In Loschiavo v. City of New York, 923 N.Y.S.2d 676 (2d Dept. 2011), the plaintiff, an employee of the New York City Department of Sanitation, was allegedly injured when a metal bar he was recycling ejected from one of the truck’s hoppers, struck him in the head, and knocked him into the path of an oncoming bus. The plaintiff thereafter sued the City alleging that it was negligent in failing to provide a safe recycling truck despite a notice that this model of truck sometimes ejected material from the hoppers during recycling operations.
Ultimately the Court held for the City because it felt that the City’s decision to use that particular truck was a discretionary governmental act involving the exercise of reasoned judgment. According to the Court: “the City submitted evidence showing that the Department [of Sanitation] made the decision to use this particular dual hopper truck after considering hoppers from several manufacturer’s, conducting field tests, and determining that the hopper was reasonably safe. In examining available hoppers, the Department found that no hopper design completely eliminated the risk that material would sometimes eject during recycling collection operations, except for one design that posed alternate, greater safety risks.” Because the plaintiff didn’t provide evidence in opposition to the City’s evidence, the Court dismissed the plaintiff’s complaint.
Salvatore R. Marino, Esq.