Concrete in the Garbage Can
Q: I was a park maintenance worker. In the course of my employment, I attempted to move a garbage barrel. When I attempted to pull the trash can from its location in the park, in order to move it to the front entrance for pick up by the sanitation department, I was unable to do so and felt a tear in my shoulder. My co-worker says that when she looked in the garbage barrel that day, she saw chunks of concrete that could only have come from the construction workers who were fixing the park.
A: The subcontractor’s attorney is likely to argue that the hazard of a very heavy trash can filled with concrete was ordinary and obvious, and therefore you are not entitled to recovery. The idea is that – when a worker confronts the ordinary and obvious hazards of her employment, and has at her disposal the time and other resources to enable her to proceed safely – she may not hold others responsible if she elects to perform her job so incautiously as to injure herself. Nevertheless, the courts tend to hold that only a jury can decide whether a hazard is ordinary and obvious. It is my impression that it would have been unusual and abnormal for there to be concrete in the garbage can. Even if your co-worker says that the garbage barrel was very full of the concrete chunks, perhaps they were at the bottom, and the garbage barrels were very wide. Perhaps there was garbage on top of the concrete and you couldn’t see the chunks. The subcontractor’s attorney is likely to argue that the hazard, even if not vis- ible, was otherwise obvious because you could have hefted the can in order to test its weight before attempting to pull it. Still, it appears that only a jury can decide whether you should have known that the can was very heavy due to the presence of concrete, or that attempting to move it on your own would cause injury
By: Scott Baron,
Attorney at Law Advertorial
The law responds to changed conditions; exceptions and variations abound. Here, the information is general; always seek out competent counsel. This article shall not be construed as legal advice.
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