De Witt Properties, Inc. v. City of New York

Citation377 N.E.2d 461,44 N.Y.2d 417,406 N.Y.S.2d 16
Parties, 377 N.E.2d 461 DE WITT PROPERTIES, INC., et al., Respondents, v. CITY OF NEW YORK, Appellant, and Consolidated Edison Co. of New York, Inc., Respondent.
Decision Date11 May 1978
CourtNew York Court of Appeals
W. Bernard Richland, Corp. Counsel, New York City (Bernard Burstein, L. Kevin Sheridan and Richard Gross, New York City, of counsel), for appellant
OPINION

WACHTLER, Judge.

In an action to recover for damage to the plaintiffs' premises as the result of a burst water main in a Manhattan street, a jury returned a verdict against the City of New York which owns the water main and, against Consolidated Edison (Con Ed) for negligently installing a gas pipe on top of the city's water main. On this appeal by the city it is urged that there is no basis for holding the city liable because there is no evidence of specific negligence by the city and, in this case, negligence cannot be inferred from the city's ownership and control of the main under the doctrine of res ipsa loquitur, in view of the fact that Con Ed had access to the area and had been negligent in placing its gas pipe on top of, and pressing upon, the city's water main. Thus the city claims that the judgment should be set aside and the complaint against it should be dismissed. In the alternative the city argues that it is entitled to full indemnity from Con Ed.

The plaintiffs own a building on 79th Street, between Second and Third Avenues in Manhattan. The rear of the building extends to 80th Street where a city water main is installed beneath the surface of the road. During the early morning hours of May 10, 1972 the water main ruptured, flooding the street and the plaintiffs' premises, including the parking lot, basement and part of the first floor.

In January, 1973 the plaintiffs commenced this action against the city claiming, in effect, that the city was responsible for the damage because it neglected to repair and maintain the water main in a safe condition. The city entered a general denial and commenced a third-party action against Con Ed seeking indemnification on the ground that Con Ed negligently constructed and maintained utility equipment above the water main "thereby asserting undue stress" on the water main causing it to break. The plaintiffs then amended their complaint to join Con Ed as a defendant on the same grounds alleged by the city in the third-party complaint.

At the trial it was established that in 1874 the city had installed a cast iron water main, 48 inches wide, four feet beneath the surface of 80th Street. Ten years later Con Ed's six-inch gas pipe was installed above the city's water main. In 1961 Con Ed added a repair or service clamp to the gas pipe immediately above the area where the city's main ruptured in 1972. At the time of the accident Con Ed's apparatus was resting upon wooden blocking and wedges, two inches thick, which in turn rested on top of the city's water main.

A witness called by the city testified that in his opinion the wooden blocking and wedges had been installed by Con Ed to support its gas pipe, but he also indicated this type of device was often employed by the city to hold its water mains in place. It was conceded however that a city rule, included in all installation permits, required utility companies to allow a "minimum clear distance" of six inches between "any * * * other subsurface structure and any part of a water main." This rule, originally requiring a minimum clear distance of one foot, was first promulgated in the latter part of the 19th century, probably in 1883.

The city's experts explained that placing the gas pipe and clamp directly on top of the wooden wedges which rested on the city's water main was an unsafe engineering practice because it placed undue stress on the city's main, particularly during early morning hours when less water is drawn off and the pipe tends to vibrate from the internal pressure. In their opinion the stress exerted by Con Ed's structure was sufficient to burst the main, and the fact that the water main had ruptured or "blown out" along the top, in the vicinity of the gas pipe clamp, indicated that Con Ed was responsible.

Con Ed's expert agreed that the pressure from the gas pipe and clamp could increase the stress on the city's main, but stated that it would "not necessarily lead to a bursting of the pipe." In his opinion the greatest point of stress would be on the opposite side of the main and the fact that it had burst on top indicated to him, that the break was not caused by pressure from Con Ed's gas pipe but rather by a lack of "earth support" beneath the water main. This he felt was probably due to a "wash out" of the supporting earth; otherwise he was "at a loss" to explain it.

The city admitted that there was no record that it had ever inspected the water main after installation in 1874. It was not the city's practice to routinely tear up city streets to inspect the water pipes. Unless there was some trouble with the water main and there was no record of that in this case the safest and most economical course was to leave the main undisturbed. Nor were city representatives dispatched to inspect repairs made by utilities. Although utilities were required to file plans and obtain permits for original installations, thereafter they acquired a "blanket permit" to make repairs and service connections to existing structures. Thus the city had not inspected, and in fact had not been notified, of the 1961 repair or modification to Con Ed's gas line. There was also uncontradicted evidence that cast iron water mains had a useful life of at least 125 years, could last 500 years, and that such mains had been in use in Marseilles, France, for over 300 years.

At the conclusion of the trial, which was limited to the liability issue, the court, in its charge, noted the contentions of the parties and instructed the jury on negligence. In addition, with respect to the city, and over its objection, the court charged the jury that "If the instrumentality here the water main causing the injury was in the exclusive control of the defendant (City of New York), and if the circumstances surrounding the happening of the accident were of such a nature that in the ordinary course of events it would not have occurred if the party having control of the instrumentality had used care under the circumstances, the law permits but does not require the jury to infer negligence from the mere happening of the accident." The jury was also instructed that if they found both defendants negligent they should apportion the liability between them on a percentage basis.

