December 15, 2010

Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result

Ordering worker to report to agency’s medical clinic for an examination does result in liability if the employee’s injury is exacerbating as a result
Bonomonte v City of New York, 2010 NY Slip Op 09165, Decided on December 14, 2010, Appellate Division, First Department

Dominic Bonomonte, a New York City Sanitation employee was on sick leave due to surgeries to his arm. He slipped and fell outside his home on his way to a mandated doctor's appointment at the Sanitation Department's clinic, exacerbating of his injuries.

Bonomonte sued, contending that his fall was a foreseeable consequence of the Department’s negligence in ordering him to the clinic at a time when it should have been aware that he had been directed by his physician not to travel.

Supreme Court dismissed his petition and the Appellate Division affirmed the lower court’s determination.

The Appellate Division said that “Dismissal of the complaint was warranted, since there was no duty flowing from [the Department] to [Bonomonte],” citing Matter of New York City Asbestos Litig., 5 NY3d 486.

The court explained that “Contrary to Bonomonte’s] contention, a duty was not created by the fact that [Department’s] clinical supervisor had ordered [Bonomonte] to travel to the clinic or face possible termination or suspension of employment and medical benefits.”

Further, said the court, the evidence fails to establish “proximate cause,” as the directive that Bonomonte report to the clinic merely furnished the occasion for the accident.

The decision is posted on the Internet at:
http://www.courts.state.ny.us/reporter/3dseries/2010/2010_09165.htm

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