Miner v. Long Island Lighting Co.

• Decision Date: 24 March 1975
• Citation: 365 N.Y.S.2d 873,47 A.D.2d 842
• Parties: Linda MINER, Individually and as administratrix of the Estate of Edward Miner, Respondent-Appellant, v. The LONG ISLAND LIGHTING COMPANY, Defendant and Third-Party Plaintiff-Appellant-Respondent, FLORAL PARK LANDSCAPING CO., INC., Third-PartyDefendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 873

365 N.Y.S.2d 873

47 A.D.2d 842

Linda MINER, Individually and as administratrix of the Estate of Edward Miner, Respondent-Appellant, v. The LONG ISLAND LIGHTING COMPANY, Defendant and Third-Party Plaintiff-Appellant-Respondent, FLORAL PARK LANDSCAPING CO., INC. Third-PartyDefendant-Appellant-Respondent.

Supreme Court, Appellate Division, Second Department.

March 24, 1975.

David K. Kadane, Hempstead (Montfort, Healy, McGuire & Salley, E. Richard Rimmels, Jr., and Francis J. Healy, Mineola, of counsel), for Long Island Lighting Co.

Simpson, Thacher & Bartlett, New York City (Roy L. Reardon and Kenneth A. Zitter, New York City, of counsel), for Floral Park Landscaping Co., Inc.

Fuchsberg & Fuchsberg, New York City (Jacob D. Fuchsberg, New York City, of counsel), for Miner.

Before GULOTTA, P.J., and CHRIST, MUNDER, HOPKINS and COHALAN, JJ.

MEMORANDUM BY THE COURT.

In a negligence action to recover damages for personal injuries and loss of consortium, (1) defendant and third-party plaintiff the Long Island Lighting Company (Lilco) and third-party defendant Floral Park Landscaping Co., Inc. appeal from a judgment of the Supreme Court, Kings County, entered April 9, 1973, in favor of plaintiffs against Lilco upon a jury verdict; (2) Floral Park also appeals from an order of the same court, entered January 4, 1973, which, Inter alia, granted Lilco's motion to set aside the jury verdict in the third-party action on the ground of inadequacy (that verdict awarded Lilco recovery over against Floral Park of 5% Of the amounts of the verdict in favor of plaintiffs against Lilco) unless Floral Park were to stipulate that its degree of fault be fixed at 25% Of plaintiffs' verdict against Lilco; and (3) plaintiffs appeal from an order of the same court, dated September 9, 1974, which, upon Floral Park's motion, set aside the verdict and the judgments thereon to the extent of directing a new trial between plaintiffs and Lilco on the issue of damages.

Judgment reversed, on the law and the facts, without costs, and complaint and third-party complaint dismissed.

Orders reversed, on the law, without costs, and motions dismissed as academic.

Plaintiff Edward Miner, while acting in the course of his employment as a tree trimmer for third-party defendant Floral Park on August 15, 1969, was subjected to a strong current of electricity when he came into contact with a high tension wire which ran through a tree. The wire was owned and maintained by defendant Lilco, which had installed it in 1941. Its installation concededly exceeded the minimum safety requirements of the National Electric Safety Code and was in conformity with the practice throughout Long Island and, indeed, throughout the United States.

Expert witnesses called by plaintiffs testified that the wire, which had a weatherproof covering, would have been safer had it had a polyethylene insulation. One of these witnesses said that even with such insulation the wire should be treated as though it were 'hot' and that he would not approach such a line 'with a ten-foot pole'.

Miner, who testified that he had little previous training or experience with regard to electrical lines, had received oral instructions from his employer two days before the accident to trim the tree through which the line ran. He was aware of the presence of the wire.

In our opinion the proof did not establish Lilco's negligence. Although the rules of the Board of Standards and Appeals (12A NYCRR 3.1 et seq.), promulgated by virtue of the provisions of section 206 of the Labor Law (L.1967, ch. 623, § 1), required that Lilco be notified that a tree trimmer was to do work in the vicinity of the line, no such notice was given and Lilco was unaware that such work would be in progress.

There was no latent defect or unknown danger in the wire. In the cases in which electric companies have been held liable as the result of contact with a high tension wire the companies had knowledge that work was being done in the area of the wire and, having knowledge, failed to properly warn, deenergize or reposition the wire (see, e.g., Collins v. City of New York, 28 N.Y.2d 910, 322 N.Y.S.2d 734, 271 N.E.2d 264; Troidle v. Adirondack Power & Light Corp., 252 N.Y. 483, 169 N.E. 654; Mikolasko v. New York State Elec. & Gas Corp., 8 A.D.2d 648, 185 N.Y.S.2d 95, mot. for lv. to app. den. 7 N.Y.2d 707, 193 N.Y.S.2d 1028, 162 N.E.2d 755; Ostrom v. Patchogue Elec. Light Co., 32 A.D.2d 671, 300 N.Y.S.2d 788; Nicholas v. New York State Elec. & Gas Corp., 283 App.Div. 291, 299, 127 N.Y.S.2d 490, 498).

