Kelly v. Long Island Lighting Co.

• Decision Date: 08 June 1972
• Parties: , 286 N.E.2d 241 Willis KELLY et al., Plaintiffs, v. LONG ISLAND LIGHTING CO., Respondent, Herrick Manor, Inc., Appellant, et al., Defendants.
• Court: New York Court of Appeals Court of Appeals

Page 851

334 N.Y.S.2d 851

31 N.Y.2d 25, 286 N.E.2d 241

Willis KELLY et al., Plaintiffs, v. LONG ISLAND LIGHTING CO., Respondent, Herrick Manor, Inc.,

Appellant, et al., Defendants.

Court of Appeals of New York.

June 8, 1972.

Arthur N. Seiff, New York City, for appellant.

Joseph D. Ahearn, New York City, and David E. Kadane, Hempstead, for respondent.

JASEN, Justice.

Defendant, Herrick Manor, Inc. (Herrick) appeals from an order dismissing its cross claim against defendant Long Island Lighting Co. (LILCO) on the ground that Herrick was guilty of 'active' negligence, and, therefore, not entitled to a recovery over from co-tort-feasor, LILCO.

The controversy between the parties arises out of an accident which occurred during the construction of an appartment building on Clinton Avenue in Mineola when plaintiff, Willis Kelly, who was employed as a laborer by D'Auria & Russo & Sons Contracting Co., a subcontractor on the job site, was injured by an electric charge emanating from a high tension wire owned and maintained by LILCO. Seeking recovery for the damages suffered as a result of the accident, Kelly and his wife commenced an action against LILCO and Herrick, the general contractor and owner of the construction site. LILCO, in its answer, cross-claimed against Herrick alleging that if a judgment is recovered against it, LILCO should have judgment over against Herrick. Herrick, in turn, in a cross claim against LILCO, prayed for similar relief if it should be liable to the plaintiffs.

The facts, as established at the trial, are not seriously controverted. On the day of the accident, a crane was operating in the center of the construction site. It was being used to transport concrete from trucks to the various foundation forms on the job site by means of a steel bucket attached to a cable coming down from the crane's boom. After the concrete pouring had been completed for the day, Kelly was directed by his employer to assist in the storage of the bucket. He then walked over to an area between the construction site and Clinton Avenue where the bucket was to be lowered to him so that he could steady and place it in a stationary position. When Kelly touched the bucket, he received an electrical shock. At this time, the boom of the crane was in contact with high tension wires, ¹ owned and maintained by LILCO along Clinton Avenue, which released the charge inflicting the injuries upon the plaintiff.

LILCO was aware of the construction that was being undertaken on Clinton Avenue near its high tension wires. It, however, did not take any protective measures with respect to the wires, such as de-energization, relocation or insulation. Nor did it post danger signs on the construction site, which would warn the workmen that the wires must be avoided because they conveyed high-voltage electrical current. Similarly, the president of Herrick, Joseph Scarpinato, knew of the existence of the wires and of the danger they presented to anyone coming near them. This was the very reason, according to his own testimony, that he visited LILCO, requesting insulation of the wires. ² Yet, Scarpinato acknowledged that he never warned Kelly or any other worker of the danger. Not only did he fail to warn anyone prior to the accident, but even at the time of the accident, when he saw the boom move from the center of the site toward the wires, he gave no warning to Kelly.

With respect to this proof, the court charged the jury that in order to hold LILCO liable, it must find that LILCO knew or should have known that a crane might come in close proximity to the wires, and that LILCO failed to warn the plaintiff of the potential danger, or to perform other protective measures to guard against that danger. To find Herrick guilty of negligence, the jury was charged that it must find that a dangerous condition existed on the construction site which condition Herrick had knowledge of, and that Herrick failed to warn plaintiff of that condition.

The jury returned a verdict in favor of the plaintiffs against both defendants. The Trial Judge, in turn, dismissed the cross claims of the defendants on the ground that each party was guilty of 'active' negligence, and, therefore, not entitled to a recovery over from the other.

On this appeal, Herrick argues that 'neither the active-passive dichotomy nor the performance of a nondelegable duty is the determining factor' as to its right over against LILCO, but that the appeal should be decided on the 'factual disparity between the respective conduct of the defendants'.

Prior to our recent decision in Dole v. Dow Chem. Co., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, it had been held to be the rule that a defendant found guilty of 'active' negligence could not recover over against another guilty of 'active' tort negligence. The rule as stated in Dole now permits apportionment of damages among joint or concurrent tort-feasors regardless of the...