Derdiarian v. Felix Contracting Corp.

• Citation: 414 N.E.2d 666,51 N.Y.2d 308,434 N.Y.S.2d 166
• Parties: , 414 N.E.2d 666 Harold DERDIARIAN et al., Respondents, v. FELIX CONTRACTING CORP., Appellant, and Consolidated Edison Company of New York, Inc., Respondent et al., Defendants. (And a Third-Party Action.)
• Decision Date: 20 November 1980
• Court: New York Court of Appeals

Page 166

434 N.Y.S.2d 166 51 N.Y.2d 308, 414 N.E.2d 666 Harold DERDIARIAN et al., Respondents,
v.
FELIX CONTRACTING CORP., Appellant,
and
Consolidated Edison Company of New York, Inc., Respondent et
al., Defendants. (And a Third-Party Action.) Court of Appeals of New York. Nov. 20, 1980.

Page 167

Harold Lee Schwab and Steven B. Prystowsky, New York City, for appellant.

Joseph J. Klem and Ernest J. Williams, New York City, for Consolidated Edison Company of New York, Inc., respondent.

Edwin N. Weidman and Norman E. Frowley, New York City, for Harold Derdiarian and another, respondents.

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.

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

Page 168

Corporation leave to appeal to this court upon a certified question.

The order of the Appellate Division, 71 A.D.2d 873, 419 N.Y.S.2d 656, 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.

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...