Division, Second Department reversed the lower court’s ruling.

The Appellate Division said that “The duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the [employee] is to perform [nor] to secure the safety of [an employee] against a condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the [employee]”

In this instance, said the court, the City demonstrated it was entitled to judgment as a law by showing that the employee was an experienced sanitation worker, that it was part of his work to pick up dead animals from the roadway, and that the risks inherent therein, including the risk of being struck by a car, were readily observable.

Consalvo relied upon union rules, which the court said “were promulgated not as a safety measure, but to promote efficiency,” and upon the alleged "custom" of the Sanitation Department to dispatch two workers to collect garbage. However, said the Appellate Division, such evidence did not raise a “triable issue of fact” sufficient to defeat the City's entitlement to judgment as a law.

In another “safe workplace” case, Scharff v Sachem Cent. School Dist. at Holbrook, 53 AD3d 538, the court said that although Labor Law §240(1) affords special protection to workers who sustain personal injuries as a result of elevation-related risks such as falling from a height or being struck by a falling object that was improperly hoisted, the provision does not "encompass any and all perils that may be connected in some tangential way with the effects of gravity."

The injured worker testified that he slipped and fell onto the surface of a roof of a school while working. The school district, said the Appellate Division, met its burden of establishing its prima facie entitlement to judgment as a law by showing that the employee’s injury was not incurred as a result of an elevation-related risk. The Appellate Division also commented that “Supreme Court properly found that the [worker’s] affidavit, in which he alleged that he also slid down the roof, contradicted prior deposition testimony and was an attempt to create a feigned issue of fact.

The Consalvo decision is posted on the Internet at:

The Scharff decision is posted on the Internet at:
 

CAUTION

Subsequent court and administrative rulings, or changes to laws, rules and regulations may have modified or clarified or vacated or reversed the decisions summarized here. Accordingly, these summaries should be Shepardized® or otherwise checked to make certain that the most recent information is being considered by the reader.
THE MATERIAL ON THIS WEBSITE IS FOR INFORMATION ONLY. AGAIN, CHANGES IN LAWS, RULES, REGULATIONS AND NEW COURT AND ADMINISTRATIVE DECISIONS MAY AFFECT THE ACCURACY OF THE INFORMATION PROVIDED IN THIS LAWBLOG. THE MATERIAL PRESENTED IS NOT LEGAL ADVICE AND THE USE OF ANY MATERIAL POSTED ON THIS WEBSITE, OR CORRESPONDENCE CONCERNING SUCH MATERIAL, DOES NOT CREATE AN ATTORNEY-CLIENT RELATIONSHIP.
New York Public Personnel Law Blog Editor Harvey Randall served as Principal Attorney, New York State Department of Civil Service; Director of Personnel, SUNY Central Administration; Director of Research, Governor’s Office of Employee Relations; and Staff Judge Advocate General, New York Guard. Consistent with the Declaration of Principles jointly adopted by a Committee of the American Bar Association and a Committee of Publishers and Associations, the material posted to this blog is presented with the understanding that neither the publisher nor NYPPL and, or, its staff and contributors are providing legal advice to the reader and in the event legal or other expert assistance is needed, the reader is urged to seek such advice from a knowledgeable professional.
Copyright 2009-2024 - Public Employment Law Press. Email: nyppl@nycap.rr.com.