713 F.2d 1 (2nd Cir. 1983), 658, Cappellini v. McCabe Powers Body Co.

Docket Nº:658, 659, Dockets 82-7363, 82-7523.
Citation:713 F.2d 1
Party Name:Thomas E. CAPPELLINI and Frances Cappellini, Plaintiffs-Appellees, v. McCABE POWERS BODY COMPANY, Defendant-Appellant. McCABE POWERS BODY COMPANY, Third-Party-Plaintiff-Appellee, v. CONSOLIDATED EDISON COMPANY OF NEW YORK, INC., Third-Party-Defendant-Appellant.
Case Date:July 11, 1983
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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713 F.2d 1 (2nd Cir. 1983)

Thomas E. CAPPELLINI and Frances Cappellini, Plaintiffs-Appellees,


McCABE POWERS BODY COMPANY, Defendant-Appellant.

McCABE POWERS BODY COMPANY, Third-Party-Plaintiff-Appellee,




Nos. 658, 659, Dockets 82-7363, 82-7523.

United States Court of Appeals, Second Circuit

July 11, 1983

Argued Jan. 6, 1983.

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Robert Horkitz, New York City (Rein, Mound & Cotton, New York City, on the brief), for defendant-appellant McCabe Powers Body Co.

Michael Majewski, New York City (Ernest Williams, Joseph Ahearn, New York City, on the brief), for third-party-defendant-appellant Consolidated Edison Co. of N.Y., Inc.

Harvey Goldstein, New York City (Robert J. DeBoissiere, Staten Island, N.Y., Fuchsberg & Fuchsberg, New York City, on the brief), for plaintiff-appellee.

Before KAUFMAN, TIMBERS and NEWMAN, Circuit Judges.

NEWMAN, Circuit Judge:

Defendant McCabe Powers Body Company (McCabe) and third-party defendant Consolidated Edison Company of New York, Inc. (Con-Ed) appeal from a judgment of the District Court for the Eastern District of New York (Eugene H. Nickerson, Judge) entered upon special verdicts, Fed.R.Civ.P. 49(a), holding appellants liable, and apportioning responsibility among them, for injuries suffered by plaintiff Thomas Cappellini in the course of his employment as a lineman for Con-Ed while operating equipment manufactured by McCabe. We conclude that the evidence was insufficient to support one of the two special verdicts imposing liability upon Con-Ed and that the elimination of this ground for Con-Ed's liability requires redetermination of the defendants' comparative responsibility for Cappellini's injuries.

I. The Evidence and the Verdicts

Cappellini was injured on May 1, 1973, while working with several other Con-Ed linemen on a project in Staten Island, New York. The project involved removal of old electric poles and the wires they supported. To gain access to the wires, the linemen used hydraulically powered "buckets" manufactured by McCabe.

Before beginning work, Cappellini prepared his bucket for use. First, he started the truck that carried and supplied power to the hydraulic machinery from which the bucket, in turn, drew its power. He then reached inside the truck's cabin and pulled out a button located on the dashboard. By pulling out the dashboard button, plaintiff activated a "kill switch" situated inside the bucket. When activated, this switch allowed the lineman using the bucket to cut off the power generated by the truck below and thereby stop the movement of the bucket in an emergency.

After testing the kill-switch to make sure that it was activated, Cappellini entered the bucket and caused it to rise toward the upper part of the pole on which he was working. He controlled his speed and direction by manipulating levers in a control box on the outer side of the bucket's upper

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rim. The control box was surrounded on three sides by a fiberglass "safety guard" that rose above, but not over, the levers.

Cappellini first removed the pole's lower cross-arms, and then directed the bucket upwards. As the bucket traveled toward the higher cross-arms, the control box came into contact with a horizontal cable. Notwithstanding the protection afforded by the fiberglass guard, the cable jammed his hand against the operating levers, preventing use of those levers to stop the bucket's upward course.

Cappellini sought to stop the bucket by using the kill switch, but the switch did not function. Nor was the bucket's movement halted by the "relief valve," an alternate safety mechanism designed to cut power off automatically when the pressure against the bucket exceeded a specified level. Instead, the bucket's power continued unabated, and the upward pressure snapped the cable that was pressing down on the control box. When the cable snapped, Cappellini was thrown from the bucket. He sustained severe injuries as a result of his forty-foot fall.

