Minerva Vega, Respondent v. Restani Construction Corp., Defendants, and General Fence Corporation, Appellant

Summary

The Court of Appeals affirmed denial of subcontractor General Fence Corporation's summary judgment motion, holding that park maintenance worker Minerva Vega is entitled to a trial on her claim that GFC's improper disposal of concrete construction debris in a Loreto Park trash can caused the shoulder injury she suffered while moving the barrel. GFC failed to make the prima facie showing required by Alvarez — offering no evidence that dumping construction debris in a public receptacle is non-negligent and no documentation negating its involvement — and record evidence (a coworker's cement-chunk affidavit, a work order listing 'remove reinforced concrete,' and testimony that only Restani and GFC broke concrete at the site) left triable disputes over who was responsible for the debris. Assuming arguendo that the inherent-hazard and open-and-obvious doctrines reach a third-party defendant that neither employs plaintiff nor owns the premises, the court further held GFC failed to show as a matter of law that the heavy-can risk was inherent in plaintiff's work or that the hidden concrete was an ordinary and obvious hazard. Judge Smith, dissenting in an opinion joined by Judges Read and Pigott, would have granted summary judgment because no rational factfinder could connect GFC to the concrete.