Personius v. Mann

Lahtinen, J.

(concurring in part and dissenting in part). We respectfully dissent from that portion of the majority decision which concludes there are no triable issues regarding common-law negligence. Plaintiff Hugh Personius (hereinafter plaintiff), an employee of a utility company, was summoned from his home to respond to the emergency at defendants’ premises where a building was on fire. Intent on cutting off electrical power to the burning building, plaintiff ascended a utility pole owned by defendants. The pole gave way at its base, causing plaintiff to fall and sustain severe fractures to both his wrists.

An owner of real property has a duty to keep that property in a reasonably safe condition (see Kush v City of Buffalo, 59 NY2d 26, 29 [1983]; Basso v Miller, 40 NY2d 233, 241 [1976]) and the fact that the owner did not invite the injured person onto the premises or was not aware of the entry onto the premises does not extinguish this duty (see Tagle v Jakob, 97 NY2d 165, 168 [2001]; Basso v Miller, supra at 239-241). With respect to a landowner who places a wooden pole in the ground creating a situation where, over time, decay and rotting is a known risk, it has long been the law that the landowner has a duty “to use reasonable care by way of inspection at appropriate intervals to determine whether the pole [is] reasonably safe” (Tuttle v Gold, 3 AD2d 760, 760 [1957]; see generally McGuire v Bell Tel. Co., 167 NY 208 [1901]; Vavallo v Consolidated Edison Co. of N.Y., 150 AD2d 556 [1989]; Holohan v Niagara Mohawk Power Corp., 42 AD2d 363 [1973]; Murphy v Rochester Tel. Co., 208 App Div 392 [1924], affd 240 NY 629 [1925]; Sizse v Wegmann, 169 App Div 112 [1915]). Where, as here, defendants have a duty to conduct reasonable inspections, the importance of actual or constructive notice diminishes (see Weller v Colleges of Senecas, 217 AD2d 280, 285 [1995] [“(I)f the defendant has a duty to conduct reasonable inspections, the issue of actual or constructive notice is irrelevant”]; Lesser v Camp Wildwood, 282 F Supp 2d 139, 149 [2003] [In a case involving a fallen tree, the court stated, in relevant part, that “(c)onstructive notice will be imputed . . . where the defendant has no program in place to inspect trees”]).

The subject utility pole was purchased and erected by defendant John G. Mann (hereinafter defendant) in the late 1950s or early 1960s. Defendants owned the pole and it was located on defendants’ property. Defendant acknowledged at his deposition *620that, after erecting the pole, he did not thereafter inspect the pole. When asked whether he mowed or kept debris away from the pole’s base, defendant responded that he did not. Hence, the record reveals that, when the accident occurred, the pole had been in the ground for approximately 40 years with no inspection and with grass and debris permitted to obscure the area where the pole entered the ground. These facts are, in our opinion, sufficient under the teaching of the pertinent precedent to preclude summary dismissal of the common-law negligence cause of action.

We are not persuaded by the majority’s determination that plaintiffs inspection of the pole prior to climbing it liberated defendants from any potential liability. In Murphy v Rochester Tel. Co. (supra), the Court noted that “the duty to inspect is one that cannot be delegated,” and it further held that, while “a lineman owes the duty to his own safety to make some inspection . . . [h]e cannot in the ordinary performance of his work make the thorough inspection which is the master’s [or owner’s] duty, nor is he required so to do” (id. at 396 [citation omitted]; see Rowley v American Illuminating Co. of Hornellsville, 83 App Div 609, 612-613 [1903]). Evidence in the record reflects that plaintiff was called at home to respond to an emergency. Upon arriving at defendants’ premises, he encountered a pole ostensibly with unattended grass growing at the base and he conducted an inspection—while a fire was in progress— before proceeding up the pole. Plaintiff’s cursory inspection conducted under exigent circumstances should not be construed to extinguish defendants’ duty.

Nor are we persuaded that defendants’ duty was fulfilled by the combination of the speculation that others occasionally on defendants’ property (i.e., the utility company’s meter readers and a contractor) might have conducted reasonable inspections of the pole (no proof was presented from such individuals) and the presumption that they would have then taken it upon themselves to contact defendants regarding any defects they observed. While we agree with the majority that defendants’ duty was “to make only a reasonable inspection,” the undisputed failure of defendants to conduct any inspection for nearly 40 years cannot be characterized as meeting that duty as a matter of law. We would therefore reverse so much of Supreme Court’s order as dismissed the common-law negligence cause of action.

Peters, J., concurs. Ordered that the order is affirmed, with costs.