You are here: / / TWO YOUNG MEN DID NOT REALIZE THE CONCRETE THEY WERE MOVING WAS A CESSPOOL...
,

TWO YOUNG MEN DID NOT REALIZE THE CONCRETE THEY WERE MOVING WAS A CESSPOOL COVER; ONE FELL IN AND THE OTHER JUMPED IN TO RESCUE HIM; BOTH DIED FROM CHEMICAL ASPHYXIATION; QUESTIONS OF FACT WHETHER THE COVER WAS A DANGEROUS CONDITION, WHETHER THE CESSPOOL CONTRACTOR LAUNCHED AN INSTRUMENT OF HARM AND WHETHER THE RESCUE ATTEMPT WAS FORESEEABLE (SECOND DEPT).

The Second Department, reversing Supreme Court, determined there were questions of fact whether the property owner (Cruzate) was negligent and whether the cesspool contractor (Port Jefferson) launched an instrument of harm. Two young men were planning to build a campfire in the backyard of a rental property owned by Cruzate. The men did not realize the pieces of concrete they decided to move were cesspool covers. One of the men (Fuentes) fell in, the other (Castro) jumped in to rescue him. Both were asphyxiated by chemicals that had been added when the cesspool was serviced:

… [T]he plaintiff raised a triable issue of fact as to whether the cesspool cover was in a defective condition because Port Jefferson Cesspool had improperly replaced it after servicing the cesspool, enabling Suarez to get his fingers underneath the cover and lift it … . The plaintiff submitted the affidavit of his expert, who opined that, on the date of the accident, the cover was not secure to the ground. According to the expert, there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, which was a substantial factor in the deaths of Castro and Fuentes. Moreover, Cruzate testified that he hired Port Jefferson Cesspool to service the cesspool, supervised the work, observed Port Jefferson Cesspool lift the cesspool cover, and was present when the work was completed. Therefore, there are triable issues of fact as to whether Cruzate had actual or constructive notice of the allegedly defective condition of the cesspool cover … . …

… [T]he plaintiff raised a triable issue of fact as to whether Port Jefferson Cesspool launched a force of harm and created a dangerous condition by improperly replacing the cement cover after servicing the cesspool (see generally Espinal v Melville Snow Contrs., 98 NY2d 136). The plaintiff’s expert opined, as discussed above, that there was soil between the cover and the cesspool, so that the cover did not rest firmly on the cesspool, and that this was a substantial factor in the deaths of Castro and Fuentes. …

… [T]he fact that Castro decided to jump into the cesspool in an attempt to save his friend does not necessarily act as a bar to recovery. In 1921, the Court of Appeals, in an opinion by Judge Benjamin Cardozo, established that, with regard to the principle of foreseeability, “[d]anger invites rescue. . . . The wrong that imperils life is a wrong to the imperiled victim; it is also a wrong to his rescuer” (Wagner v International Ry. Co., 232 NY at 180 … ) this principle applies where “the actions of the injured person were reasonable in view of the emergency situation,” that is, where the rescuer “acted as a reasonably prudent person would act in the same situation, even if it later appears that the rescuer did not make the safest choice or exercise the best judgment” … . Calderon v Cruzate, 2019 NY Slip Op 06377, Second Detp 8-28-19

 

You might also like
BANK DID NOT DEMONSTRATE COMPLIANCE WITH REAL PROPERTY ACTIONS AND PROCEEDINGS LAW, SUMMARY JUDGMENT SHOULD NOT HAVE BEEN GRANTED IN THIS FORECLOSURE PROCEEDING (SECOND DEPT).
Defendant Entitled to Hearing Re: Whether His Counsel Was Ineffective For Failing to Communicate an Earlier, More Lenient Plea Offer
FAILURE TO WARN WAS NOT A SUBSTANTIAL CAUSE OF THE INJURIES AND DEATHS IN THIS PRODUCTS LIABILITY ACTION, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT SHOULD HAVE BEEN GRANTED (SECOND DEPT).
Need for Appointment of a Guardian of Property Not Demonstrated, Criteria Explained
Complaint Did Not State a Cause of Action Against City for Negligent Failure to Provide Emergency Medical Services—No “Special Relationship” Alleged
THE STOP OF DEFENDANT’S CAR WAS NOT SUPPORTED BY REASONABLE SUSPICION; THE REPORT THAT A SUSPICIOUS CAR WAS FOLLOWING SOMEONE DID NOT DESCRIBE THE CAR AND DEFENDANT WAS NOT FOLLOWING ANYONE WHEN STOPPED; THE PROOF AT THE SUPPRESSION HEARING DID NOT DEMONSTRATE DEFENDANT WAS TRESPASSING BY DRIVING ON THE PRIVATE ROAD, WHICH WAS THE JUSTIFICATION FOR THE STOP RELIED UPON BY SUPREME COURT (SECOND DEPT).
Title Insurance Company Insures Only Whether a Property Has Legal Access to a Street, Not Whether Physical Access to the Street Is Possible
CRIMINAL LAW/SEX OFFENDER REGISTRATION ACT (SORA) Criteria for Downward Departure Explained (Not Met Here)

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

Copyright © 2023 New York Appellate Digest, LLC
Site by CurlyHost | Privacy Policy

A JUDGE HAS THE DISCRETION TO EXPUNGE A YOUTHFUL OFFENDER’S DNA RECORDS,... INJURY FROM A CHAIN-LINK FENCE AT A CONSTRUCTION SITE WHICH BLEW OVER ONTO PLAINTIFFS...