The Legal Environment of Business

Derdiarian v. Felix Construction Corp.

Court of Appeals of New York
Nov. 20, 1980.

Subcontractor's employee and his wife brought personal injury action for damages arising out of accident in which husband was injured on roadway work site. The Court of Appeals held that:

(1) acts of an epileptic motorist, who failed to timely ingest medication and suffered a seizure causing his automobile to careen into an excavation site, striking the subcontractor's employee as well as a kettle of hot enamel, with the result that the employee suffered severe burns, did not constitute a superseding cause interrupting the link between the contractor's negligent failure to adequately safeguard the site and the injuries.

(2) The fact that the driver was negligent, or even reckless, did not insulate the contractor from liability nor did the fact that the driver lost control due to his negligent failure to take his medication, rather than due to a driving mistake.

(3) The plaintiff's placing the kettle of hot enamel on the oncoming traffic side of the excavation did not absolve contractor of some responsibility.

NEGLIGENCE Principles: Concept of proximate cause stems from policy considerations that serve to place manageable limits on liability that flows from negligent conduct.

NEGLIGENCE Principles: To carry burden of proving a prima facie case, plaintiff must generally show that defendant's negligence was a substantial cause of the events which produced the injury, although plaintiff need not demonstrate that the precise manner in which the accident happened, or extent of the injuries, was foreseeable.

NEGLIGENCE Principles: Where acts of a third person intervene between defendant's conduct and plaintiff's injury, the causal connection is not automatically severed and, in such case, liability turns on whether the intervening act is a normal or foreseeable consequence of the situation created by defendant's negligence.

NEGLIGENCE Principles: If an intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from defendant's conduct, it may well be a superseding cause which breaks the causal nexus between defendant's conduct and the injury.

NEGLIGENCE Principles: Fact that precise manner of an event was not anticipated does not mean that such is an intervening cause; an intervening act may not serve as a superseding cause, and relieve an actor of responsibility for his negligence, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.

NEGLIGENCE Principles: Action of subcontractor's employee in placing kettle of hot enamel on west side of excavation, which was located in eastbound traffic lane, did not absolve general contractor, which was found to have inadequately safeguarded the site, of liability for injuries which employee sustained when motorist crashed through inadequate barricade, striking the kettle and the employee, who was burned by the hot liquid, especially in view of evidence that general contractor effectively dictated location of the kettle.

NEGLIGENCE Principles: That defendant could not anticipate the precise manner of the accident or the exact nature of the injuries does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable.

OPINION OF THE COURT

COOKE, Chief Judge. The operator of a motor vehicle, who failed timely to ingest a dosage of medication, suffered an epileptic seizure and his vehicle careened into an excavation site where a gas main was being installed beneath the street surface. The automobile crashed through a single wooden horse-type barricade put in place by the contractor and struck an employee of a subcontractor, who was propelled into the air. Upon landing the employee was splattered by boiling liquid enamel from a kettle also struck by the vehicle. Principally at issue on this appeal is whether plaintiffs, the employee and his wife, failed to establish as a matter of law that the contractor's inadequate safety precautions on the work site were the proximate cause of the accident.

[1] As a general rule, the question of proximate cause is to be decided by the finder of fact, the trial court jury, aided by appropriate instructions from the trial judge. There is no basis on this record for concluding, as a matter of law, that a superseding cause or other factor intervened to break the nexus between defendant's negligence and plaintiff's injury.

[2] During the fall of 1973 defendant Felix Contracting Corporation was performing a contract to install an underground gas main in the City of Mount Vernon for Consolidated Edison. Bayside Pipe Coaters, plaintiff Harold Derdiarian's employer, was engaged as a subcontractor to seal the gas main.

On the afternoon of November 21, 1973, defendant James Dickens suffered an epileptic seizure and lost consciousness, allowing his vehicle to careen into the work site and strike plaintiff with such force as to throw him into the air. When plaintiff landed, he was splattered over his face, head and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile. The enamel was used in connection with sealing the gas main. Although plaintiff's body ignited into a fire ball, he miraculously survived the incident.

