Miner v. Long Island Lighting Co.

• Decision Date: 15 July 1976
• Citation: 353 N.E.2d 805,386 N.Y.S.2d 842,40 N.Y.2d 372
• Parties: , 353 N.E.2d 805 Linda MINER, Individually and as Administratrix of the Estate of Edward Miner, Deceased, Appellant, v. LONG ISLAND LIGHTING COMPANY, Defendant-Respondent and Third-Party Plaintiff, v. FLORAL PARK LANDSCAPING CO., INC., Third-Party Defendant-Respondent.
• Court: New York Court of Appeals Court of Appeals

Page 842

386 N.Y.S.2d 842

40 N.Y.2d 372, 353 N.E.2d 805

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

Court of Appeals of New York.

July 15, 1976.

Morton Povman, Forest Hills, Abraham Fuchsberg, Edwin N. Weidman and Roger Bennet Adler, New York City, for appellant.

E. Richard Rimmels, Jr., and Francis J. Healy, Mineola, for Long Island Lighting Company, defendant-respondent.

Roy L. Reardon, Kenneth A. Zitter and Rosalind M. Gordon, New York City, for Floral Park Landscaping Co., Inc., defendant-respondent.

GABRIELLI, Justice.

While preparing to secure his position in a tall oak tree prior to trimming its branches, plaintiff, an employee of third-party defendant Floral Park Landscaping Co., Inc. (EPLC), came into contact with a 7,620 volt uninsulated power line maintained and owned by defendant Long Island Lighting Company (LILCO). As a consequence, he suffered severe burns and fell from the tree, causing him to sustain further serious injuries. Plaintiff Miner and his wife brought this action against LILCO for personal injuries and loss of services because of LILCO's negligence in positioning the wire and failing to properly insulate or maintain the power line. LILCO, in turn, commenced a third-party action over against Miner's employer, FPLC.

The jury rendered verdicts in favor of the Miners and against LILCO in the sum of $2,175,000; and judgment was entered thereon. ¹ A divided Appellate Division reversed the judgment, on the law and the facts, and dismissed the complai apparently on the ground that plaintiffs failed to establish the breach of duty by LILCO which might have been a proximate cause of the accident. ²

The principal issues are whether LILCO, in the circumstances described below, owed an obligation to Miner to exercise care to keep its power lines in a reasonably safe condition and, if so, whether, upon the evidence adduced at trial, the jury could properly have concluded that LILCO breached its duty to Miner.

Two days prior to the accident, Samuel Soffer, president of FPLC, gave Miner, then 23 years old, an order to trim a tree at 12 Elm Drive in New Hyde Park, a village located in suburban Nassau County. The tree was approximately 60 feet tall, in close proximity to a private residence and laden with the leaves and foliage of midsummer. Although he instructed Miner as to 'what and how much to cut', it does not appear that Miner knew of the dangers posed by the high-voltage wires which passed through the tree nor did Soffer notify LILCO of its intention to do tree trimming. Evidence at trial showed that Miner had completed but one year of high school and had no electrical training or experience. Although he had worked as only a seasonal tree trimmer for three years and that only on three or four occasions had trimmed trees of up to 20 feet in height, Miner had never received any climbing training and had been utilized principally for cleaning up the debris that was trimmed from the trees by others.

On August 15, 1969, the day of the accident, Miner, and his helper-brother, Robert Paul Miner, arrived at the job site, unloaded their equipment and prepared to trim the tree. Plaintiff testified that prior to climbing the tree he donned the appropriate safety equipment including a safety line which he clipped onto his belt. He stated that he climbed the tree looking up after every step to locate something to which he could cling with his hands. He climbed up past the main fork in the tree, which was approximately 20 feet above ground level, and out on one of the main limbs of the tree. He then prepared to throw the safety line around the tree to secure himself in order to prevent a fall. That was, he explained at trial, 'the last thing I remember'. His brother Robert who had observed Edward during the preparations and climb, corroborated his testimony and also detailed for the record the sound and odor of the electrical shock, and Edward's subsequent fall from the tree. Other evidence demonstrated, and it is not now disputed, that Miner inadvertently made contact with the primary power line (carrying 7,620 volts) as well as a neutral line, which ran parallel to each other above the fork in the main tree limbs. By simultaneously touching both electrical lines with his safety line, Miner completed a potent electrical circuit that caused the severe shock which burned him and knocked him out of the tree.

