| Neissel v Rensselaer Polytechnic Inst. |
| 2008 NY Slip Op 06514 [54 AD3d 446] |
| August 7, 2008 |
| Appellate Division, Third Department |
| Jordan Neissel, Respondent, v Rensselaer Polytechnic Institute etal., Appellants, et al., Defendant. |
—[*1] Pennock, Breedlove & Noli, L.L.P., Clifton Park (Tracy M. Larocque of counsel), for HighVoltage Electric Service, Inc., appellant. Meiselman, Denlea, Packman, Carton & Eberz, P.C., White Plains (Myra I. Packman ofcounsel), for respondent.
Carpinello, J. Appeals (1) from an order of the Supreme Court (Egan, Jr., J.), enteredNovember 30, 2006 in Columbia County, which, among other things, partially denied themotions of defendants Rensselaer Polytechnic Institute and High Voltage Electric Service, Inc.for summary judgment dismissing the complaint and cross claims against them, (2) from an orderof said court, entered July 20, 2007 in Columbia County, which partially denied the motions ofsaid defendants to, among other things, set aside the verdict rendered in favor of plaintiff, and (3)from a judgment and amended judgment of said court, entered September 25, 2007 andNovember 26, 2007 in Columbia County, upon a verdict rendered in favor of plaintiff.
On the morning of May 27, 2004, a circuit breaker tripped at an above-ground substation onthe campus of defendant Rensselaer Polytechnic Institute (hereinafter RPI) and power to theMaterials Research Center (hereinafter MRC) went out. Kevin Surman, RPI's [*2]electric shop supervisor, and two of his electricians, Timothy Hiltand Bruce Galbraith, investigated. No apparent cause for the outage was discovered, the circuitbreaker was closed and power was restored. The breaker tripped again approximately 45 minuteslater.
In the meantime, Surman had contacted defendant High Voltage Electric Service, Inc., withwhom RPI had an agreement to provide repair services for its high voltage equipment. RPI staffadvised High Voltage engineer Gus Mininberg that there appeared to be a fault in the "C phase"of the preferred voltage feed somewhere between a main substation and the switchgear in thebasement of the MRC. Mininberg returned to his shop to retrieve a testing device known as a"thumper" to assist in determining the location of the fault and also contacted Martin Scher ofdefendant M. Scher & Son, Inc. and requested that he send two people to help locate the fault andpossibly perform a cable splice. Scher sent plaintiff, a journeyman high voltage electrician, andplaintiff's father, Russell Neissel, an experienced high voltage electrician.
Once the thumper was set up, RPI electricians were stationed at various points between thesubstation and the switchgear to listen for the snapping sound made by the thumper. Uponarrival, plaintiff was sent to the darkened basement of the MRC to assist. At that time, the outermetal door to the preferred switchgear, which has a key lock, was open.[FN1]While there, Mininberg asked plaintiff to reconnect the termination points in the preferred feed,which was necessary in order to continue to test for the fault in that feed. Plaintiff askedMininberg if it was safe to enter the metal cabinet where the work was to be performed.Mininberg assured plaintiff that it was safe to proceed and actually placed his hands on the cablesinside the cabinet to prove so. Plaintiff reconnected the cables and then left the basement, atwhich point, according to plaintiff, the outer door to the preferred switchgear, referred to as the"right cabinet," was open.
In the interim, and unbeknownst to plaintiff, RPI officials had decided that power needed tobe restored to the freezers, refrigerators and incubators contained within the MRC in order topreserve the integrity of various projects and experiments, and thus the MRC was reenergized viaan alternate feed. To this end, Mininberg and Surman disabled the automatic transfer switch inthe middle cabinet so that power could be supplied to the building only via the alternate feed andthereafter closed and locked the preferred switchgear. Hilt and Galbraith reenergized thebuilding, the lights came back on and various alarms sounded.
