LEGGIO v. 126064 (2019)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Claimant commenced this action seeking damages for injuries she sustained when she tripped over a tree stump while performing work as an inmate at Albion Correctional Facility.  She appeals from an order that granted defendant's motion for summary judgment dismissing the claim and denied her cross motion for summary judgment on the issue of liability.  We affirm.

Although defendant, through its correctional authorities, may direct an inmate to participate in a work program during his or her term of incarceration, it nevertheless “owes the inmate a duty to provide a reasonably safe workplace” (Perez v. State of New York, 9 Misc.3d 1126[A], 2005 N.Y. Slip Op. 51802[U], 2005 WL 2990093, *2 [Ct. Cl. 2005];  see also Kandrach v. State of New York, 188 A.D.2d 910, 913, 591 N.Y.S.2d 868 [3d Dept. 1992] ).  Such a duty, however, “does not extend to hazards which are part of or inherent in the very work” being performed (Gasper v. Ford Motor Co., 13 N.Y.2d 104, 110, 242 N.Y.S.2d 205, 192 N.E.2d 163 [1963], mot to amend remittitur granted 13 N.Y.2d 893, 243 N.Y.S.2d 674, 193 N.E.2d 502 [1963];  see Anderson v. Bush Indus., 280 A.D.2d 949, 950, 720 N.Y.S.2d 699 [4th Dept. 2001];  see generally Labor Law § 200;  Maldonado v. State of New York, 255 A.D.2d 630, 631, 679 N.Y.S.2d 475 [3d Dept. 1998] ).  Further, while the issue whether a hazard is readily observable generally impacts only whether the parties are comparatively negligent, an open and obvious hazard is not actionable where it is inherent in the injury-producing work (see Parkhurst v. Syracuse Regional Airport Auth., 165 A.D.3d 1631, 1632, 86 N.Y.S.3d 362 [4th Dept. 2018];  Landahl v. City of Buffalo, 103 A.D.3d 1129, 1131, 959 N.Y.S.2d 306 [4th Dept. 2013] ).  Inasmuch as claimant and her fellow workers were tasked with cleaning up the branches of a felled tree, the existence of the tree stump was an open and obvious hazard inherent in the nature of the work and thus, contrary to claimant's contention, could not “serve as a basis for liability” (Parkhurst, 165 A.D.3d at 1632, 86 N.Y.S.3d 362).

Moreover, claimant admitted that she was aware of the stump before she started working (see Bombard v. Central Hudson Gas & Elec. Co., 205 A.D.2d 1018, 1020, 614 N.Y.S.2d 577 [3d Dept. 1994], lv dismissed 84 N.Y.2d 923, 621 N.Y.S.2d 521, 645 N.E.2d 1221 [1994] ).  Thus, we conclude that, contrary to claimant's further contentions, defendant did not have any duty to warn her of the existence of the stump or to instruct the inmates to exercise caution around it (see Cwiklinski v. Sears Roebuck & Co., Inc., 70 A.D.3d 1477, 1479, 894 N.Y.S.2d 277 [4th Dept. 2010];  Hurlburt v. S.W.B. Constr. Co., 20 A.D.3d 854, 855, 799 N.Y.S.2d 616 [3d Dept. 2005] ).  In light of the foregoing, we also conclude that defendant was not vicariously liable for a fellow inmate's purported failure to warn of the tree stump (see generally Mattes v. Joseph, 282 A.D.2d 507, 508, 723 N.Y.S.2d 218 [2d Dept. 2001] ).