Summary
In Harris v. Cool (85 A.D.2d 921 [4th Dept 1981]), where plaintiff, employed by defendants at their residence as a house painter, "sustained injuries * * * while fleeing a swarm of bees disturbed by defendant's spraying" in an enclosed basement area where he had been directed to store his paints, the court held that viable causes of action in negligence and Labor Law existed.
Summary of this case from Febesh v. Elcejay Inn Corp.Opinion
December 23, 1981
Appeal from the Cayuga Supreme Court, Contiguglia, J.
Present — Simons, J.P., Callahan, Doerr, Denman and Moule, JJ.
Judgment unanimously reversed, on the law and facts, with costs, and a new trial granted. Memorandum: Plaintiff was employed by defendants at their residence as a house painter. He was directed to store his paint in a basement area reached via a low outside entrance. Plaintiff sustained injuries when he struck his head on the low overhead doorway while fleeing a swarm of bees disturbed by defendant's spraying. He commenced an action against defendant homeowners for negligence and failure to provide a safe place to work as required by section 200 of the New York Labor Law. At the close of plaintiff's proof, the trial court granted defendants' motion, pursuant to CPLR 4401, to dismiss plaintiff's complaint. It is well settled that in deciding a motion to dismiss under CPLR 4401 the trial court must take the view of the evidence most favorable to the nonmoving party ( Bradshaw v Paduano, 55 A.D.2d 828, 829; Bartkowiak v St. Adalbert's R.C. Church Soc., 40 A.D.2d 306, 309) and should not grant the motion where the facts are in dispute or where different inferences might be drawn from the undisputed facts ( Cox v Don's Welding Serv., 58 A.D.2d 1013; Bartkowiak v St. Adalbert's R.C. Church Soc., supra). The test is whether the trial court could find "that by no rational process could the trier of the facts base a finding in favor of the [nonmoving party] upon the evidence here presented" ( Blum v Fresh Grown Preserve Corp., 292 N.Y. 241, 245; see, also, Cohen v Hallmark Cards, 45 N.Y.2d 493). Applying these principles, it was error for the trial court to grant defendants' motion to dismiss at the close of plaintiff's case. Plaintiff was employed by the defendants as a house painter and was directed to store his paints in the basement. As such, he was a business invitee (see Prosser, Torts [4th ed], § 61, pp 385-386; 46 N.Y. Jur, Premises Liability, §§ 48-58; see, generally, Basso v Miller, 40 N.Y.2d 233). Upon the proof presented at the trial, the question of whether defendants failed to provide a safe place to work as required by section 200 Lab. of the Labor Law (see Rosenbaum v Lefrak Corp., 80 A.D.2d 337) or were otherwise negligent in spraying bees while plaintiff was present in the basement (especially in view of the low overhead cellar door) was an issue for the jury to determine. It is only when the court concludes that there is no reasonable view of the evidence upon which to assess liability that the issue should be decided as one of law ( Eddy v Syracuse Univ., 78 A.D.2d 989, 990). On our review of the record, we find triable issues of fact which should have been left to the jury for resolution.