Meanwhile, the electricians on site then reconvened at a manhole located between thesubstation and the switchgear at which time another thump test was performed indicating that thefault in the C phase existed somewhere between the manhole and the junction box adjacent to theswitchgear. Mininberg then sent plaintiff and his father to the basement to identify and cut the C[*3]phase cable in the junction box. According to Mininberg, heintended for one of them to wiggle the C phase cable in the junction box while the other peeredthrough the window of the locked outer door of the switchgear to observe any correspondingmovement. Simultaneously, Surman sent Hilt and Galbraith to the basement to perform the sametask. Hilt and Galbraith arrived first and Hilt used his key to open the outer door to the rightcabinet.
When plaintiff and his father thereafter arrived in the basement, plaintiff observed that thelights were on and that transformers were humming, indicating some sort of power source hadbeen activated. However, finding the outer door to the preferred switchgear open, plaintiffassumed that the switchgear was still deenergized and proceeded to attempt to identify the Cphase cable.[FN2]As plaintiff attempted to tug on the cable in the switchgear, he came into contact with the openblades and was shocked and severely burned.
As now relevant, plaintiff commenced this action against RPI and High Voltage allegingnegligence, violations of Labor Law §§ 200 and 241 (6) and the maintenance of aninherently dangerous condition. Following joinder of issue, discovery and only partiallysuccessful motions for summary judgment by RPI and High Voltage, a jury trial ensued. The juryreturned a verdict finding plaintiff, RPI and High Voltage negligent and apportioning liability at60% to RPI, 20% to High Voltage and 20% to plaintiff. It awarded $600,000 for past pain andsuffering, $900,000 for future medical expenses and $3 million for future pain and suffering. RPIand High Voltage each unsuccessfully moved for judgment notwithstanding the verdict and to setaside the verdict as against the weight of the evidence and RPI unsuccessfully moved forjudgment against High Voltage on its contractual indemnification claim. Supreme Court did,however, order a new trial on the issue of future medical expenses unless plaintiff stipulated tothe reduced sum of $51,000, which he apparently did. RPI and High Voltage (hereinaftercollectively referred to as defendants) appeal from the order partially denying their motions forsummary judgment,[FN3]the order partially denying their posttrial motions, and the judgment and amended judgmententered on the verdict.
RPI claims that Supreme Court impermissibly curtailed its questioning of plaintiff and hisfather at trial, thereby severely prejudicing its defense. We are unpersuaded. Trial courts arevested with considerable discretion in supervising the extent of cross-examination (seeCassell Vacation Homes v Commercial Union Ins. Cos., 157 AD2d 700, 701 [1990]) and,based upon [*4]our review of the record, we perceive no abuse ofthat discretion here. Without detailing each of the sustained objections cited by RPI, suffice it tosay that we are satisfied that RPI was able to effectively cross-examine plaintiff and his fatherthereby challenging their credibility and advancing its own defense.
Nor do we find merit to RPI's argument that Supreme Court erred in denying its requests tocharge. RPI's requests misstated the law inasmuch as they mandated a verdict in favor of RPI inthe event that the jury determined that plaintiff failed to either heed certain warnings, utilize aparticular safety device or follow certain protocols. Plainly, the jury could and, as will bediscussed, did determine that notwithstanding plaintiff's own culpable conduct, RPI's negligenceremained a proximate cause of his injuries.
As to the jury's verdict, we reject defendants' contentions that Supreme Court erred in failingto set aside the verdict because it was either legally insufficient or against the weight of theevidence. "[B]efore a court may set aside a verdict unsupported by legally sufficient evidence andgrant judgment as a matter of law, it must determine that there is simply no valid line ofreasoning and permissible inferences which could possibly lead rational [people] to theconclusion reached by the jury on the basis of the evidence presented at trial" (Lawrence v Capital Care Med. Group,LLC, 14 AD3d 833, 834 [2005] [internal quotation marks and citation omitted])."Where legally sufficient evidence exists, the verdict may still be set aside as against the weightof the evidence if it is determined that the evidence so preponderated in favor of the losing partythat it could not have been reached on any fair interpretation of it" (Arthur Glick Leasing, Inc. v William J.Petzold, Inc., 51 AD3d 1114, 1115-1116 [2008] [internal quotation marks and citationomitted]; see Martin v Clark, 47AD3d 981, 982 [2008]). Based upon our review of the record, we conclude that neitherstandard has been met.
