Kukuruza v. General Elec. Co., 74--1247

• Decision Date: 14 February 1975
• Docket Number: No. 74--1247,74--1247
• Citation: 510 F.2d 1208
• Parties: Michael KUKURUZA, Plaintiff-Appellee, v. GENERAL ELECTRIC COMPANY, Defendant-Appellant.
• Court: U.S. Court of Appeals — First Circuit

Page 1208

510 F.2d 1208 Michael KUKURUZA, Plaintiff-Appellee,
v.
GENERAL ELECTRIC COMPANY, Defendant-Appellant. No. 74--1247. United States Court of Appeals,
First Circuit. Argued Nov. 6, 1974.
Decided Feb. 14, 1975.

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Walter G. Murphy, Boston, Mass., with whom Murphy & Mitchell, Boston, Mass., was on brief, for defendant-appellant.

Albert P. Zabin, Boston, Mass., with whom Schneider, Reilly, Zabin & Connolly, P.C., Boston, Mass., was on brief, for plaintiff-appellee.

Before COFFIN, Chief Judge, McENTEE and CAMPBELL, Circuit Judges.

McENTEE, Circuit Judge.

Defendant General Electric Company appeals from a judgment for $175,301 entered against it following a verdict for plaintiff Kukuruza, who was severely injured when he fell from an overhead crane in a GE plant. Most of the facts were sharply disputed, but the relevant evidence is as follows: Kukuruza was an employee of W. T. Kenney Company,

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which entered into a contract with GE to paint the ceilings in the main floor, the walls, and the main bay crane at the GE plant in Medford, Massachusetts. It was stipulated that at the time of his fall Kukuruza was engaged as an employee of an independent contractor. Before the work began on November 29, 1968, George Caracostas, GE's plant and safety engineer at the Medford plant, spoke with Edward Kenney, secretary-treasurer of W. T. Kenney Company, and James Kenney, a foreman, about safety procedures. He explained that when the crane was to be worked on the GE safety procedure was to shut off its power by throwing the switch, to remove the fuses, and to tie a red tag across the handle warning that the switch could only be closed by the person who had signed the red tag. Caracostas told the Kenneys that the Kenney employees were never to touch the switch. Though Edward Kenney confirmed that he and James Kenney received these instructions, and though he testified that he instructed his foreman to relay them to the Kenney workers, Kukuruza testified that he was not told anything about the red tag procedures.

The overhead crane from which plaintiff fell travels on two horizontal and parallel I beams. There were electric cables on the crane and along its I beams. Plaintiff testified that he knew these were bare copper wires and thus dangerous. On December 2, 1968, plaintiff had put a primer coat of paint on the crane. On December 10, his second day at the job site, he had climbed up a ladder to the crane and begun assemblying his staging. At that point someone told him to come down so the crane could be used. When hollers to put on the power were heard, George Roundbehler, the Kenney foreman, pointed out the switch and told Kukuruza to put the power on. Plaintiff did so and testified he observed no red tag. The crane was used for a while, according to testimony of some of Kukuruza's coworkers, but the period of time was variously stated as at least 15--20 minutes and at least an hour. Edward Kenney testified that when he left the plant at 4:15 p.m. that day, before plaintiff's fall, he saw that the red tag was on the switch and it was shut down. Caracostas also testified he looked at the switch after the accident and it was red-tagged and the fuses were on the bench.

The plaintiff testified that GE workers, after they had finished with the crane, told him it was all right to use the crane; but he could not identify these workers more specifically. A number of GE workers testified they did not hear anyone tell him it was safe to go back up. He then put his ladder against the catwalk and climbed up to the crane again. He stated that he took no steps to check whether the power was off. Before the interruption plaintiff, a licensed rigger, had placed three planks, six feet long, so that they extended from one I beam to the other and rested on the flanges. He had also brought up a toothpick, which is a staging device shaped like an aluminum ladder with plywood covering the rungs but with exposed aluminum sides. When plaintiff reached the staging area after the interruption, he put the toothpick on top of the three planks to use as a walking plank and tied the toothpick with a rope to a pipe or angle iron so that it was touching one end of the crane. Then he put his left foot on the flange of the I beam, leaving his right foot on the toothpick, and reached over the I beam for his paint. As he put his hands on the I beam, he stated that he got a jolt, stiffened out, and fell. This account by the plaintiff of how the accident happened was sharply disputed by a number of GE employees who testified that they had seen him pushing a board with one foot shortly before the fall. The plaintiff's answers to interrogatories had also stated, in essence, that the accident had occurred because he slipped on improper planking. The rest of the facts are stated as needed in the opinion.

