         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1098
CA 11-00627
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


PAUL HUGHES AND TAMMY HUGHES,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

MURNANE BUILDING CONTRACTORS, INC. AND
M.A. BONGIOVANNI, INC., DEFENDANTS-APPELLANTS.


SUGARMAN LAW FIRM, LLP, SYRACUSE (JENNA W. KLUCSIK OF COUNSEL), FOR
DEFENDANT-APPELLANT MURNANE BUILDING CONTRACTORS, INC.

COSTELLO, COONEY & FEARON, PLLC, SYRACUSE (DONALD S. DIBENEDETTO OF
COUNSEL), FOR DEFENDANT-APPELLANT M.A. BONGIOVANNI, INC.

THE ROTHSCHILD LAW FIRM, P.C., EAST SYRACUSE (MARTIN J. ROTHSCHILD OF
COUNSEL), FOR PLAINTIFFS-RESPONDENTS.


     Appeals from an order of the Supreme Court, Onondaga County
(Deborah H. Karalunas, J.), entered December 3, 2010 in a personal
injury action. The order, insofar as appealed from, denied in part
defendants’ motions for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Defendants appeal, as limited by their briefs, from
an order insofar as it denied their motions for summary judgment
seeking dismissal of the common-law negligence cause of action, which
is based on the doctrine of “danger invites rescue” (hereafter, rescue
doctrine). Defendant Murnane Building Contractors, Inc. (Murnane) was
the general contractor on a construction project that involved the
installation of a large pipe in a trench. The trench was 1,200 feet
long and 40 feet deep. Defendant M.A. Bongiovanni, Inc. (Bongiovanni)
was the excavation subcontractor on the project, and it hired the
company that employed Paul Hughes (plaintiff) to provide security at
the construction site. Plaintiff, a security guard who worked the
evening shift, was injured when he responded to a call on his cell
phone from Wayne Sistrunk, an employee of Bongiovanni who had fallen
from an extension ladder into the trench. According to plaintiff, who
was the only other person at the site, Sistrunk begged him for help
and told him to come right away. Plaintiff climbed down a stair tower
to reach the trench floor and walked toward an excavator in the area
where he thought Sistrunk was located. While walking on the trench
floor, plaintiff allegedly sank deep into the mud. Plaintiff managed
                                 -2-                          1098
                                                         CA 11-00627

to pull himself out of the mud by grabbing onto the excavator, but he
was allegedly injured in the process. After escaping the mud,
plaintiff walked back up the stair tower and discontinued any efforts
to assist Sistrunk. In the meantime, Sistrunk called 911, and
emergency responders arrived at the construction site. The responders
removed Sistrunk from the trench and treated plaintiff for chest
pains.

     According to plaintiffs, defendants’ negligence caused Sistrunk
to fall into the trench, which, in turn, caused plaintiff to attempt
to rescue Sistrunk. Thus, plaintiffs allege that defendants are
liable to them for their negligence toward Sistrunk. We conclude that
Supreme Court properly denied those parts of defendants’ motions
seeking summary judgment dismissing the common-law negligence cause of
action because defendants failed to meet their initial burden of
establishing as a matter of law that the rescue doctrine is
inapplicable.

     Defendants contend that the rescue doctrine does not apply
because plaintiff could not have reasonably believed that Sistrunk was
in imminent peril when plaintiff descended into the trench to attempt
to rescue him, and because plaintiff’s rescue attempt was
unreasonable. We reject those contentions. Although the rescue
doctrine requires “more than a mere suspicion of danger” (Provenzo v
Sam, 23 NY2d 256, 261; see Snyder v Kramer, 94 AD2d 860, affd for the
reasons stated 61 NY2d 961), the reasonableness of a plaintiff’s
perception of danger and the rescue effort itself is “generally a
question for the trier of fact” (Gifford v Haller, 273 AD2d 751, 753;
see Wagner v International Ry. Co., 232 NY 176, 181-182; Rucker v
Andress [appeal No. 2], 38 AD2d 684). “[T]he wisdom of hindsight is
not determinative . . . So long as the rescue attempted can be said to
have been a reasonable course of conduct at the time, it is of no
import that the danger was not as real as it appeared” (Provenzo, 23
NY2d at 260; see O’Connor v Syracuse Univ., 66 AD3d 1187, 1191, lv
dismissed 14 NY3d 766).

     Here, plaintiff received a phone call from Sistrunk, who said
that he had fallen in the trench and that plaintiff needed to help him
immediately. Plaintiff testified at his deposition that Sistrunk
sounded like he was in pain and panicking and that he cried, “Help me,
help me, help me.” Plaintiff further testified that he thought
Sistrunk could have been dying. It cannot be said on the record
before us that plaintiff’s belief in that regard was unreasonable as a
matter of law. Given the depth of the trench and the cold weather,
Sistrunk’s death or further serious injury as a result of the fall or
from exposure thereafter was more than an imaginative or speculative
possibility (see Provenzo, 23 NY2d at 261; see generally Rucker, 38
AD2d 684). Indeed, Sistrunk fell unconscious for a time and was
exhibiting hypothermic symptoms when he was rescued. We therefore
conclude that “the record . . . supports a logical inference that
plaintiff . . . was motivated by a reasonable belief of imminent
peril” (O’Connor, 66 AD3d at 1190; see also Villoch v Lindgren, 269
AD2d 271, 273). In addition, although plaintiff’s rescue attempts
appear to have been wholly ineffective, the rescue doctrine is not
                                 -3-                          1098
                                                         CA 11-00627

rendered inapplicable by “the futility of the plaintiff’s sacrifice”
(Wagner, 232 NY at 181). The evidence submitted by defendants in
support of their motions failed to establish that plaintiff’s rescue
efforts were unreasonable as a matter of law or that plaintiff’s
actions were “so rash under the circumstances as to constitute an
intervening and superseding cause” of his alleged injuries (Rodriguez
v Property for People, 291 AD2d 220, 221).

     Defendants further contend that the rescue doctrine is
inapplicable here because their liability to Sistrunk is predicated
solely on the theory of strict liability pursuant to Labor Law § 240
(1). Even assuming, arguendo, that the rescue doctrine is
inapplicable where the liability to the rescued person is predicated
upon an alleged violation of Labor Law § 240 (1) rather than
negligence (see Del Vecchio v State of New York, 246 AD2d 498, 499-
500; cf. McCoy v American Suzuki Motor Corp., 136 Wash 2d 350, 356,
961 P2d 952, 956), we conclude that plaintiffs have sufficiently
pleaded their case as one predicated upon defendants’ negligence, and
defendants failed to establish their lack of negligence as a matter of
law (see generally Niagara Frontier Transp. Auth. v City of Buffalo
Sewer Auth., 1 AD3d 893, 895).




Entered:   November 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
