Lane v. New York State Elec. & Gas Corp.

• Decision Date: 07 March 1994
• Docket Number: No. 670,D,670
• Citation: 18 F.3d 172
• Parties: Kenneth R. LANE, II and Donna L. Lane, Plaintiffs-Appellants, v. NEW YORK STATE ELECTRIC & GAS CORPORATION; Kevin M. Hammond and Donna M. Hammond, Defendants-Appellees. ocket 93-7653.
• Court: U.S. Court of Appeals — Second Circuit

Page 172

18 F.3d 172

Kenneth R. LANE, II and Donna L. Lane, Plaintiffs-Appellants, v. NEW YORK STATE ELECTRIC & GAS CORPORATION; Kevin M. Hammond and Donna M. Hammond, Defendants-Appellees.

No. 670, Docket 93-7653.

United States Court of Appeals Second Circuit.

Argued Dec. 6, 1993.

Decided March 7, 1994.

Frederick J. DeFilippo, Elmira, NY (DeFilippo Brothers, of counsel), for plaintiffs-appellants.

Edward B. Hoffman, Elmira, NY (Donna M. Hutchison, Sayles, Evans, Brayton, Palmer & Tifft, of counsel), for defendant-appellee New York State Elec. & Gas Corp.

Michael E. Davis, Pittsford, NY (Michael G. Donnelly, of counsel), for defendants-appellees Kevin M. Hammond and Donna M. Hammond.

Before: OAKES, KEARSE and CARDAMONE, Circuit Judges.

OAKES, Senior Circuit Judge:

Appellants Kenneth R. Lane ("Lane") and Donna L. Lane commenced this diversity action to recover for injuries sustained by Lane as a result of his electrocution by high-voltage electrical power distribution lines owned, operated, and maintained by defendant-appellee New York State Electric & Gas Corporation ("NYSEG"). The accident occurred while Lane was climbing a 125-year old, rotting, hollow, red maple tree on North Street in the Village of Chemung, New York, on or adjacent to property owned by defendants Kevin M. Hammond and Donna M. Hammond ("the Hammonds"). The United States District Court for the Western District of New York, David G. Larimer, Judge, granted NYSEG's and the Hammonds' motions for summary judgment and dismissed the complaint. We vacate and remand for trial as to NYSEG and affirm as to the Hammonds.

BACKGROUND

For over a century, a red maple stood on the north side of North Street, a short distance from the intersection of North and Main Streets in the village of Chemung, New York. The tree was located six to seven feet in a north-westerly direction from a utility pole. The tree's location was in direct conflict with the passage of the utility line. It was evident that the utility company had removed some of the tree stems that were in the path of the utility line and had also pruned limbs on the lateral stem facing west where they faced the utility line.

The trunk of the tree originally went up approximately 16 feet and then forked into two stems which were lateral or side stems. The original lateral stem facing the east or North Street side had been removed or had fallen at least 10 years before the accident. Four shoots had sprouted at the point of removal and were approximately four to six inches in diameter, and these were cut by Lane just before his accident. The westerly-facing lateral stem appeared intact but showed scars from limbs of various sizes that had been removed either mechanically or naturally, most of these scars appearing on the side of the lateral facing the utility pole. This lateral went up approximately 18 feet and then forked again. The northerly fork was gone except for a piece of branch approximately 18 inches in length, appearing to have been removed within the last three years. By the appearance of the scar, it looked as though the fork had ripped from the stem. The remaining stub was ripped lengthwise, exposing a cross-section of the branch, which in turn exposed cross-section showed extensive heart rot in that branch. The trunk of the tree, before the first fork, also showed several old scars, one on the south side of the tree being a hollow cavity approximately eight inches in diameter, and at the first fork or crotch of the tree there was another cavity.

Independent professional forestry consultants indicated that the almost totally-rotted condition made the tree a threat to the power lines, the roads nearby, and anyone near the area. Apparently, red maple is always suspect to heart rot when it is larger than 20 inches in diameter, measured at the stump. Indeed, the interior of the stump was hollow a total of 29 inches of the total 39-inch diameter, or 74 percent thereof. The consulting foresters agreed that the tree had been hollow for a minimum of 25 years and had heart rot for at least 50 years. They further agreed that the tree showed a loss of 45 percent of its strength and had been in a hazardous condition for at least 25 years. They both concluded that the tree should have been removed years before.

