Derdiarian v. Felix Contracting Corp.

and blacked out. Plaintiff was employed as a foreman by Bayside Pipe Coaters; a subcontractor engaged by the general contractor Felix Contracting Corp. (Felix), to seal a 20-inch high pressure gas main that was being installed underground in Mount Vernon pursuant to a contract between Felix and Consolidated Edison Company of New York (Con Edison). The accident occurred about 2:00 p.m. on November 21, 1973 on Oak Street when, according to plaintiff, he was walking from his truck, parked adjacent to the excavation, towards a restaurant on the southeast side of the street. Plaintiff testified that he had parked his one-ton Chevrolet pickup truck parallel to the curb, adjacent to the west side of the excavation, at the direction of Felix’ foreman at the site. Consequently, the kettle of tar, which was heated by the torch head of a compression tank filled with kerosene, was set by plaintiff on wire milk baskets in line with the tailgate of the truck near the south curbline. Plaintiff said that he asked for the truck to be situated on the east side of the excavation. At the site of the accident, Oak Street runs east and west between North Bleeker (west) and North Bond Street (east). Oak Street is 30 feet wide and has two lanes of traffic, one in each direction. The excavation, some 12 feet measured north-south and 15 feet measured east-west, was located in the eastbound lane, about 70 feet east of Bleeker, a foot south of the center line of the street and about two feet from the curb. Felix argues that any finding of negligence was obviated as a matter of law by its proof that a workman had placed two barricades (A-frame "horses”) along the west side of Oak Street at North Bleeker, blocking the eastbound lane, and six or seven barricades along the mid-line of Oak Street beside the hole and that, in addition, there was a flagman. Felix maintains that it had done everything necessary and customary to ensure safety for excavation work of this type at such a site. It contends that the out-of-control vehicle was an unforseeable event and that the automobile could not have been prevented from entering the work area by any type of barrier nor protected against by any series of warnings by flagmen to workers. In our view, permitting the jury to determine the issue of Felix’ negligence was not error. Given the hazards to men .working in a hole near 400-degree tar, it was a question of fact—on which the experts differed—whether Felix’ safety measures were so inadequate as to be negligent and whether such negligence was a substantial factor in bringing about the harm (see Lopes v Adams, 37 AD2d 610 , affd 30 NY2d 499 ). Plaintiff’s engineering expert testified that there is a difference between a barricade and a barrier and that good practice called for a barrier to be placed across the entire width of the excavation to protect workmen from out-of-control cars. A barrier, the expert said, is "a truck or a piece of heavy equipment which will stop a vehicle from penetrating the work zone * * * required when you have a special hazard.” A barricade will not stop any vehicle but merely "channelize traffic or * * * outline the work zone”. The expert also testified that two flagmen were necessary and that there should have been advance warning signs. Defendant Felix’ expert engineer distinguished a barricade in the same way. He was of the opinion, however, that warning signs were not necessary, that a single flagman was adequate because the traffic signal served as a second flagman and that placement of two pieces of equipment to block Oak Street at the excavation site was not required practice. On one critical point, there was no disagreement. The one-ton Chevrolet pickup truck was available for use as a barrier across the eastbound lane if it had been parked in a north-south direction. Moreover, the expert testified that "If there happens to be a vehicle or a piece of equipment * * * available, it is prudent practice to make use of it in that