We begin our consideration of the errors alleged by defendant by examining whether the expert testimony of one Galagan, a consulting electrical engineer,

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who testified to having specialized knowledge on 'high voltage hazards' and 'electric shocks,' was properly admitted. Plaintiff had testified he felt a 'jolt' and stiffened up just before he fell, and Galagan was allowed to testify, over objection, that from plaintiff's version it 'sounded like' and 'appeared to me' that plaintiff received a high-impedance shock 'of short duration but sufficient to cause surprise that he got the shock and caused the involuntary movement on his part.' Galagan further testified that the 'most likely cause of the shock' was a 'potential difference,' that is, a difference in voltage between the plaintiff himself and the part of the crane he touched. In his opinion the probable cause of this potential difference was current leakage through the insulation of the wiring or around the terminal blocks or around the terminals of the motor.

Defendant objected to use of the word 'shock,' on the ground that the word 'jolt' used by plaintiff did not permit a clear inference that the sensation plaintiff felt was electrically induced. But Galagan's qualifications were adequate to allow him to express an opinion that plaintiff's 'jolt' under the circumstances described an electric shock. See Cain v. Southern Massachusetts Tel. Co., 219 Mass. 504, 107 N.E. 380 (1914).

Galagan based his testimony in part on the wiring diagrams of the crane and upon his examination of the crane some 5 1/2 years after the accident. Defendant objects that this evidence was admissible only if the trial judge first found that the condition of the crane was substantially identical at the time of the accident and the time of the inspection, and that plaintiff had the burden of proving this substantial identity. At most the trial judge needed only to conclude that a prima facie showing of substantial identity had been made, since the weight to be given to the evidence about the similarity of the conditions was plainly for the jury. Hines v. Stanley G.I. Electric Mfg. Co., 203 Mass. 288, 292, 89 N.E. 628, 630 (1909). The trial judge implicitly found substantial identity when after a bench conference he refused a motion to strike Galagan's testimony. At the bench conference counsel for defendant conceded the accuracy of the wiring diagrams upon which Galagan relied in part, and he stated that no relevant differences in the crane were known to him. Cf. Guinan v. Famous Players-Lasky Corp., 267 Mass. 501, 522, 167 N.E. 235, 245 (1929) (jury view). Moreover, GE's manager later testified that at the relevant times the crane was substantially the same electrically. Since defendant offered no evidence to show dissimilarity, e.g., Lee v. Commonwealth, 1972 Mass.Adv.Sh. 646, 281 N.E.2d 239, it was not prejudiced by the trial court's refusal to strike Galagan's testimony for this reason.

Defendant's last theory to exclude Galagan's testimony was that since he made no tests to determine whether any potential difference actually existed and since he could not say whether there was any leakage either at the time of the accident or at the time of his examination, his testimony was mere speculation and hence inadmissible. Defendant's principle that 'mere guesswork masquerading as expert testimony must be stricken' is sound, but the cases to which he analogizes the instant case are distinguishable. ¹

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Nass v. Duxbury, 327 Mass. 396, 99 N.E.2d 54 (1951), is the case most helpful to GE. In Nass the expert witness's testimony that the sand defendant dumped on the beach would have changed the channel of the river was dismissed as insufficient to sustain a verdict for plaintiff because, among other inadequacies, there was no evidence in the case 'that the sand allegedly in the channel was of the same texture or composition as that on the defendant's beach.' 327 Mass. at 402, 99 N.E.2d at 57. The court held that the expert's testimony did not foreclose other equally likely causes for the damages to plaintiff's land. In Nass the expert's attempt to show a causal connection between the presence of a blockade in the south channel and the defendant's dumping of sand on his land adjacent to the south channel was treated as a mere guess or conjecture by the court. No such deficient causal connection is present in Galagan's testimony. Plaintiff's testimony of a 'jolt' coupled with 'stiffening,' in the absence of any other explanation, provided a sufficient predicate for the expert's testimony of a high impedance shock, the most likely cause of which was a potential difference caused by current leakage. And taken collectively...