On August 20, 1990, Lane, who had some previous experience as a tree climber and trimmer in the late 1970s, was injured as he climbed the old red maple some 30 to 35 feet from the ground. Disputed facts, which we must assume in Lane's favor, include whether he was indeed instructed to take down the tree by Kevin Hammond, who with his spouse owned the adjacent vacant lot on which they were about to build a house, and whether Hammond expressed concern for the safety of his family in the event that the tree fell. Given the condition of the tree, both of these are plausible assumptions. At any rate, taking the evidence in the light most favorable to Lane, he was to cut the maple tree down and use it for firewood. Lane was assisted by two brothers whom he had hired to assist in the tree removal. Lane's first step was to climb the tree in order to attach a rope to it so that as it was cut it would fall away from the power line. It is not disputed that Lane saw the power line before climbing the tree--indeed, the presence of the power line itself motivated Lane to climb the tree.

The line was a 12,500-volt, three-phase line, which is to say there were three live lines on the cross-piece and one "neutral" or grounded line below, with each live wire producing 7,200 volts to ground. The live lines were poly-covered but uninsulated. Below the electric lines, a telephone line and a cable television line were also strung.

Lane first removed the shoots or branches beneath the wires, then donned climbing jack spikes and a climbing belt and began to ascend the tree on the side of it away from North Street. He went up the trunk and then up the remaining lateral stem until he reached the fork. His purpose was to tie a rope to the tree above the live wires. At the fork, with his left hand on the side of the tree near the wires, he either contacted or came within arcing distance of the uninsulated surface of the third wire. A high voltage arc entered his left arm and hand and exited through his right arm and hand which were at the time of contact wrapped around the tree. He fell to the main tree trunk, hanging there until rescuers removed him from the tree and took him to the hospital for treatment including amputative and reconstructive surgery.

There is evidence before us of the statements of a professional product safety consultant with federal certification as an OSHA compliance instructor who has investigated more than 50 power line contact accidents, including several that have involved tree trimming. This expert stated that in his opinion Lane's accident was not unusual. Overall, the expert stated, about six persons per week are fatally injured and about three times that number suffer disabling injuries in power line contact accidents. According to a 1985 report of the Federal National Institute of Occupational Safety and Health, hundreds of Americans are killed each year and thousands injured from such accidents. In the expert's estimation, there are several factors contributing to the type of accident including the tree climber's anatomical configuration; task concentration; failure to judge accurately the distance to the lines; and failure to appreciate the fact that tree limbs can be, especially when moist, good conductors of electricity. ¹ It was the expert's opinion that the utility failed in its general safety duty to inspect regularly the lines and observe situations presenting a public safety hazard. The expert also expressed the view that NYSEG failed to trim and remove this tree according to recommended guidelines in general utility practice. The expert continued to state that Lane likely had difficulty in assessing the location of the lines vis-a-vis the tree trunk and limbs and that, had the tree been properly trimmed, the accident would not have happened since the separation distance established by such trimming would have permitted Lane to work without coming within such close proximity to the live wire, just a few inches from the tree. Indeed, in the expert's view, the power company should have removed the tree in accordance with industry standards. According to another expert, the National Electric Safety Code ("NESC"), Section 23, specifies "horizontal clearances from objects with a minimum clearance of three feet," although we do not know whether trees are "objects" within that Code. In addition, Section 20 of the NESC specifies that "trees that may interfere with supply conductors should be trimmed or removed," or suitably protected from "damage by abrasion and grounding of the circuit through the tree." Moreover--and this is significant--based on the utility's installation of three automatic splices in the vicinity of the tree in recent years, it appears that NYSEG had actual knowledge of the proximity of the tree stem and the rotted condition of the tree. Thus, NYSEG failed to cut and remove the rotted maple despite the fact that falling branches had evidently caused the power lines to be severed at some point in time.

THE DECISION OF THE DISTRICT COURT

The district court discussed the Hammonds' motion for summary judgment first and considered the question of common law negligence, Basso v. Miller, 40 N.Y.2d 233, 240-41, 386 N.Y.S.2d 564, 352 N.E.2d 868 (1976) (landowner must act as a reasonable man in maintaining his property in a reasonably safe condition). We think the court correctly held that whether or not the Hammonds owned the tree, which is in doubt, does not affect the outcome of the litigation under the applicable substantive law, see generally Cartier v. Lussier, 955 F.2d 841, 845 (2d Cir.1992) (summary judgment is not precluded where disputed facts...