In Consalvo v. City of New York et al, a hit-and-run driver struck and killed a sanitation worker who was removing a dead cat from a roadway. In this wrongful death action, the plaintiffs asserted that the defendants were negligent in failing to dispatch two sanitation workers at the time of this accident. The defendants moved for summary judgment arguing that they breached no duty owed to the decedent. The trial court denied the defendants’ motion.
In reversing the trial court and dismissing the plaintiffs’ case, the Appellate Division, Second Department held that “the duty of an employer to provide its employees with a safe place to work does not extend to hazards which are part of or inherent in the very work which the employee is to perform nor to secure the safety of an employee against the condition, or even defects, risks or dangers that may be readily observed by the reasonable use of the senses, having in view the age, intelligence and experience of the employee.” Here, with ten years on the job, this decedent’s work included picking up dead animals from the roadway and the risk of being struck by a car was readily observable. Moreover, plaintiffs failed to produce any evidence that the defendants were required to assign more than one worker to retrieve a dead cat.