51 N.Y.2d 308, 414 N.E.2d 666. 434 N.Y.S.2d 166.
In the fall of 1973 defendant Felix Contracting Corporation was performing a contract to install an underground gas main in the City of Mount Vernon for defendant Con Edison.1 Bayside Pipe Coaters, plaintiff Harold Derdiarian’s employer, was engaged as a subcontractor to seal the gas main.2
On the afternoon of November 21, 1973, defendant James Dickens suffered an epileptic seizure and lost consciousness, allowing his vehicle to careen into the work site and strike plaintiff with such force as to throw him into the air.3 When plaintiff landed, he was splattered over his face, head and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile.4 The enamel was used in connection with sealing the gas main.5 Although plaintiff’s body ignited into a fire ball, he miraculously survived the incident.6
At the site on Oak Street, a two-lane east-west roadway, the excavation was located in the eastbound lane.7 When plaintiff arrived on the site, he was instructed by Felix’ foreman to park his truck on the west side of the excavation, parallel to the curb, resulting in a gap of some 4½ feet between the side of the truck and the curb line.8 Derdiarian testified that he made a request to park his truck on the east side of the hole, so he could set up the kettle away from the oncoming eastbound traffic, but the Felix foreman instructed him to leave his truck where it was, and plaintiff then put the kettle near the curb, on the west side of the excavation.9
Plaintiff called as a witness Lawrence Lawton, an expert in traffic safety, who testified that the usual and accepted method of safeguarding the workers is to erect a barrier around the excavation that would cover the entire width.10 He also stated that there should have been two flagmen present, rather than one, and that warning signs should have been posted.11 Following receipt of the evidence, the trial court charged the jury that it could consider, as some evidence of negligence, the violation of a Mount Vernon ordinance imposing upon a construction permittee safety duties to erect suitable barricades and designate flagmen to direct traffic, and that Con Ed was the permittee and by contract Felix assumed any obligations under this ordinance that Con Ed had.12 The jury found for plaintiff, apportioning liability at 55% for Felix, 35% for Dickens and 10% for Con Ed.13 Supreme Court, Queens County, rendered an order, upon a jury verdict, in favor of plaintiffs on the issue of liability.14 The Appellate Division, with one dissent, affirmed, and granted defendant Felix Contracting Corporation leave to appeal to this court upon a certified question.15
Whether plaintiffs failed to establish as a matter of law that the contractor’s inadequate safety precautions on the work site were the proximate cause of the accident?16
Proximate cause questions are typically reserved for the jury after proper instructions from the court. Only in clear cases where the facts allow but one conclusion may a court decide the issue as a matter of law by finding an intervening superseding cause.17
No. Felix Contracting Corporation did not provide a barrier covering the full width of the excavation on Oak Street or the recommended number of flagmen.18 The traffic safety expert testified that these measures were the usual and accepted method to protect workers from oncoming traffic.19 The jury could therefore conclude that the inadequate precautions were a substantial cause of the plaintiff's being struck and burned by the enamel.20
The plaintiffs succeeded in establishing the proximate cause of the accident through the contractor's inadequate safety precautions.21
Whether the driver’s epileptic seizure and resulting loss of vehicle control constituted a superseding cause that broke the causal nexus between the contractor’s conduct and the plaintiff’s injuries?22
An intervening act by a third person does not automatically sever the causal connection, and liability remains if the intervening act is a normal or foreseeable consequence of the defendant's negligence, particularly when the risk of that act is the very risk that made the defendant negligent.23
No. The risk created by Felix's inadequate barriers was precisely that a driver might lose control and enter the site, whether through ordinary negligence or an epileptic seizure.24 The facts show that Dickens suffered the seizure and his vehicle crashed through the single barricade, striking the plaintiff.25 Because this type of occurrence was the foreseeable hazard, it does not qualify as a superseding cause.26
The driver’s epileptic seizure and resulting loss of vehicle control did not constitute a superseding cause breaking the causal nexus.27
Whether the trial court erred in charging the jury that violation of the Mount Vernon ordinance could be considered as some evidence of negligence?28
To preserve a claim of error in a jury instruction for appellate review, a party must make a specific objection at trial that alerts the court to the particular ground now advanced on appeal.29
No. Felix objected at trial only to the portion of the charge stating that the company had assumed Con Ed's obligations under the ordinance by contract.30 The argument that the ordinance protected only the general public and not site workers was never presented to the trial court and therefore cannot be considered.31
The trial court did not err in a manner that is reviewable on appeal regarding the ordinance charge.32
Whether Felix Contracting Corporation was contractually obligated to indemnify Con Edison even though Con Edison itself was found negligent?33
Contractual indemnification obligations may be enforced even when the indemnitee bears some degree of negligence, provided the contract so provides.34
Yes. Although the jury apportioned liability at 55% for Felix, 35% for Dickens and 10% for Con Ed, the record supports the conclusion that Felix remained bound by its contractual duty to indemnify Con Edison.35 The court perceived no error in enforcing that obligation even though Con Edison itself was found to be negligent.36
Felix Contracting Corporation remained contractually obligated to indemnify Con Edison despite Con Edison's negligence.37