Haughton v. T & J Electrical Corp. , 765 N.Y.S.2d 664 ( 2003 )

Peters, J.

Appeal from an order of the Supreme Court (Canfield, J.), entered September 24, 2002 in Rensselaer County, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint.

Plaintiff Archebald C. Haughton, Jr. (hereinafter plaintiff), employed by third-party defendant, Hudson Valley Community College (hereinafter HVCC), as a building maintenance worker, was routinely assigned to perform electrical work due to his 28 years of prior work experience in this field. On the morning of July 24, 1997, plaintiff and a coworker were informed that there was a power outage affecting several campus buildings. While proceeding to the building that housed key campus electrical equipment, plaintiff noticed that one of three fuses on the high voltage pole carrying the 13,200 volt feeder line to the campus, a line owned and installed by defendant Niagara Mohawk Power Corporation (hereinafter NiMo), was blown. Upon his arrival at the building, plaintiff conferred with his superior, Eugene Groat, by telephone. Despite knowing that NiMo was already assembling a crew to respond to the power outage, Groat directed plaintiff to open several high voltage switches in order to cut power to the transformers.

Plaintiff used a key given to him by HVCC to unlock the door to the electrical room. He opened the switches on each of the transformers and unscrewed the panels securing each transformer cabinet. By that time, Groat and HVCC’s senior electrician, Charles Bogue, had arrived. Plaintiff was provided with an additional tool to remove both the on/off handle and the screws securing the primary switch gear cover. Plaintiff recalls being urged by Groat to get the power back on before classes commenced. Groat recalls Bogue dismissing the need to call defendant T & J Electrical Corporation, an electrical contractor that had recently performed maintenance work on the switching equipment, choosing instead to “handle it ourselves.”

Fully aware that NiMo had not yet arrived to shut off the main electrical feed that led into these cabinets, plaintiff was directed by both Groat and Bogue to begin work, aided only by a flashlight, in the dark and smoky room. Plaintiff began using a Simpson multimeter, provided by Bogue, to check the fuses. When one of the cabinets contained a notation, written in magic marker by Bogue, that it housed 13,200 volts of electricity, plaintiff refused to check the fuses therein. When plaintiff probed deep inside the next cabinet — the cabinet actually housing the main campus switch gear which received NiMo’s 13,200 volt feeder line — he was electrocuted, set on fire and thrown from the cabinet, causing severe and disfiguring injuries.

Plaintiff and his wife, derivatively, commenced this action against NiMo and T & J, alleging that they had breached a duty of care by failing to lock the primary switch gear cabinet and provide appropriate warnings. T & J thereafter commenced a third-party action against HVCC for indemnification. HVCC moved for summary judgment and defendants cross-moved for a dismissal of plaintiffs’ claims and any cross claims. Supreme Court granted defendants’ motions, thus rendering HVCC’s motion moot. On this appeal, plaintiffs contend that there are questions pertaining to defendants’ duty of care and whether the breach of that duty was a proximate cause of the accident.

Although ordinarily a question of fact, proximate cause can be determined, as a matter of law, where “the evidence conclusively establishes that there was an intervening act which was so extraordinary or far removed from the defendant’s conduct as to be unforeseeable” (Meseck v General Elec. Co., 195 AD2d 798, 800 [1993]; see Derdiarian v Felix Contr. Corp., 51 NY2d 308, 315 [1980]; Feeley v Citizens Telecom. Co. of N.Y., 298 AD2d 745, 746 [2002]; Decker v Forenta LP, 290 AD2d 925, 926 [2002]). Assuming, without deciding, that defendants owed and breached a duty of care to plaintiff, we conclude, upon these facts, that the conduct of Groat, Bogue and plaintiff together constituted an extraordinary intervening act as a matter of law. In reaching this conclusion, we recognize that plaintiff was not a licensed electrician. However, he described his 28 years of experience with a prior employer where he received promotions which led him from a starting grade electrician to a specialized electrician working with 42,000 volt equipment and control circuits. While there, he engaged in ongoing Occupational Safety and Health Act training and had biyearly refresher courses on the proper use of safety equipment. He adamantly testified that he would never work on high voltage equipment without using the full panoply of protective gear and detailed the curriculum of the year-long course he successfully completed on the National Electric Code.^* Plaintiff further stated that he was aware that the equipment at HVCC was high voltage and had even warned his coworker about its danger; plaintiff could not explain his failure to either obtain or insist on being provided with protective equipment. He further admitted that although he was unfamiliar with the Simpson multimeter provided by Bogue, he nonetheless acquiesced in the directive to use the equipment for testing.

In our view, Groat as the supervisor, Bogue as the senior electrician, and plaintiff as an experienced worker possessed the requisite skills and awareness of the specific risks involved in the tasks being performed (cf. Meseck v General Elec. Co., supra at 800). Their conduct constituted an unforeseeable intervening act, sufficient to break the causal chain, thus absolving defendants of any claimed liability (see Egan v A.J. Constr. Corp., 94 NY2d 839, 841 [1999]; Derdiarian v Felix Contr. Corp., supra at 308, 315; Nikolaus v State of New York, 129 AD2d 865, 866 [1987], appeal dismissed 70 NY2d 728 [1987], lv denied 70 NY2d 616 [1988]). For these reasons, we find the determination rendered to be proper.

Rose, J., concurs.

* He has since purchased the code book yearly to monitor his compliance.