In the case of Doxey v. Ultimate Power, et al. (Nassau County Supreme Court Index No. 1432/2010), the defendant Freeport Union Free School District was performing some upgrades to several of its schools. One of those upgrades was the installation of a new boiler. Freeport hired defendant Triton Construction as the construction manager over the project and hired our client, Ultimate Power, as the prime HVAC contractor. Ultimate Power, in turn, hired the injured plaintiff's employer, Striper Mechanical, to install the new boiler. On the date of the accident, the plaintiff and his co-workers were bringing supplies into the basement area where the boiler was located through a sidewalk hatchway door, commonly referred to as a "Bilco" door. The bi-parting metal Bilco doors were opened from below via a pair of handles which held the doors open. The Bilco doors had originally been equipped with 4 "struts" or "spring assists". These struts consisted of a metal spring encapsulated within an upper and lower metal casing. When the door closed, the encased spring would compress which would prevent the metal door from slamming shut as it would allow the door to close in a controlled manner. When the doors were opened, the encased spring would decompress and take the weight of the steel door in order to assist a person attempting to open the door. The plaintiff observed one of these struts to be slightly protruding into the Bilco door opening. The strut was non-functional as it had become detached from the door at its upper casing but was still attached to the door frame at the bottom of its lower casing. He moved the strut into a standing position to be out of the way and, as he did so, the concealed metal spring within the strut suddenly and unexpectedly decompressed and sprung striking plaintiff on the side of his face.

Plaintiff brought suit against the defendants claiming negligence, res ipsa loquitor and violations of Labor Law §§200 and 241(6). The lower court granted summary judgment in favor of all defendants dismissing plaintiff's Complaint and finding that none of the defendants created the condition or had notice of the alleged latent defect in the spring. As for plaintiff's Labor Law §241(6) claim, the lower court held that none of plaintiff's cited Industrial Code sections were applicable. As for the res ipsa loquitor claim, the lower court dismissed same as there was no evidence that any one defendant had 'exclusive control' over the spring mechanism. The plaintiff appealed to the Second Department.

The Second Department unanimously upheld the grant of summary judgment on all counts. On the notice issue, plaintiff argued that the defendants had notice of the dangerous condition posed by the inoperable strut based upon the fact that the Bilco hatch doors were rusted which was acknowledged by Triton's project superintendent and Ultimate Power's field supervisor. The Second Department agreed with our argument that the presence of rust on the doors themselves does not impute notice of the danger posed by the hidden spring encased within a tube which was latent and would not have been discoverable upon reasonable inspection. The Court latched onto our cited case of Rapino v. City of NY, 299 AD2d 470 (2nd Dept. 2002) lv denied 100 NY2d 506 (2003) as a basis for its finding that defendants lacked constructive notice of the latent defect in the spring mechanism.