Resendes v. Boston Edison Co.
| Decision Date | 06 June 1995 |
| Docket Number | No. 93-P-1515,93-P-1515 |
| Citation | 38 Mass.App.Ct. 344,648 N.E.2d 757 |
| Parties | Angelo RESENDES v. BOSTON EDISON COMPANY. |
| Court | Appeals Court of Massachusetts |
Thomas D. Burns (John J. McGivney, Patricia B. Gary with him), Boston, for defendant.
Philip N. Beauregard (Eli M. Nefussy with him), New Bedford, for plaintiff.
Henry C. Luthin & David R. Hegarty, South Boston, for Boston Water and Sewer Com'n, amicus curiae, submitted a brief.
Before PERRETTA, SMITH and IRELAND, JJ.
While working in a trench at a construction project, the plaintiff suffered severe injuries when he struck an underground power line of the defendant, Boston Edison Company (Boston Edison). As a result, he sued Boston Edison for negligence. A jury found Boston Edison eighty percent negligent and awarded damages of $5,500,000 for the plaintiff's injuries, which amount was reduced in the judgment to $4,400,000, based on the jury's apportionment of twenty percent of the negligence to the plaintiff.
Boston Edison appeals from the judgment, claiming the following errors: (1) the judge should have excluded the plaintiff's expert from testifying to alternate theories of liability when those theories were not raised until shortly before trial and where the expert's identity was not disclosed to the defendant until shortly before trial; (2) the judge should have directed a verdict in Boston Edison's favor because the plaintiff produced no evidence that his injuries were caused by Boston Edison's actions; (3) the judge should not have excluded from evidence an administrative decision of the Department of Public Utilities (DPU) that the plaintiff's employer had violated G.L. c. 82, § 40, the "dig safe" statute, in failing to provide required notice of excavation activities; (4) the judge should not have instructed the jury to determine whether Boston Edison had a duty either to warn the plaintiff as to the dangerous character of its underground power line or to monitor the construction project 1; and (5) the judge should not have allowed the jury to consider evidence of Boston Edison's violation of certain internal, governmental, and industry standards pertaining to installation of its underground power line.
On the evidence presented, the jury could have found the following facts. On June 12, 1990, approximately one month before the accident, the plaintiff's employer, Healy Construction Co. (Healy), was hired to repair a broken water main which had caused flooding in the parking lot adjacent to a building located at 470 Atlantic Avenue in Boston. Before starting the work, Healy notified the "dig safe" agency, a private organization established by the public utility companies to handle and coordinate the notices to utility companies by contractors planning to excavate in areas where public utility lines are located. Such notices are required by G.L. c. 82, § 40 (the "dig safe" statute). Healy was given an emergency "dig safe" approval form, with the designation "N.O.W.," meaning that excavation would start immediately, because of the extensive flooding in the building's parking lot caused by the broken main. The "dig safe" form would expire once the emergency was over. As required by the statute, the utility companies, including Boston Edison, alerted by the "dig safe" notice, marked the areas and locations of their underground lines. Because the precise location where excavation would occur was not known at the time of the marking, Boston Edison designated where its lines and ducts were, both in the parking lot and in the neighboring portion of Atlantic Avenue.
Healy started excavating in the parking lot and located first one, and later another, rupture in the water main. The plaintiff, who was the job foreman, found the water main and other utility lines, including Boston Edison's electric line, lying in a common trench, with Boston Edison's line resting on top of the water main. A contractor approved by Boston Edison was dispatched to the scene where he broke away the electric line's protective concrete casing, fireproofed and boxed the energized cables inside, while the plaintiff and his work crew repaired the water main. This accomplished, the water main was then covered with sand, the Boston Edison line reencased in concrete, the trench backfilled, and the building's water service restored.
While performing this work, Healy discovered that only one pipeline supplied the building's entire water needs. The city of Boston required two--one for domestic water supply and one for the building's fire sprinkler system. Accordingly, at the request of the property owner, Healy set about to install the required second line. Healy planned to install the second water line by taking a more direct route across Atlantic Avenue that would bypass most of the parking lot where the earlier work had been done. Healy obtained permits from the Boston public works department, the Boston transportation department, and the Boston Water and Sewer Commission (the commission). These permits expired July 7, 1990, two days before the accident. Healy did not, however, notify the "dig safe" agency of the additional nonemergency work which was to take place in the same general area where Boston Edison had already marked the location of its lines and ducts.
