Cardinal v. Long Island Power Authority

Decision Date10 March 2004
Docket NumberNo. 00-CV-1517(SJF)(WDW).,No. 99-CV-8182(SJF)(WDW).,99-CV-8182(SJF)(WDW).,00-CV-1517(SJF)(WDW).
Citation309 F.Supp.2d 376
PartiesTrevor CARDINAL, Plaintiff. v. LONG ISLAND POWER AUTHORITY, Long Island Lighting Company, Keyspan Energy Corporation, Keyspan Generation LLC, the Brooklyn Union Gas Company, Town of North Hempstead and Stanley Irwin, Defendants. TIG Insurance Company, Plaintiff, v. Stanley Irwin, Jr. and Jill Irwin, Trevor Lee Cardinal, Town of North Hempstead, Long Island Power Authority d/b/a/ Lipa, Long Island Lighting Company, Keyspan Energy Corporation, Keyspan Generation LLC, the Brooklyn Union Gas Company, Derik Irwin, Derek Irwin d/b/a Spectrum Realty, Stanley Irwin, Jr. d/b/a Spectrum Realty and Spectrum Realty Defendants.
CourtU.S. District Court — Eastern District of New York

D. Daniel Engstrand, Jr., Doniger & Engstrand, Islandia, NY, Leonard Porcelli, Karl, Clerkin, Redmond, Ryan, Perry & Girvan, Mineola, NY, for Plaintiffs.

David Lazer, Lazer, Aptheker, Feldman, Rosella & Yedid, P.C., Melville, NY, Patrick Neglia, Cullen & Dykman, Brooklyn, NY, John W. Hoefling, Kelly, Rode & Kelly, LLP, Mineola, NY, James P. Haggerty, East Norwich, NY, James J. Lynch, Williston Park, NY, Vincent D. McNamara, The Law Office of Vincent D. McNamara, East Norwich, NY, Alan S. Russo, Russo, Keane, Sokoloff & Toner, LLP, New York, NY, for Defendants.

OPINION & ORDER

FEUERSTEIN, District Judge.

I. Introduction

On June 26, 1999, Trevor Cardinal and Stanley Irwin, Jr. were discarding a pile of tree limbs and branches down an embankment onto property owned by Keyspan Generation. (Cardinal's Local Civil Rule 56.1 Statement in Reply to Utility Defs.' Mot. para. 35-44). Trevor Cardinal, while standing near the crest of the embankment, was burned when a tree branch he was lifting touched one of LIPA's electric transmission lines located approximately four (4) feet above the embankment's plane and twenty-three (23) feet beyond the top of the embankment's slope. (Id. para. 36, 41). This opinion and order addresses several motions filed in two separate actions involving the accident.

II. Background
A. The Parties
1. Action 1 — CV-99-8182

Plaintiff Trevor Cardinal ("Cardinal"), a twenty-one (21) year-old male at the time of the accident, was living in rented premises owned by Jill Irwin ("Jill").

Defendant Stanley Irwin, Jr., at the time of the accident, was a real estate broker doing business as Spectrum Realty, who sold, rented, and managed residential and residential properties, some of which were owned by his son Derek and wife Jill. (TIG's Mot. for Summ. J., exh. V, at 13, 255-56, 260, 359). Derek Irwin was the owner of 14 and 14A Rams Hill Road in Glenwood Landing, New York in the defendant Town of North Hempstead (the "Town"). (Id., exh. T, p. 6-7, 11-15).

Cardinal performed various property maintenance duties for Stanley Irwin, Jr., and was compensated by a reduction in rent arrears owed to Jill and/or cash. (TIG's Mot. for Summ. J., exh. V, at 40-41, 53-58).

Defendant Keyspan Generation, LLC ("Keyspan Generation") owns property in Glenwood Landing, New York. (Utility Defs.' Not. of Mot. for Summ. J., exh. G).

Defendant Long Island Power Authority ("LIPA") owns an electric transmission and distribution facility on Keyspan Generation's property. (Id., exh. H, sec. 3.1). Its transmission lines, which traverse the Keyspan Generation property, run parallel to the side of a steep embankment which is adjacent to Rams Hill Road, a street owned by defendant Town of North Hempstead. (Utility Defs.' Local Civil Rule 56.1 Statement at 2-3; Town's Local Civil Rule 56.1 Statement para. 3, 6).

Defendant Town of North Hempstead (the "Town") has a ten (10) foot right of way from the curb of Rams Hill Road to the crest of the embankment bordering Keyspan Generation's property. (Cardinal's Local Civil Rule 56.1 Statement in Opp'n to Town's Mot. para. 8).

Defendant Brooklyn Union Gas Company ("BUG") owns and operates a gas distribution system in New York City under the name of Keyspan Energy Delivery New York. (Macklin Aff., annexed to Neglia Reply Aff. in Opp'n to Cardinal's Cross-Mot.).

Defendant Keyspan Energy Corporation ("Keyspan Corp.") is a subsidiary holding company. (Bereche Aff., annexed to Neglia Reply Aff. in Opp'n to Cardinal's Cross-Mot.).

2. Action 2 — CV-00-1517

Plaintiff TIG Insurance Company ("TIG") issued a homeowner's insurance policy to defendants Jill and Stanley Irwin, Jr. for the premises at 60 Beechwood Drive, Glen Head, New York. (TIG's Mot. for Summ. J., exh. N).

