Claim Negligence
Can Sue City Over SanWorker's Death

By RICHARD STEIER

The family of a Sanitation Worker killed by a hit-and-run driver seven years ago may proceed with a lawsuit charging that the city's negligence was a contributing factor, a Brooklyn Supreme Court Justice has ruled.

City attorneys had sought to have the suit dismissed, arguing that at the time of his death Frank Consalvo was carrying out a routine task in removing a dead cat from a street in Borough Park and it was not the city's obligation to protect him from reckless drivers. The man who fatally struck him left the scene of the accident and then tried to cover up his role by reporting his car stolen.

Contract Clause Key

Lawyers for the family of Mr. Consalvo, who was 47 when he died the following day and left behind a wife and two children, pointed to a clause in the Uniformed Sanitationmen's Association contract and accused the city of violating it.

On the night of Feb. 15, 2000, Mr. Consalvo was assigned to "relay" duty, taking collection trucks and dumping their garbage so that they would be available for use the following morning. This task was allowed to be performed by a single employee under the union contract.

Picking up the dead cat, however, fell under the heading of collection work, and as such required that a second Sanitation Worker be present.

Justice Jack M. Battaglia stated in his decision that prior court rulings had established that an employer's duty included furnishing enough workers "to perform those tasks necessary to make the work safe for other workers."

Couldn't Refuse Order

He cited the union contract requirement and the fact that "the city makes no showing that a single worker was sufficient to safely perform the task," adding that this failure was "fatal to its motion" to dismiss the suit. The judge also cited testimony by one of the city's witnesses that Mr. Consalvo could not have refused the order to collect the dead cat if he wanted to avoid disciplinary action.

Collection work, unlike relay transport, requires employees to be in the street, putting them at risk from moving vehicles. And so the judge rejected the city's claim that it had no duty to protect Mr. Consalvo from reckless motorists, stating, "An employer may be liable to its employee for even the criminal acts of third parties if the acts are sufficiently foreseeable."

He therefore dismissed the city's motion, allowing the case to go forward.