was taking medication for his condition; and 7. Despite his infirmity, Dickens would be driving an automobile; and 8. Dickens knew of the work going forward and had successfully negotiated a westward passage through the construction site earlier in the day, and apparently thought he could return without mishap; and 9. Dickens would black out in the immediate vicinity of the construction area; and 10. When Dickens blacked out, the flagman should somehow have stopped the Dickens’ car, wherever it was at the moment; and 11. Dickens would completely lose control of his car; and 12. The Dickens’ car, out of control, would knock down the western barricades and proceed in an easterly direction partly on the sidewalk area; and 13. * The Dickens’ car would strike the tar kettle; and 14.* The contents of the kettle would splatter over and injure plaintiff, even though Soares, plaintiff’s fellow employee, escaped unscathed from the scene. I am aware that "The exact occurrence or precise injury need not have been foreseeable; but the results of a negligent act must be not merely possible but probable” (1 PJI 2:12). However, in the light of the chain of events above established, this was merely an unforeseen and unforeseeable freak accident. The odds against such a happening are astronomical. By parity of reasoning, the fact that the accident did happen does not, in and of itself, establish that it was foreseeable. Ventricelli v Kinney System Rent A Car ( 45 NY2d 950 ), a case recently decided on the question of foreseeability, is in point. The facts in Ventricelli are simple. Plaintiff had rented an automobile with a defective trunk lid. He went to repeated efforts to keep it closed. While he was doing so on one occasion he was struck from behind. As the court noted (p 952): "That Kinney’s negligence in providing an automobile with a defective trunk lid would result in plaintiff’s repeated attempts to close the lid was reasonably foreseeable. Not 'foreseeable’, however, was the collision between vehicles both parked a brief interval before the accident. Plaintiff was standing in a relatively 'safe’ place, a parking space, not in an actively traveled lane. He might well have been there independent of any negligence of Kinney, as, for example, if he were loading or unloading the trunk. Under these circumstances, to hold the accident a foreseeable consequence of Kinney’s negligence is to stretch the concept of foreseeability beyond acceptable limits (see Prosser, Law of' Torts [4th ed], pp 267-270; Restatement, Torts 2d, § 435, subd 2).” Assuming, arguendo, that Felix was negligent in the physical set up at and near the excavation, "to hold the accident a foreseeable consequence” of Felix’ negligence "is to stretch the concept of foreseeability beyond acceptable limits”. Derdiarian equates the physical circumstances of Lopes v Adams ( 37 AD2d 610 , affd 30 NY2d 499 ) with those in the instant action. Lopes, however, is distinguishable on its own facts. The locale of the Lopes case was Van Wyck Expressway, a six-lane express highway. The lane in which the plaintiff was working was completely unprotected—no barrier—no barricades—no anything. As against' this we have Oak Street in Mount Vernon—a secondary, 30-foot-wide highway—barricaded to warn persons on the street—a flagman waving a red flag and an excavation some 70 feet east from the barricades. The defendant in Lopes may have had an ill-functioning steering mechanism, but there is no mention of any brake malfunction—nor is there anything to indicate that the driver lost consciousness before the happening of the episode. Derdiarian’s testimony is suspect in more than one respect. His implication that he heard the screeching of brakes does not square with the facts. By that time Dickens had already blacked out; and the erratic course of his car is proof positive that he had lost control of it. Moreover, the circumstance that plaintiff had been "ordered” to park his truck west of the

excavation because time was running out, borders on the incredible. From 11:30 a.m. when Derdiarian arrived on the scene until about 1:30 or 2:00 p.m. when the accident occurred, not one lick of work was done by him in the excavation. During this period plaintiff was lunching at the firehouse and fraternizing with the houseman. He had plenty of time and opportunity, if so minded, to move the truck to any position he desired. Therefore, his statement appears to be made out of whole cloth, and perhaps tailored for the occasion. Even if we accept as a fact that he was told to park his truck in a certain place nothing was said about the kettle. Three witnesses— Soares, Miller the flagman and Mrs. Cortazzo the school crossing guard—all placed the kettle only two feet from the southwest corner of the hole before the accident. When we consider how small the excavation was—12 feet by 15 feet—he could easily have moved the kettle to a position east of and adjacent to the hole and on a line with his truck without causing himself or his helper the slightest inconvenience. Had he done so he would not have been burned. Certainly the plates which covered the opening during nonworking hours would not have presented a problem. As a matter of law and more to the point in the circumstances of this case is the statement that: "This court has consistently held that the negligence complained of must have caused the occurrence of the accident from which the injuries flow” (Rivera v City of New York, 11 NY2d 856 , 857). There a child was severely burned when he fell into a bathtub full of hot water while standing on its edge trying to reach a light cord. In reversing a judgment for the plaintiff and dismissing the complaint, the court went on to note (p 857) that "The hot water created the specific injuries for which damages were sought * * * but it did not cause the intervening act which was not foreseeable.” The accident was caused by the slipping of a wet boot while the child balanced on the curved edge of the bathtub. Surely, at bar, where Felix had nothing whatever to do with the placement of the kettle and could not have dreamed that Dickens would appear out of the blue as he did, it (Felix) did not cause the "intervening act which was not foreseeable” and hence should not have been held responsible to Derdiarian. On the issue of proximate cause which in this case is closely allied to foreseeability, I return to Ventricelli where the terms are used almost interchangeably ( 45 NY2d 950 , 951-952, supra): "Proximate cause and foreseeability are relative terms, 'nothing more than a convenient formula for disposing of the case’ (Prosser, Law of Torts [4th ed], § 43, p 267). In writing of the 'orbit of the duty’ Chief Judge Cardozo said '[t]he range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury’ (Palsgraf v Long Is. R. R. Co., 248 NY 339 , 345). So it is with proximate cause and foreseeability”. Here, then, the proximate cause was the advent of Dickens with his car and his epileptic seizure. The intervening cause was the placement of the kettle and Derdiarian’s proximity to it. At best—or worst—the role of Felix was similar to that of Kinney in Ventricelli, and was not the proximate cause of the freakish accident that occurred (see Martinez v Lazaroff, 66 AD2d 874 ).