B. The Actions
1. Action 1 — CV-99-8182

Plaintiff Trevor Cardinal has sued Stanley Irwin, Jr., LIPA, LILCO, Keyspan Corp., Keyspan Generation, BUG, and the Town for negligence. (Utility Defs.' Not. of Mot. for Summ. J., exh. A).

2. Action 2 — CV-00-1517

Plaintiff TIG seeks a declaration that it does not owe any duty to defend or indemnify Jill and Stanley Irwin, Jr. based upon the insurance policy's "business pursuits" exclusion and that the policy does not otherwise afford any coverage for claims arising out of the injuries sustained by Cardinal. (TIG's Mot. for Summ. J., exh. H).

Jill Irwin has defaulted in this action.

III. The Action 1 Motions

Keyspan Generation, BUG, Keyspan Corp. (collectively, the "utility defendants"), the Town, and Stanley Irwin, Jr. have moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, arguing that no duty of care was owed to Cardinal and that the hazard was open and obvious.

A. Town of North Hempstead

Cardinal claims that the Town was aware that the embankment was being utilized for tree limb disposal and was negligent in failing to prohibit the dumping and failing to warn its residents of the electrical wires located nearby. (Cardinal's Local Civil Rule 56.1 Statement in Opp'n to Town's Mot. para. 6, 13, 15, 17). To be held liable for negligence it must be demonstrated that the defendant owes a duty of care to the plaintiff. See Pulka v. Edelman, 40 N.Y.2d 781, 782, 390 N.Y.S.2d 393, 358 N.E.2d 1019 (1976) (citing Palsgraf v. Long Island R.R. Co., 248 N.Y. 339, 342, 162 N.E. 99 (1928)).

A landowner owes "a duty to exercise reasonable care in maintaining [its] property in a safe condition under all circumstances, including the likelihood of injury to others, the seriousness of the potential injuries, the burden of avoiding the risk, and the foreseeability of a potential plaintiff's presence on the property." Kurshals v. Connetquot Cent. Sch. Dist., 227 A.D.2d 593, 593, 643 N.Y.S.2d 622 (N.Y.App. Div., 2d Dep't 1996); see also Basso v. Miller, 40 N.Y.2d 233, 241, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976); Galindo v. Town of Clarkstown, 305 A.D.2d 538, 538-39, 759 N.Y.S.2d 757 (N.Y.App. Div., 2d Dep't 2003). However, a landowner of abutting property does not owe a duty to warn or protect others from a defective or dangerous condition on neighboring premises unless such landowner of the abutting property causes or contributes to that condition. See Gehler v. City of New York, 261 A.D.2d 506, 507, 692 N.Y.S.2d 397 (N.Y.App. Div., 2d Dep't 1999); Badou v. New Jersey Transit Rail Operations, 221 A.D.2d 303, 304, 633 N.Y.S.2d 530 (N.Y.App. Div., 2d Dep't 1995); Pensabene v. Inc. Vill. of Valley Stream, 202 A.D.2d 486, 486, 609 N.Y.S.2d 75 (N.Y.App. Div., 2d Dep't 1994).

Although it is unclear whether Cardinal was standing upon the Town's right of way or Keyspan Generation's property at the time of the incident, it is undisputed that the electrical wires are located upon Keyspan Generation's property and that the electrical wires are 20-25 feet beyond the top of the embankment's slope, which borders the Town's property. While Cardinal contends that the Town's failure to trim the trees upon its right of away contributed to the allegedly hidden danger, he has not provided any evidence to refute the Town's evidence that Keyspan Electric, as assignee of LILCO, and not the Town, was responsible for cutting the foliage surrounding the electrical wires. (Utility Defs.' Not. of Mot. for Summ. J., exh. K). Thus, Cardinal has failed to raise a genuine issue of fact as to whether the Town caused or contributed to the placement of the electrical wires close to the embankment.

Since the Town neither owned the property nor caused or contributed to the dangerous condition, the Town did not have a duty to warn or protect others from the electrical wires upon Keyspan Generation's property.

B. Stanley Irwin, Jr.
1. High Voltage Proximity Act

Cardinal contends that Stanley Irwin, Jr. was negligent and subject to liability pursuant to the High Voltage Proximity Act. See Lane v. N.Y.S. Gas & Elec. Corp., 18 F.3d 172, 178 (2d Cir.1994) (opining that non-compliance with the High Voltage Proximity Act may be evidence of negligence). According to the High Voltage Proximity Act, an employer cannot require or permit an employee to participate in the handling of any materials if it is possible for such materials to come within ten (10) feet of a high voltage line unless precautionary action has been taken to de-energize the line. N.Y. Labor Law § 202-h(2)(b)-(3)(a) (McKinney 2002).

There are issues of fact that preclude a finding as a matter of law that Stanley Irwin, Jr. violated the High Voltage Proximity Act. First, the parties dispute the exact location on the embankment upon which plaintiff was standing at the time of his injury and the distance of the transmission wire to the ground decreases as one proceeds farther down the embankment's slope. After a review of the survey submitted by Cardinal, it is clear that the transmission wire can be anywhere from nineteen (19) to twenty-six (26) feet from the ground depending on one's precise location on the embankment. (Cardinal's Notice of Cross-Mot., exh. 3). Second, although Cardinal contends that the limb that he was lifting at the time of the accident was approximately twenty-two (22) feet...

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