Wagner v. Wody

• Citation: 951 N.Y.S.2d 59,2012 N.Y. Slip Op. 06136,98 A.D.3d 965
• Parties: Russell WAGNER, appellant, v. Janice WODY, et al., respondents.
• Decision Date: 12 September 2012
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 965
951 N.Y.S.2d 59
2012 N.Y. Slip Op. 06136

Russell WAGNER, appellant,
v.
Janice WODY, et al., respondents.

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

Sept. 12, 2012.

Sean H. Rooney, Brooklyn, N.Y. (Steven M. Pivovar of counsel), for appellant.

[951 N.Y.S.2d 60]

Andrea G. Sawyers, Melville, N.Y. (Christopher T. Vetro of counsel), for respondents.

PETER B. SKELOS, J.P., ARIEL E. BELEN, PLUMMER E. LOTT, and ROBERT J. MILLER, JJ.

[98 A.D.3d 965]In an action to recover damages for personal injuries, the plaintiff appeals from an order of the Supreme Court, Queens County (Brathwaite–Nelson, J.), entered March 31, 2011, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff, Russell Wagner, a sanitation worker, allegedly was injured while he was taking a garbage bag from a curb to a sanitation truck. According to his deposition testimony, Wagner lifted a 30–to–40–gallon 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. As the bag made contact with his leg, a thin piece or shard of glass in the bag that, according to Wagner, might have been less than a quarter of an inch thick and approximately three inches long, “punctured” his leg, injuring him. Wagner commenced this action to recover damages for personal injuries against Janice Wody and Jerry Wody (hereinafter together the defendants). The accident occurred in front of the defendants' home, and according to Wagner and a coworker, they found mail addressed to the defendants in the subject bag.

[98 A.D.3d 966]The defendants made a motion for summary judgment dismissing the complaint, which Wagner opposed. The Supreme Court granted the defendants' motion, stating, in pertinent part, that “the hazard of being injured by the contents of a garbage bag was inherent to plaintiff's duties as a sanitation worker.” Wagner appeals, and we affirm.

The Supreme Court properly found that the hazard of being injured by a small piece of glass included in household garbage was inherent in Wagner's work ( see Marin v. San Martin Rest., 287 A.D.2d 441, 731 N.Y.S.2d 70). Nothing in the recent decision of the Court of Appeals in Vega v. Restani Constr. Corp., 18 N.Y.3d 499, 942 N.Y.S.2d 13, 965 N.E.2d 240, suggests otherwise. In Vega, the Court found that the defendant contractor could not establish that the placement of heavy construction debris, including chunks of cement or concrete, into a public park trash barrel was not negligent as a matter of law. This case is clearly distinguishable. Certainly, 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 ( see Marin v. San Martin Rest., 287 A.D.2d 441, 731 N.Y.S.2d 70).

We do not agree with our dissenting colleague that the disposal by the defendants of the subject piece of glass presents a triable issue of fact as to their negligence. The law surely cannot be that homeowners can be made to answer to a jury because a sanitation worker is injured by a one-half inch by three-inch piece of glass contained in a 30–to–40–gallon waste bag that he was throwing into a garbage truck.

In any event, it was Wagner who chose to lift and “throw” this large plastic bag into the sanitation truck. A worker who “confronts the ordinary and obvious hazards of his [or her] employment, and has at his [or her] disposal the time ... to enable him [or her] to proceed safely ... may not hold others responsible if he [or she] elects to perform his [or her] job so incautiously as to injure himself [or herself]”

[951 N.Y.S.2d 61]

( Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 518, 664 N.Y.S.2d 620).

BELEN, LOTT and MILLER, JJ., concur.

SKELOS, J.P., dissents and vote to reverse the order and deny the defendants' motion for summary judgment dismissing the complaint.

The plaintiff sanitation worker was injured when a shard of broken glass concealed in a garbage bag discarded outside the defendants' home perforated the bag, cut through the plaintiff's pants, and pierced his leg. Because I cannot conclude that such a hazard is, as a matter of law, inherent in the plaintiff's work, or that, as a matter of law, the plaintiff performed his job “so [98 A.D.3d 967]incautiously as to injure himself” ( Abbadessa v. Ulrik Holding, 244 A.D.2d 517, 518, 664 N.Y.S.2d 620), I respectfully dissent.

On the day of the accident, the plaintiff, an employee of the New York City Department of Sanitation for 25 years, was collecting garbage from the front of residential properties. He was wearing his uniform, which consisted of, among other things, a pair of “heavy” work pants. The plaintiff picked up a black garbage bag that was left outside a house owned by the defendants. When he first picked up the bag, it was not in contact with any part of his body. However, when the plaintiff turned to go back to the truck, the side of the bag made contact with his leg. The plaintiff then felt something pierce his leg, and he fell to the ground on his knees. According to the plaintiff's deposition testimony, the object that pierced his leg was a flat, thin piece of clear glass, like glass from a window pane. When the plaintiff pulled the glass out of his leg, it was covered in blood, and his leg was bleeding “a lot.” Upon further inspection of the garbage bag, the plaintiff noticed that it contained five or six other pieces of glass. The plaintiff was taken to the hospital, and underwent exploratory surgery to search for additional pieces of glass in his leg. An accident report was completed with respect to the accident, on which the plaintiff's supervisor wrote “[d]o not let bag touch leg while lifting.” The plaintiff was not aware of any guideline or rule instructing the sanitation workers not to let the garbage bags come into contact with their legs, although he always tried to avoid such contact with the bags.

The plaintiff subsequently commenced the present action to recover damages for personal injuries, alleging that the defendants were negligent in placing a garbage bag which contained dangerous material on their property. The defendants moved for summary judgment dismissing the complaint. In support of their motion, the defendants argued that the risk of encountering broken glass was “ordinary and obvious” or an “inherent” hazard of the plaintiff's employment, from which the defendants had no duty to protect the plaintiff. The Supreme Court granted the...