In challenging the jury's verdict, defendants argue that plaintiff's conduct in entering theswitchgear cabinet on that second occasion—specifically without verifying that it wasdeenergized and/or wearing protective gear—constituted a superceding or interveningcause sufficient to break any causal connection between their alleged negligence and plaintiff'sresulting injuries. We cannot agree. To be sure, as defendants observe, when plaintiff returned tothe basement to identify and cut the C phase cable, the lights were on and the transformers werehumming signaling that there was some sort of power source which had been activated in theinterim. In this regard, plaintiff candidly testified that he was aware that there was an alternatefeed entering the building and realized, having read a warning sign on the inner grate door, thatthere was a possibility of "backfeed" in the system.[FN4]Plaintiff also had available to him certain safety gear, including a tic tracer, which would havealerted him to the energy lurking in the preferred switchgear, and protective clothing, neither ofwhich he used prior to attempting to identify the C phase cable.
However, no one from either RPI or High Voltage advised plaintiff that the MRC had [*5]been reenergized via the alternate feed. Specifically, neitherMininberg, from whom plaintiff had previously sought reassurance regarding the electrical statusof the switchgear, nor Hilt, who was instrumental in reenergizing the MRC, uttered a word toplaintiff on this subject. Further, in what can only be described as a complete lack ofcoordination and breakdown in communication on the part of defendants, Mininberg sentplaintiff and Neissel to the basement to perform the exact same task Surman simultaneously sentHilt and Galbraith to execute, i.e., identifying and cutting the C phase cable in the junction box.Hilt and Galbraith arrived first, and Hilt used his key to unlock the outer door to the rightcabinet.[FN5]Hilt testified that when plaintiff and his father arrived in the basement, plaintiff's father pulled onvarious cables in the junction box while plaintiff attempted to peer through the inner grate doorto observe any movement in the switchgear. When this proved unsuccessful, both Hilt andTimothy Beasock, another electrician present at the time of plaintiff's accident, testified thatplaintiff used a pair of channel locks to remove the bolts securing the inner grate door, openedthe door and reached into the right cabinet. In an effort to get a better grip on the cables, plaintiffreached further into the cabinet and came into contact with the open blades of the switchgear,resulting in his being severely burned.
While there was some dispute at trial as to whether plaintiff was given specific instructionsas to how he should go about identifying the C phase cable and, further, whether it was evenpossible to do so without opening the inner grate door in the right cabinet, there is no dispute thatHilt, fully aware that the MRC had been reenergized via the alternate feed, stood by silently asplaintiff unbolted the inner grate door and reached into the switchgear. Despite the fact that Hiltplainly was aware that portions of the right cabinet could be energized—indeed, he andGalbraith paused before opening the inner grate door in order to retrieve a tic tracer to ascertainthe status of the cabinet—he made no effort to warn plaintiff of the hazard containedtherein.
Plaintiff's decision to enter the switchgear in order to identify the C phase cable may havebeen ill advised and/or careless, but this simply is not a case where "the plaintiff recognized thedanger and chose to disregard it, thus rendering the plaintiff's conduct the sole proximate cause"of the injuries sustained (Skibinski v Salvation Army, 307 AD2d 427, 428 [2003]; accord Nash v Fitzgerald, 14 AD3d850, 852 [2005]). Plaintiff repeatedly testified that the open outer door signaled to him thatthe switchgear was as he had left it, i.e., deenergized, and he fully expected that had the cabinetbeen reenergized, someone with knowledge of that event, i.e., Mininberg or Hilt, would have toldhim so (see n 5, supra). Moreover, despite the fact that plaintiff admittedly hadworked on numerous switchgears in the past and was aware of the [*6]possibility of backfeed, the record reveals that each switchgear isdifferent and, more to the point, that plaintiff did not fully appreciate how this particularswitchgear, which Beasock agreed could be described as something of a "dinosaur," worked.Under such circumstances, plaintiff's conduct cannot be said to have been so extraordinary as torender his actions the sole proximate cause of the accident. We therefore conclude that the jury'sverdict is neither legally insufficient nor against the weight of the evidence. To the contrary,given the totality of the evidence, the jury's apportionment of liability is supported by the recordand will not be disturbed.