Cappellini and his wife subsequently sued McCabe in this diversity action, alleging that both the fiberglass safety guard and the kill-switch system had been defectively designed and that the relief valve had been defectively manufactured. Plaintiffs contended that the safety guard was defective because it did not form a hood over the bucket's control levers and that the kill-switch system was defective because, by requiring its operating button to be pulled out for activation, the system was susceptible to being turned off inadvertently if someone brushed against the button. McCabe denied these claims, raised the defense of contributory negligence, and impleaded Con-Ed as a third-party defendant. In denying its liability based on defective design of the safety guard, McCabe contended not only that its design was adequate but also that any design defect of the guard was not a cause of the accident. The cause, McCabe said, was Con-Ed's conduct in cutting down the sides of the safety guard, thereby permitting Cappellini's hand to become jammed against the controls by an overhead cable. As a third-party plaintiff, McCabe contended that Con-Ed negligently maintained the bucket and bucket truck. Among the instances of negligent maintenance by Con-Ed inferable from the evidence were Con-Ed's cutting down the sides of the safety guard, allegedly done to permit the bucket truck to be garaged for repairs, and Con-Ed's failure to assure that the relief valve was kept at a proper setting so that it would shut off power when pressure was created by the bucket's movement against an obstruction. McCabe also contended that the "specifications" accompanying Con-Ed's purchase order had dictated the particular design features at issue and that any defect in the design of the safety guard or the kill-switch system must therefore be attributed to the negligence of Con-Ed.

The jury was asked to answer a set of special interrogatories. Interrogatory 1, focusing on the safety guard and the kill-switch system, asked whether "a defect in the design" of the McCabe bucket truck was a substantial factor causing plaintiff's injuries. The jury answered "yes." Interrogatory 2, focusing on the relief valve, asked whether "a defect in the manufacture" of the McCabe bucket truck was a substantial factor causing plaintiff's injuries. The jury answered "no" to this interrogatory and to Interrogatory 3, which asked whether Cappellini had been contributorily negligent. 1 In response to Interrogatories 4 and 5 concerning the damages suffered by plaintiffs, the jury awarded $1,370,000 to Cappellini and $350,000 to his wife.

The jury was also asked to answer three additional interrogatories concerning

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McCabe's third-party claim against Con-Ed. Interrogatory 6 asked whether a failure by Con-Ed "to exercise reasonable care in maintaining" the bucket truck was a substantial factor causing plaintiff's injuries. As far as we can tell, the jury's consideration of McCabe's allegation that Con-Ed was liable on the third-party claim for negligent maintenance was not narrowed to any particular aspect of Con-Ed's conduct. 2 Focusing on the safety guard and the kill-switch system, Interrogatory 7 asked whether a failure by Con-Ed "to exercise reasonable care in the specifications it provided" was a substantial factor causing plaintiff's injuries. The jury answered "yes" to both interrogatories. Interrogatory 8, to be answered if Interrogatory 6 or 7 was answered "yes," asked the jury to determine "what percent of plaintiffs' damages is attributable to the negligence of Con-Ed." The jury answered "85%."

The jury was not asked to allocate Con-Ed's 85% share of responsibility between the two separate grounds of Con-Ed's negligence. The judgment awarded plaintiffs $1,720,000 from McCabe, plus $25,870.68 interest from verdict to judgment, and awarded McCabe 85% of $1,745,870.68 from Con-Ed. Both defendants appeal.

McCabe contends that plaintiff was contributorily negligent as a matter of law and that the evidence was insufficient to permit the jury to find that either of its alleged design defects caused plaintiff's injuries. Con-Ed, conceding that the evidence permitted a finding of its negligent maintenance (Interrogatory 6), contends that there is no evidence to support the jury's finding (Interrogatory 7) that Con-Ed's specifications caused McCabe to design the allegedly defective features of the safety guard and the kill-switch system. Con-Ed further contends that rejection of the "specifications" ground of its liability on the third-party complaint necessitates a new trial on the issue of comparative responsibility for Capellini's injuries. We examine these contentions in turn.

II. McCabe's Appeal

  1. Contributory Negligence

    McCabe first contends that, since Cappellini admitted that he was aware of the location of the horizontal cable, he failed, as a matter of law, to exercise reasonable care that would have avoided the accident. This argument overlooks the evidence, introduced by plaintiffs, from which the jury could properly have inferred both that Cappellini's task required delicate maneuvering of the bucket and that the bucket's controls made such maneuvering difficult. The availability of these inferences entitled the jury to conclude that Cappellini, even though aware of the danger overhead, was not shown to have failed to use reasonable care in operating the bucket.

    McCabe's second argument is based on an Occupational Safety and Health Administration (OSHA) regulation requiring persons working from an "aerial lift" to wear a "body belt" attached to the lift. It is conceded that Cappellini was not wearing such a belt. McCabe asserts that this violation of...

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