On or about June 29, 1990, Healy commenced excavation across Atlantic Avenue and discovered an agglomerate of cables and utility lines at the bottom of the trench. The plaintiff and other Healy employees carefully worked around most of the network of cables until they unearthed Edison's line, a 13.8 kilovolt duct. Three to five inches (or more) below and running parallel to it, a brick structure resembling on old sewer line was discovered. The space between the Boston Edison line and the old sewer line was insufficient to allow for installation of the new water line. The plaintiff consulted with Healy and was told that, according to the commission, the sewer structure was abandoned and, therefore, the plaintiff should remove several courses of brick from it to create enough room to lay the water line beneath the Boston Edison duct.
Using an air-driven chisel gun (referred to at trial as a "chipping gun"), the plaintiff and a coworker, Marcellino Almas, took turns working in the bottom of the trench on the night of July 9, 1990. The jury heard conflicting testimony as to whether the two worked only at breaking away the brick on the sewer structure or may also have chipped away part of the protective concrete casing, or sleeve, on the Boston Edison duct. The plaintiff testified that, just before the accident, he was in the trench resting on one knee while he held the chipping gun "downwards" at an angle breaking away pieces of the brick. The plaintiff received severe injuries when the chisel on the gun slipped and penetrated the concrete sleeve, striking the live 13.8 kilovolt cable inside. Because of his injuries he remembered nothing about the accident. At trial, the plaintiff (an experienced foreman on this type of project) admitted he was aware of the risk of receiving an electric shock if the chipping gun were to slip and pierce the duct. In addition, the jury heard testimony that the plaintiff had been warned by a Boston Edison inspector during the earlier parking lot excavation not to touch Boston Edison's ducts but to wait for a Boston Edison-approved crew to perform the necessary work.
Considerable evidence was elicited at trial concerning Boston Edison's installation in 1986 of the 13.8 kilovolt line. Boston Edison ran the line parallel to and slightly above the old brick sewer line, which was not depicted on any recent commission plan of its active, operating sewer and water lines. There was a dispute, however, as to whether the sewer structure was, in fact, abandoned. In any event, the commission had reviewed and approved Boston Edison's 1986 installation plan for the duct with conditions stamped on the plan that "[n]o ... duct ... shall be placed nearer than one foot of a water or sewer pipe" and that "[n]o structure shall be laid over a ... sewer pipe and running parallel with such ... sewer pipe, thereby preventing access to it from the surface of the street." Code 19 and Article 449 of Boston Edison's internal standards, reprinted below in the margin, 2 contained a somewhat similar provision that "[u]nderground services shall have a horizontal separation of at least twelve inches from all other services or systems." The plaintiff also produced evidence that Boston Edison had violated its own standards by failing to use plastic spacers along the side of the duct that would have provided a more rigid structure around which to pour and form the concrete sleeve. As a possible result, the concrete surrounding the duct, according to one expert, had "longitudinal fractures," suggesting it was brittle and weak, and, hence, easily penetrated.
Because it had received no "dig safe" notice of the work being done on Atlantic Avenue, apart from the emergency notice it had received for the earlier parking lot work, Boston Edison denied knowledge of Healy's or the plaintiff's activities and also denied that it had a duty to warn the plaintiff of the dangers of excavating around its lines. Had Boston Edison known of the renewed construction work near its lines, a construction supervisor for Boston Edison, Paul Roche, testified, "I would have had an inspector go by that job every evening ... and I would have made sure that when [the plaintiff] was excavating in the area of our duct line, it was not touched...." For his part, the plaintiff claimed that a certain unnamed or unidentified Boston Edison employee did, in fact, know about the work being done on Atlantic Avenue.
1. Late identification of an expert witness. Throughout much of the pretrial period, the plaintiff based his theories of negligence on Boston...
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