Watch What you put in YOUR Garbage
• 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.
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