Hughes v. Murnane Bldg. Contractors Inc.

• Decision Date: 18 November 2011
• Citation: 89 A.D.3d 1507,2011 N.Y. Slip Op. 08398,932 N.Y.S.2d 782
• Parties: Paul HUGHES and Tammy Hughes, Plaintiffs–Respondents,v.MURNANE BUILDING CONTRACTORS, INC. and M.A. Bongiovanni, Inc., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

89 A.D.3d 1507

932 N.Y.S.2d 782

2011 N.Y. Slip Op. 08398

Paul HUGHES and Tammy Hughes, Plaintiffs–Respondents,

v.MURNANE BUILDING CONTRACTORS, INC. and M.A. Bongiovanni, Inc., Defendants–Appellants.

Supreme Court, Appellate Division, Fourth Department, New York.

Nov. 18, 2011.

Sugarman Law Firm, LLP, Syracuse (Jenna W. Klucsik of Counsel), for Defendant–Appellant Murnane Building Contractors, Inc.Costello, Cooney & Fearon, PLLC, Syracuse (Donald S. Dibenedetto of Counsel), for Defendant–Appellant M.A. Bongiovanni, Inc.The Rothschild Law Firm, P.C., East Syracuse (Martin J. Rothschild of Counsel), for Plaintiffs–Respondents.PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.MEMORANDUM:

Defendants appeal, as limited by their briefs, from an order insofar as it denied their motions for summary judgment seeking dismissal of the common-law negligence cause of action, which is based on the doctrine of “ danger invites rescue” (hereafter, rescue doctrine). Defendant Murnane Building Contractors, Inc. (Murnane) was the general contractor on a construction project that involved the installation of a large pipe in a trench. The trench was 1,200 feet long and 40 feet deep. Defendant M.A. Bongiovanni, Inc. (Bongiovanni) was the excavation subcontractor on the project, and it hired the company that employed Paul Hughes (plaintiff) to provide security at the construction site. Plaintiff, a security guard who worked the evening shift, was injured when he responded to a call on his cell phone from Wayne Sistrunk, an employee of Bongiovanni who had fallen from an extension ladder into the trench. According to plaintiff, who was the only other person at the site, Sistrunk begged him for help and told him to come right away. Plaintiff climbed down a stair tower to reach the trench floor and walked toward an excavator in the area where he thought Sistrunk was located. While walking on the trench floor, plaintiff allegedly sank deep into the mud. Plaintiff managed to pull himself out of the mud by grabbing onto the excavator, but he was allegedly injured in the process. After escaping the mud, plaintiff walked back up the stair tower and discontinued any efforts to assist Sistrunk. In the meantime, Sistrunk called 911, and emergency responders arrived at the construction site. The responders removed Sistrunk from the trench and treated plaintiff for chest pains.

According to plaintiffs, defendants' negligence caused Sistrunk to fall into the trench, which, in turn, caused plaintiff to attempt to rescue Sistrunk. Thus, plaintiffs allege that defendants are liable to them for their negligence toward Sistrunk. We conclude that Supreme Court properly denied those parts of defendants' motions seeking summary judgment dismissing the common-law negligence cause of action because defendants failed to meet their initial burden of establishing as a matter of law that the rescue doctrine is inapplicable.

Defendants contend that the rescue doctrine does not apply because plaintiff could not have reasonably believed that Sistrunk was in imminent peril when plaintiff descended into the trench to attempt to rescue him, and because plaintiff's rescue attempt was unreasonable. We reject those contentions. Although the rescue doctrine requires “more than a mere suspicion of danger” ( Provenzo v. Sam, 23 N.Y.2d 256, 261, 296 N.Y.S.2d 322, 244 N.E.2d 26; see Snyder v. Kramer, 94 A.D.2d 860, 463 N.Y.S.2d 591, affd. for the reasons stated 61 N.Y.2d 961, 475 N.Y.S.2d 279, 463 N.E.2d 620), the reasonableness of a plaintiff's perception of danger and the rescue effort itself is “generally a question for the trier of fact” ( Gifford v. Haller, 273 A.D.2d 751, 753, 710 N.Y.S.2d 187; see Wagner v. International Ry. Co., 232 N.Y. 176, 181–182, 133 N.E. 437; Rucker v. Andress [appeal No. 2], 38 A.D.2d 684, 327 N.Y.S.2d 91). “[T]he wisdom of hindsight is not determinative ... So long as the rescue attempted can be said to have been a reasonable course of conduct at the time, it is of no import that the danger was not as real as it appeared” ( Provenzo, 23 N.Y.2d at 260, 296 N.Y.S.2d 322, 244 N.E.2d 26; see O'Connor v. Syracuse Univ., 66 A.D.3d 1187, 1191, 887 N.Y.S.2d 353, lv. dismissed 14 N.Y.3d 766, 898 N.Y.S.2d 92, 925 N.E.2d 97).

Here, plaintiff received a phone call from Sistrunk, who said that he had fallen in the trench and that plaintiff needed to help him immediately. Plaintiff testified at his deposition that Sistrunk sounded like he was in pain and panicking and that he cried, “Help me, help me, help me.” Plaintiff further testified...