Cassar v. Central Hudson Gas & Elec. Corp.

• Decision Date: 05 November 1987
• Citation: 521 N.Y.S.2d 337,134 A.D.2d 672
• Court: New York Supreme Court — Appellate Division
• Parties: Loretta C. CASSAR, as Administratrix of the Estate of Paul Cassar, Deceased, Respondent, v. CENTRAL HUDSON GAS & ELECTRIC CORPORATION et al., Appellants.

Page 337

521 N.Y.S.2d 337

134 A.D.2d 672

Loretta C. CASSAR, as Administratrix of the Estate of Paul Cassar, Deceased, Respondent, v. CENTRAL HUDSON GAS & ELECTRIC CORPORATION et al., Appellants.

Supreme Court, Appellate Division Third Department.

Nov. 5, 1987.

Howard Karger, of counsel, New City, for appellant Central hudson.

Peter L. Zimroth, Corp. Counsel (Fred Kolikoff, of counsel), New York City, for appellant City of New York.

Frederick J. Murphy Associates (Frederick J. Murphy, of counsel), Goshen, for respondent.

Before KANE, J.P., and MAIN, WEISS, YESAWICH and LEVINE, JJ.

MAIN, Justice.

Appeal from a judgment of the Supreme Court (Bradley, J.), entered May 19, 1986 in Sullivan County, upon a verdict rendered in favor of plaintiff.

In 1948, the City of New York and Central Hudson Gas & Electric Corporation, defendants herein, entered into a contract whereby, inter alia, the City would build an aqueduct between the Neversink and Roundout reservoirs and Central Hudson would construct a hydroelectric generating plant along side the aqueduct near the hamlet of Grahamsville in Sullivan County. The plant was to be constructed in such a manner as to use the City-owned water running through the aqueduct for the production of electric power. The water, after clearing the plant, would continue to flow within the aqueduct to its discharge point where the water emptied into Chestnut Creek and then continued on to the Roundout reservoir. The City determined the amount of water that was to flow through the aqueduct each week and Central Hudson, upon being informed of the amount, would determine how much water would be run through the turbines and upon which days and at what hours. ^* Generally speaking, Central Hudson's determination as to the turbine use was based upon the usage patterns of its customers. The flow of water through the aqueduct can be regulated or stopped by manipulation of the "broom gates" located at the upper end of the aqueduct and the flow of water, once in the aqueduct, can be stopped at the hydroelectric plant by completely closing the "wicket gates".

On the afternoon of June 21, 1982, decedent, Paul Cassar, and his friend and neighbor, Christopher Phillips, decided to go "tubing" in Chestnut Creek. Tubing is an exercise wherein one floats and hand paddles while resting upon an inflated inner tube. At the point on the creek where the boys entered the water, the creek was from 1 to 3 feet deep and the current was steady and moderate. Both boys had engaged in this activity on previous occasions and were familiar with the creek and the discharge area. After paddling upstream for awhile, the boys began to drift downstream for some distance where there was a swimming hole. After a swim, they drifted downstream intending to leave the creek a short distance above the aqueduct discharge point. Christopher was able to get ashore but decedent got caught in the discharge current and, though he was able to grab hold of a tree branch, was carried downstream when the branch broke. His body was recovered about a quarter of a mile downstream at a point where the water was several feet deep. When decedent was taken from the water, his color was described as good by one witness and another testified that he thought he detected a pulse beat while another testified that decedent appeared to be "consciously vomiting". However, paramedics' attempts at cardiopulmonary resuscitation were unsuccessful and decedent was pronounced dead at Ellenville Hospital emergency room where he had been taken by ambulance.

Subsequently, plaintiff, as administratrix of decedent's estate, brought this action for wrongful death and for conscious pain and suffering against the City, who concededly designed, built, maintains and owns the reservoir system and aqueducts, and Central Hudson. Plaintiff alleges that the City negligently designed the aqueduct and was negligent in the maintenance and control of the premises in not properly posting same, and in not erecting barriers so as to enclose the discharge area. In the action against Central Hudson, plaintiff alleges that it was negligent in causing the turbulence in the creek at the discharge point when it knew that children played along the creek, and in failing to fence the area and in failing to supply the area emergency personnel with the telephone number so that the water could be shut off more quickly. After trial, the jury found each defendant 40% liable and found that decedent was 20% responsible; damages of $100,000 were awarded in the wrongful death action and the same amount in the action for conscious pain and suffering. Both defendants have appealed.

Turning first to Central Hudson's contentions, we note that though it makes mention of the weight of and fair interpretation of the evidence, its argument, distilled down, clearly asserts that the jury's...