On-the-Job Injury Dismissed; Hazard Inherent

Saturday, December 16, 2006 | 0

By Larry Rogak

Djinovic v. Equitable Life Assurance Society et al., NYLJ 12/13/06 (Supreme Court, Richmond Co.) (McMahon, j)

When an employee's job necessarily entails certain obvious and expected risks that are inherent in the nature of the job, he obviously can't sue his employer when he is injured on the job (that being barred by the workers compensation law) but can he sue a third party? The answer is no.

Plaintiff in this case alleged that he was injured while lifting computer equipment into a dumpster at his place of employment. At the time of the accident, plaintiff was a cleaner/maintenance person employed by third-party defendant ABM, the building's maintenance company. Plaintiff's job responsibilities included removing garbage from the building and throwing it into dumpsters. Defendant Equitable owned the building. Defendant ABN Amro was the tenant whose old computers were being dumped.

Plaintiff sued the building owner and tenant, and the owner impleaded plaintiff's employer. All defendants moved for summary judgment.

The court held that "The hazard of being injured as a result of lifting heavy garbage and loading it into a dumpster is inherent in the work of a building maintenance worker" (citing Marin v. San Martin Restaurant Inc., 287 AD2d 441 [2d Dept 2001]).

"When a workman confronts the ordinary and obvious hazards of his employment, and has at his disposal the time and other resources to enable him to proceed safely, he may not hold others responsible if he elects to perform his job so incautiously as to injure himself" (citing Steiner v. Benroal Realty Ass. LP, 290 AD2d 551 [2d Dept 2002]; Ercole v. Academy Fence Company Inc., 256 AD2d 305 [2d Dept 1998]; Abbadessa v. Ulrik Holding Ltd., 244 AD2d 517 [2d Dept 1997]).

The court rejected plaintiff's argument that the lease between the tenant and the owner provided that the tenant could be charged additional fees for removing "extra refuse."

"Assuming that computer equipment falls into this 'extra refuse' category and the tenant could be charged an additional fee, it does not change the fact that it was the plaintiff's job to discard the building refuse. If the plaintiff believed that he was not required to remove the computer equipment, he was free to confirm this with his supervisor prior to discarding the equipment. Moreover, if the plaintiff thought that the computer equipment was too heavy for him to remove by himself, he could have sought assistance from a co-worker."

The complaint was dismissed.

Lawrence N. Rogak is an insurance defense attorney in New York. He writes The Rogak Report, a daily insurance law newsletter, and his insurance law articles appear in several industry publications. For more information see href=http://www.Rogak.com target="new"> www.Rogak.com.

----------------------------------------

The views and opinions expressed by the author are not necessarily those of workcompcentral.com, its editors or management.