Lilco was not bound to use the best methods or to have the safest line (cf. Garthe v. Ruppert, 264 N.Y. 290, 296, 190 N.E. 643, 646), but was merely bound to keep the line in a reasonably safe and appropriate condition. This it did. The cases relied upon by plaintiffs, such as Smullen v. City of New York, 28 N.Y.2d 66, 320 N.Y.S.2d 19, 268 N.E.2d 763 and Runkel v. City of New York, 282 App.Div. 173, 123 N.Y.S.2d 485, are not apposite, as they involved either latent defects or a danger unknown to the user of the instrumentality. This case, however, involved a wire with no latent defect and its danger as a live wire was known to Miner.

Plaintiffs also argue that the line was placed too close to a house and that its proximity could have resulted in injury to someone working on the roof of the house. They rely upon a series of cases that stand for the general proposition that negligence can be found even if the defendant cannot foresee the particular manner in which an accident will occur, as long as the possibility of an accident occurring is clear.

Here, however, the wire actually conformed to prescribed safety requirements and its proximity to the house had nothing at all to do with the accident. Were the wire in fact placed too close to the house, persons unaware of the danger might have been exposed to the wire. If such a person had been injured, negligence would have arisen out of the placement of the wire. Such negligence, however (if, indeed, there was such negligence in this case--the clearance from the house to the wire appears to have been about nine feet), did not contribute to Miner's accident. He was a tree trimmer. Lilco had the right to expect conformity with the rules governing tree trimmers promulgated by the Board of Standards and Appeals. His injury was unrelated to the distance of the wire from the house. The electric line presented to him a known danger.

Similarly, the suggestion in plaintiffs' brief that the waterproof covering on the line resembled polyethylene insulation in appearance and thereby gave a false impression of safety is not persuasive. Miner testified that he tried to keep away from the wire. He did not rely upon its appearance as an indication of its safety. Hence, any negligence in the appearance of the wire was not a proximate cause of the accident.

GULOTTA, P.J., and CHRIST and MUNDER, JJ., concur.

HOPKINS, Justice, dissents and votes (1) to reverse the order which set aside the verdict against Lilco in the main action and deny the motion upon which that order was made; (2) to affirm the order which set aside the verdict in the third-party action unless Floral Park were to stipulate that its degree of fault be fixed at 25% Of plaintiffs' verdict; (3) to affirm the judgment insofar as it is in favor of plaintiff Linda Miner on her cause of action for loss of services, etc.; and (4) to reverse the judgment insofar as it is in favor of Edward Miner (now deceased) and to grant a new trial on his cause of action, on damages alone, unless the plaintiff administratrix stipulates to reduce the verdict of that cause to $850,000, with the following memorandum:

Plaintiff Edward Miner was given a jury verdict against Lilco in the sum of $2,000,000 on December 15, 1972. The jury at the time of the verdict decided that Floral Park, the employer of Miner, should bear 5% Of the liability. Thereafter, Lilco moved to set aside that apportionment, and the trial court granted the motion unless Floral Park were to stipulate that its liability should be 25%. Edward Miner died on November 7, 1973. On September 9, 1974 the trial court set aside the judgment on the main action and directed a new trial because the judgment was considered excessive in view of Miner's death.

From these facts three principal issues evolve: (1) whether the jury could properly find Lilco liable for Miner's injuries by reason of its negligence; (2) whether the trial court should have set aside the judgment because Miner died while the case was in the appellate process; and (3) whether the judgment was excessive.

1. The liability of Lilco. The electric line which caused. Miner's injuries carried over 7,000 volts. It was maintained on private property under an easement executed in 1940, which, among other things, permitted Lilco to trim any trees in its vicinity so as to clear its lines by at least 48 inches on either side. The line was stretched through the branches of a large tree which stood within 7 feet of a building on one side and within 12 feet of another building on the other side. Though covered with material, the line was not insulated.

Miner was employed by a tree trimming company which had been hired to trim the branches of the tree. The photographs in evidence show that the tree was located between two houses in what appears to be a residential development. While engaged in this work, Miner came into contact with the high voltage wire and received serious injuries.

The duty of Lilco, as a supplier of electricity, has been defined by case law. In 1911 the Court of Appeals held that a power utility must apprehend that under certain circumstances a person may come into contact with high voltage wires and must guard against such a contingency (Braun v. Buffalo Gen. Elec. Co., 200 N.Y. 484, 490, 94 N.E. 206, 208). The question in each case is the character of the circumstances which require the...