Turning to the issue of damages, despite High Voltage's protestations to the contrary, wehave no quarrel with the reduced award of $51,000 for future medical expenses. While neitherplaintiff's plastic surgeon nor his treating psychologist could precisely state how many additionalsurgeries or treatment sessions he would need, the sum awarded is not based solely uponspeculation and does not exceed the amount supported by the evidence (compare Petrilli v Federated Dept. Stores,Inc., 40 AD3d 1339, 1344 [2007]). Accordingly, we discern no basis for disturbing thisportion of the award.
We reach a similar conclusion regarding the $3 million awarded for future pain andsuffering, reduced by 20% due to the jury's apportionment of fault to plaintiff. "An award forpain and suffering is inherently a subjective inquiry, not subject to precise quantification, andgenerally presents a question of fact for the jury" (id. at 1343 [citations omitted]).Plaintiff, who was 24 years old at the time of the accident, sustained third, fourth and fifth degreeburns to portions of his arms, torso and right hand.[FN6]Although only approximately 7% of plaintiff's external skin was damaged, he sustainedsignificant muscle loss, which cannot be regained. Similarly, plaintiff lacks normal strength,feeling and sensation in his arms due to the muscle and nerve damage and, because plaintiff hasno oil or sweat glands in the areas where skin grafts were performed, the skin cracks, dries and isunable to regulate heat. Additionally, plaintiff's treating psychologist testified at length regardingthe psychological symptoms suffered by him, including post-traumatic stress disorder,flashbacks, nightmares, social isolation and panic attacks. In light of such testimony, we cannotsay that the jury's award in this regard "deviates materially from what would be reasonablecompensation" (CPLR 5501 [c]).
Defendant's remaining contentions, including the claim that summary judgment should havebeen awarded to them and RPI's specific claim that it is entitled to contractual indemnification,have been examined and found to be lacking in merit.
Peters, J.P., Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the appeal from theorder entered November 30, 2006 is dismissed. Ordered that the order entered July 20, 2007, thejudgment and the amended judgment are affirmed, with costs.
Footnote 1: The status of the inner door wasthe source of some dispute. Mininberg testified that both the outer and the inner door of thisswitchgear were open when plaintiff arrived in the basement the first time. Plaintiff's testimonyon this point was conflicting, stating that it was his recollection that the inner door was boltedshut when he first saw it and, after ascertaining that it was safe to enter, he was the one whoopened the inner grate but he acknowledged, in light of testimony to the contrary, that it waspossible that the inner door already was open when he arrived.
Footnote 2: Although plaintiff initiallybelieved that the inner grate to the switchgear also was open when he arrived in the basement thesecond time, he acknowledged, in light of the testimony offered by other witnesses, that he mayhave unbolted the inner grate.
Footnote 3: "[A]s the right to appeal from anonfinal order terminates upon the entry of a final judgment" (State of New York v Joseph, 29 AD3d1233, 1234 n [2006], lv denied 7 NY3d 711 [2006]; see Morin v Morin, 38 AD3d 953,954 n 2 [2007]), we must dismiss defendants' appeal from the order denying their motions forsummary judgment. Their appeals from the judgment and amended judgment, however, bringthis order up for review (see CPLR 5501 [a] [1]).
Footnote 4: The potential for backfeed,which Mininberg testified is a misnomer, exists because the switchgears are tied together via acommon bus bar; hence, if either switchgear is energized, there is energy in the common bus bar.Thus, if the alternate feed in the left cabinet is energized, the possibility exists that portions of theright cabinet remain energized.
Footnote 5: It is undisputed that neitherplaintiff nor his father possessed or had access to the key that unlocked the outer door to theswitchgear. Accordingly, had Hilt not unlocked the door, plaintiff could not have entered theswitchgear to any extent. Indeed, both plaintiff and his father testified that had they found theouter door to the switchgear locked, they would have realized that there had been a change in thestatus of the switchgear and would have consulted with Mininberg before proceeding.Specifically, plaintiff and his father unequivocally testified that they would never enter a lockedswitchgear, as a locked outer door was a clear indication of an electrical hazard.
Footnote 6: Fourth degree burns extenddown to the fatty tissue, while fifth degree burns extend to the bone.