At trial, plaintiff's theory was that defendant Felix had negligently failed to take adequate measures to insure the safety of workers on the excavation site. Plaintiff's evidence indicates that the accident occurred on Oak Street, a two-lane, east-west roadway. The excavation was located in the eastbound lane, and ran from approximately one foot south of the center line to within 2 or 3 feet of the curb. When plaintiff arrived on the site, he was instructed by Felix' foreman to park his truck on the west side of the excavation, parallel to the curb. As a result, there was a gap of some 7 1/2 feet between the side of the truck and the curb line. Derdiarian testified that he made a request to park his truck on the east side of the hole, so he could set up the kettle away from the oncoming eastbound traffic. The Felix foreman instructed him to leave his truck where it was, and plaintiff then put the kettle near the curb, on the west side of the excavation.

James Dickens was driving eastbound on Oak Street when he suffered a seizure and lost consciousness. Dickens was under treatment for epilepsy and had neglected to take his medication at the proper time. His car crashed through a single wooden horse-type barricade that was set up on the west side of the excavation site. As it passed through the site, the vehicle struck the kettle containing the enamel, as well as the plaintiff, resulting in plaintiff's injuries.

To support his claim of an unsafe work site, plaintiff called as a witness Lawrence Lawton, an expert in traffic safety. According to Lawton, the usual and accepted method of safeguarding the workers is to erect a barrier around the excavation. Such a barrier, consisting of a truck, a piece of heavy equipment or a pile of dirt, would keep a car out of the excavation and protect workers from oncoming traffic. The expert testified that the barrier should cover the entire width of the excavation. He also stated that there should have been two flagmen present, rather than one, and that warning signs should have been posted advising motorists that there was only one lane of traffic and that there was a flagman ahead.

Following receipt of the evidence, the trial court charged the jury, among other things, that it could consider, as some evidence of negligence, the violation of a Mount Vernon ordinance. The ordinance imposed upon a construction "permittee" certain safety duties.

The jury found for plaintiff, apportioning liability at 55% for Felix, 35% for Dickens and 10% for Con Ed. Defendant Felix now argues that plaintiff was injured in a freakish accident, brought about solely by defendant Dickens' negligence, and therefore there was no causal link, as a matter of law, between Felix' breach of duty and plaintiff's injuries.

Discussion

The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations. This is, in part, because the concept stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct. Depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause. Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established.

To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant's negligence was a substantial cause of the events which produced the injury. Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable

Where the acts of a third person intervene between the defendant's conduct and the plaintiff's injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by the defendant's negligence. If the intervening act is extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct, it may well be a superseding act which breaks the causal nexus. Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the jury to decide.

In the present case, we cannot say as a matter of law that defendant Dickens' negligence was a superseding cause which interrupted the link between Felix' negligence and plaintiff's injuries. From the evidence in the record, the jury could have found that Felix negligently failed to safeguard the excavation site. A prime hazard associated with such dereliction is the possibility that a driver will negligently enter the work site and cause injury to a worker. That the driver was negligent, or even reckless, does not insulate Felix from liability. Nor is it decisive that the driver lost control of the vehicle through a negligent failure to take medication, rather than a driving mistake. The precise manner of the event need not be anticipated. The finder of fact could have concluded that the foreseeable, normal and natural result of the risk created by Felix was the injury of a worker by a car entering the improperly protected work area. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.

In a similar vein, plaintiff's act of placing the kettle on the west side of the excavation does not, as a matter of law, absolve defendant Felix of responsibility. Serious injury, or even death, was a foreseeable consequence of a vehicle crashing through the work area. The injury could have occurred in numerous ways, ranging from a worker being directly struck by the car to the car hitting an object that injures the worker. Placement of the kettle, or any object in the work area, could affect how the accident occurs and the extent of injuries. That defendant could not anticipate the precise manner of the accident or the exact extent of injuries, however, does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable.

For the foregoing reasons, the order of the Appellate Division should be affirmed, with costs. The certified question is answered in the affirmative.

JASEN, GABRIELLI, JONES, WACHTLER and MEYER, JJ., concur.