As noted, the jury found both defendants liable. The award was apportioned 30% against the city and 70% against Con Ed.

The city alone appealed the verdict. By a divided court the Appellate Division affirmed (47 A.D.2d 300, 366 N.Y.S.2d 634). The majority noted (at pp. 302-303, 366 N.Y.S.2d at pp. 635-636) that the doctrine of res ipsa loquitur is only a species of the more general principle of circumstantial evidence and held that "There was evidence from which negligence of the City could be inferred, because, among other things, the water pipe was 98 years old and there was no indication that the City had inspected it during that time, although concededly responsible for its maintenance. Further, that the City had no inspector present when Con Ed made its installations. * * * Inasmuch as the jury determination had a rational basis, it would do violence to the Dole v. Dow, 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288, rule to reverse and dismiss the case against the City." The majority also held that the city was not entitled to indemnification from Consolidated Edison because the city had "shared" in causing the damage.

Following the affirmance by the Appellate Division the parties stipulated that plaintiffs' damages were $700,000. The city now appeals from the intermediate order affirming its liability.

A water company, of course, has the duty of maintaining and repairing its water mains so as to avoid injury to abutting property owners and the public generally (Jenny v. City of Brooklyn, 120 N.Y. 164, 24 N.E. 274; Layer v. City of Buffalo, 274 N.Y. 135, 8 N.E.2d 307; George Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455; Liability of Water Distributor for Damage Caused by Water Escaping from Main, Ann., 20 A.L.R.3d 1294, 1301-1302). Municipal corporations are held to the same duty of care as the private supplier of water (Layer v. City of Buffalo, supra ). The municipality however is not an insurer of its system (Jenny v. City of Brooklyn, supra ) and cannot be held liable for injury unless it is shown that the injury was caused by negligence in the installation or maintenance of the system (Jenny v. City of Brooklyn, supra, 120 N.Y. at p. 167, 24 N.E. at p. 275; George Foitis, Inc. v. City of New York, supra ). Thus if the municipality has notice of a dangerous condition or has reason to believe that the pipes have shifted or deteriorated and are likely to cause injury, it must make reasonable efforts to inspect and repair the defect (Layer v. City of Buffalo, supra; George Foltis, Inc. v. City of New York, supra, 287 N.Y. at pp. 115, 116, 38 N.E.2d at pp. 459, 460).

But all that is required is...

To continue reading

Request your trial
70 cases
  • Am. Ins. Co. v. City of Jamestown
    • United States
    • U.S. District Court — Western District of New York
    • October 22, 2012
    ......No. 10–CV–834–A. United States District Court, W.D. New York. Oct. 22, 2012. .         [914 F.Supp.2d 382] Charles C. ...at 322, 106 S.Ct. 2548; Reiseck v. Universal Communications of Miami, Inc., 591 F.3d 101, 104 (2d Cir.2010).          The analysis that ... See e.g., De Witt Properties, Inc. v. City of New York, 44 N.Y.2d 417, 423–25, 406 ......
  • Condoleo v. Guangzhou Jindo Container Co.
    • United States
    • U.S. District Court — Eastern District of New York
    • June 21, 2019
    ......New York. Signed June 21, 2019 ORDER FEUERSTEIN, District Judge: ...2d at 312-13 ; see also Bassett v. Electronic Arts, Inc. , 93 F. Supp. 3d 95, 100-01 (E.D.N.Y. 2015). Whether or ... such evidence to the magistrate judge." New York City Dist. Council of Carpenters Pension Fund v. Forde , 341 F. ...Paul Fire , 907 F.2d at 303 (citing De Witt Properties v. City of N.Y. , 44 N.Y.2d 417, 426, 406 ......
  • Lancaster Silo & Block Co. v. Northern Propane Gas Co.
    • United States
    • New York Supreme Court Appellate Division
    • May 23, 1980
    ......LANCASTER SILO & BLOCK COMPANY, Lancaster Silo, Inc., Coral. Pools, Inc., Appellants,. v. NORTHERN PROPANE GAS ...Knorr v. City of Albany, 58 A.D.2d 904, 396 N.Y.S.2d 507; Trybus v. ... . Page 1017. v. City of New York, 44 N.Y.2d 417, 426, 406 N.Y.S.2d 16, 377 N.E.2d 461). ......
  • Leland v. Moran
    • United States
    • U.S. District Court — Northern District of New York
    • June 22, 2000
    ......99-CV-1449. United States District Court, N.D. New York. June 22, 2000. Page 141. COPYRIGHT MATERIAL OMITTED. Page ...Chicago Bd. Options Exch., Inc., 898 F.2d 882, 885 (2d Cir.), cert. denied, 498 U.S. 850, ...at 606; East Coast Novelty Co. v. City of New York, 781 F.Supp. 999, 1010 (S.D.N.Y.1992); Wilson ...See DeWitt Properties, Inc. v. City of New York, 44 N.Y.2d 417, 377 N.E.2d 461, ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT