Opinion
2005 NY Slip Op 08768
Decided November 17, 2005.
APPEAL from an order of the Appellate Division of the Supreme Court in the Third Judicial Department, entered July 7, 2005. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, Chemung County (Robert C. Mulvey, J.), which, among other things, had granted defendants' motion for summary judgment dismissing the complaint.
Plaintiff electric utility company employee was injured when he went onto defendant's farm for the purpose of cutting off electric power to a barn that was on fire, placed a ladder against the utility pole, climbed the ladder, and fell when the pole broke at ground level. Supreme Court dismissed plaintiffs' Labor Law and common-law negligence causes of action.
The Appellate Division majority concluded that, as to the common-law negligence cause of action, a landowner who erects a pole that later becomes dangerous will be held liable if it is shown that a reasonable inspection would have revealed the dangerous condition of the pole; that defendants carried their initial burden on their summary judgment motion by offering proof that the deteriorated condition of the pole could not have been detected upon visual inspection; that plaintiffs offered no evidence that an inspection would have disclosed the pole's defect; and that in the absence of any evidence of a warning of a hidden defect or that the pole defect was observable, defendants were under no duty to use extraordinary measures to uncover it. The dissent concluded that the subject pole had been in place for approximately 40 years with no inspection, and that since defendants were under a duty to make reasonable inspections, there were triable issues of fact requiring denial of summary judgment.
Personius v. Mann, 20 AD3d 616, modified.
Learned, Reilly Learned, LLP, Elmira ( Diana L. Hughes of counsel), for appellants.
Costello Cooney Fearon PLLC, Syracuse ( Samuel C. Young of counsel), for respondents.
Before: Chief Judge KAYE and Judges G.B. SMITH, CIPARICK, ROSENBLATT, GRAFFEO, READ and R.S. SMITH.
OPINION OF THE COURT
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order modified, with costs to plaintiffs, by denying defendants' motion for summary judgment as to the negligence cause of action and, as so modified, affirmed. A question of fact existed as to whether defendants fulfilled their duty to inspect and maintain the pole in question.