The power lines, owned and maintained by LILCO, had been installed in 1941 and had, or so the jury could have found, not been examined or inspected again until after the accident. The primary or high-voltage line was strung within 7 feet of a residence on one side and within 12 feet of a residence on the other, and was at a height of approximately 23 feet. It was covered by a gray material which gave the equivocal appearance of being an insulation covering but in fact served only as weather-proofing.

Alexander Kusko, a professor at the Massachusetts Institute of Technology and an electrical engineering expert, testified that 7,620 volt power lines were used in industrial areas, and that their use in residential areas created a safety hazard. Moreover, it was definitely not, he said, a good safety practice to pass such high voltages through uninsulated wires in residential areas. In addition, he noted that at the time of the accident there was commercially available wire, commonly known as 'tree wire', capable of insulating 7,620 volts. Professor Kusko further testified that sound safety practice required that all distribution circuits including those running through trees be inspected routinely, and the failure to inspect the wire in issue for over 28 years was not a safe practice. On cross-examination, he recognized that the primary power line had been installed within the limits of the National Electric Safety Code and that rule 3 of the Board of Standards and Appeals (12 NYCRR 3.1 Et seq.) set forth good practices.

Another expert called by plaintiff, an electrical engineer employed by the Grumman Aerospace Corporation, expressed his agreement with Professor Kusko's testimony and stated that it was his opinion that it was not a good or safe practice for LILCO to run uninsulated high-voltage power lines through a populated, suburban area. He testified that at the Grumman Aerospace facility where he worked, uninsulated high-voltage lines were not strung within 50 feet of any building, and that such spacing was consistent with good electrical safety practices.

Neither LILCO nor FPLC called any electrical engineering experts.

The defense, insofar as it related to the main complaint, was to show that Miner was a sufficiently experienced tree trimmer so as to be conscious and aware of the presence of the wires and the risk they created, and that he disregarded that risk; and also that he was obligated to give LILCO notice that work was to be performed within six feet of a high power line, as required by rule 3 (12 NYCRR 3.6(c)). ³ Relevant thereto, the Trial Judge in his charge read the jury the following pertinent provisions of rule 3 (12 NYCRR 3.2, 3.4):

'Rule 3.2 states as follows: 'It is the purpose and intent of this part (rule) to require reasonable and proper guarding against personal injuries to all persons hired to engage in the cutting, trimming or removal of trees or brush around or near power lines or power facilities.'

'Section z.4, subdivision I, defines tree trimmer and states as follows: 'A person who trims, cuts and removes trees or brush around or near power lines and power facilities. For the intent of this part (rule) the following experience and qualifications are defined as minimum requirements for grades of tree trimmers.

'1. Apprentice tree trimmer. A tree trimmer at least eighteen years of age, who is in the process of receiving at least one year of apprentice training in trimming, cutting and removal of trees and brush under the supervision of a job foreman.

'2. Trained tree trimmer. A tree trimmer, at least nineteen years of age, who has received at least one year of apprentice training in trimming, cutting and removal of trees and brush under the supervision of and satisfactory to a foreman.

'3. Job foreman. A tree trimmer, at least twenty-one years of age, who has at least two years experience as a trained tree trimmer in cutting, trimming and removing trees and brush";

and then charged that:

'it shall be for you to determine whether the plaintiff was a tree trimmer within the definition of that term as set forth in the rules and dependent upon such determination whether the duties devolving upon a tree trimmer under the rules shall apply to the plaintiff.'

Later in the charge and regarding contributory negligence he added that:

'Now, the plaintiff has testified that he had no knowledge of the existence of Rule 3 of the Board of Standards and Appeals. Nevertheless, that does not make the rule any less binding upon him provided that you shall find from his background and experience that he was a tree trimmer within the meaning of the term as defined in section 3.4, subdivision I, of the rules.

'Now, if after considering the background and experience of the plaintiff husband in the tree-trimming business, you shall...