Derdiarian v. Felix Contracting Corp.

414 N.E.2d 666, 51 N.Y.2d 308, 434 N.Y.S.2d 166, 1980 N.Y. LEXIS 2729
CourtNew York Court of Appeals
DecidedNovember 20, 1980
StatusPublished
Cited by1,400 cases

This text of 414 N.E.2d 666 (Derdiarian v. Felix Contracting Corp.) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Derdiarian v. Felix Contracting Corp., 414 N.E.2d 666, 51 N.Y.2d 308, 434 N.Y.S.2d 166, 1980 N.Y. LEXIS 2729 (N.Y. 1980).

Opinion

OPINION OF THE COURT

Chief Judge Cooke.

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 vehicl'e. 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.

Supreme Court, Queens County, rendered an order, upon a jury verdict, in favor of plaintiffs on the issue of liability. The Appellate Division, with one dissent, affirmed, and granted defendant Felix Contracting Corporation leave to appeal to this court upon a certified question.

The order of the Appellate Division should be affirmed. As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions. 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.

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 defendant Con Edison.1 Bayside Pipe Coaters, plaintiff Harold Derdiarian’s employer, was engaged as a subcontractor to seal the gas main.

[313]*313On 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 IVi 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 [314]*314should 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.2 The court charged that Con Ed was the permittee "and by contract Felix assumed any obligations under this ordinance that Con Ed had.” Felix objected to "the Court charging that by contract Felix assumed any obligation under the ordinance that Consolidated Edison had.” 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.3

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 (see, e.g., Pagan v Goldberger, 51 AD2d 508, 509 [Hopkins, Acting P. J.]; Prosser, Law of Torts [4th ed], § 42, p 249; see, also, 1 Shearman & Redfield, Negligence, § 35). 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 (e.g., Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952; Palsgraf v Long Is. R. R. Co., 248 NY 339, 352 [Andrews, J., dissenting]). Depending upon the nature of the case, a variety of factors may be relevant in assessing legal [315]*315cause. 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 (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520, 521; Sheehan v City of New York, 40 NY2d 496, 502, 503; Kingsland v Erie County Agric. Soc., 298 NY 409, 424, 427). 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 (Nallan v Helmsley-Spear, Inc., supra, at p 520; Restatement, Torts 2d, § 431). Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable (Restatemeirij Torts 2d, § 435, subd 2).

h h-ere 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 Sbj( the defendant’s negligence (see Parvi v City of Kingston, 41 NY2d 553, 560; Restatement, Torts 449; Prosser, Law of Torts, § 44).

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Bluebook (online)
414 N.E.2d 666, 51 N.Y.2d 308, 434 N.Y.S.2d 166, 1980 N.Y. LEXIS 2729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/derdiarian-v-felix-contracting-corp-ny-1980.