What does it to take to move a freestanding 80-pound garbage can? (Not much, apparently.)
After a pedestrian tipped over a metal garbage can onto Andre Jones's foot, Jones commenced a personal-injury action against the 34th Street Partnership, Inc. -- the can's custodian or owner -- alleging that the object should have been chained or anchored (in order to prevent injury).
In response to a motion for summary judgment made by 34th Street to dismiss the case, Jones produced the affidavit of a licensed professional engineer who indicated that a freestanding can was "unsafe" and that "good and accepted engineering safety practice requires that the trash receptacle be anchored to the sidewalk." Although a New York County Supreme Court Justice found that the expert raised a "triable factual question" and declined to dismiss Jones's case, the Appellate Division, First Department, reversed.
The appellate court was of the opinion since the expert's report lacked supporting data, it could not be given any weight nor serve as an adequate basis upon which to oppose 34th Street's motion to dismiss the case. As the court noted:
34th Street's moving papers made out a prima facie case for judgment in its favor. This shifted to plaintiff the burden of raising a triable issue as to whether the installation of the garbage can without an anchor created an unreasonably dangerous condition. The affidavit of Fein, plaintiff's purported expert, did not suffice to carry this burden. Without any data to establish the likelihood of an unanchored can being knocked over, Fein's assertions did not create a triable issue as to whether the unanchored can was unreasonably dangerous .... Further, Fein's claim that anchoring was required by "[g]ood and accepted engineering safety practice" did not create a triable issue with respect to the existence of an accepted industry practice or standard, given that no support was offered for this assertion, either in the form of a published industry or professional standard or in the form of evidence that such a practice had been generally accepted in the relevant industry ....
Ironically, 34th Street does not appear to have been presented any expert testimony of its own. In fact, the appellate decision cites primarily to the deposition testimony of an agent who reported that 34th Street had decided "after consideration, that it was not necessary to anchor the cans to the sidewalk, since they appeared to be heavy enough to make it unlikely that they would be knocked over by a person or by wind."
It is unclear why conclusory and unsubstantiated statements of "due consideration," and a non-expert opinion based on "appearance," were enough to trash Jones's case. A trial -- as to whether the condition presented a safety hazard -- was certainly warranted.
"Such a waste!"
For a copy of the Appellate Division's in Jones v. City of New York, please use the following link:
http://www.nycourts.gov/reporter/3dseries/2006/2006_06469.htm