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New York County

This was an action involving a plaintiff, age 22 at the time of the incident and 29 at trial, in which the plaintiff contended that as a result of the negligence of the defendant Con Ed, which failed to properly inspect and maintain its wires, and that of and its tree trimming contractor, who failed to sufficiently trim a tree branch next to its overhead high voltage cable, the branch commenced rubbing against the wire, causing it to break and fall to the ground. The plaintiff contended that he suffered the amputation of his left, non-dominant arm and significant burns to the buttocks and heels when the wire allegedly jumped 4-5 feet from the ground and contacted his arm.

The plaintiff related that he was a passenger in his friend’s car and that they were driving home at approximately 4:30 a.m. when they observed a glowing object in the middle of the roadway. The plaintiff contended that they initially, mistakenly believed that the glowing object was a flare, that they stopped because they thought that an auto accident might have occurred, and that they then ventured towards the glowing object. The plaintiff maintained that when he approached, the wire suddenly jumped and struck him in the arm, causing the injuries. The plaintiff contended Con Ed’s investigation had revealed that the wire fell because of contact with the tree branch. The plaintiff presented an expert electrical engineer who maintained that the current was conducted from the partially insulated wire through the tree, causing high temperatures which resulted in the insulating material melting and the wire breaking and falling. The expert contended that although the branch would not normally conduct electricity, the increased level of sap during the springtime period in which the accident occurred would enable the wood to conduct the electricity and cause such increase in temperature.

The plaintiff contended that Con-Ed’s specs provided that the branch should be sufficiently trimmed to keep it removed from the wire for at least a two year period. The plaintiff contended that the accident occurred some 14 months after the prior trimming and maintained that it was clear that the defendant tree trimming contractor had failed to adequately perform its task. The plaintiff further contended that Con Ed had provided a supervisor who observed the work being performed and maintained that this supervisor should have ascertained that an insufficient amount of branch was being cut. The defendant utility maintained that the supervisor was present for primarily fiscal reasons, including ensuring that the correct number of workers were present, and indicating that it paid the defendant contractor by the man-hours and that the supervisor should not be expected to oversee the work performed by the specialists. The tree trimming company countered that the contract required day-to-day supervision of the actual work and maintained that the supervisor had, in actuality, provided extensive oversight of the work.

The plaintiff further contended that utility should have conducted additional inspections to ascertain if a hazard from branches was imminent. The defendant tree trimming company contended there was a spring snowstorm approximately six weeks earlier and severe wind and thunderstorms during the two day period preceding the accident and maintained that such events could well have resulted in damage to the tree limb, causing it to break and come in contact with the wire, The plaintiff countered through photographs taken by Con Ed and the plaintiff contended that the jury could observe that the tree limbs had grown very close to the wire, arguing that irrespective of any inclement weather, it would not have come in contact with the wire had the limb been trimmed sufficiently far from the wire.

The tree trimming company contended that Con Ed vigorously supervised the work because its supervisor was very thorough, that it had cut the branches within the specifications provided, and maintained that the very wet weather over the past year could well have resulted in unusually rapid growth of the branch.

The plaintiff’s expert electrical engineer contended that the combination of the voltage and the magnetic fields on the ground could well caused the wire to jump and strike the plaintiff. The defendant’s expert electrical engineer contended that there was insufficient voltage in the wire to cause it to jump 4-5 feet, and the defendants maintained the plaintiff’s version should not be believed. The defendant established that the plaintiff and his friend were celebrating the birth of the friend’s child and had been drinking since 10:00 p.m., contending that they were probably intoxicated. The defendant contended that it was likely that the plaintiff had approached the wire in an inebriated state and either picked it up with his hand, or attempted to move it with a stick, resulting in it contacting him and burning him.

The defendant also maintained that the plaintiff’s contention that they encountered the wire in the middle of the roadway should be rejected, and that it was, in actuality, on the shoulder of the road. The defendant utility introduced photographs taken shortly after the accident which depicted burn marks in the shoulder and an absence of any such marks on the roadway itself. The defendant contended that it was obvious that the plaintiff and his friend had needlessly stopped upon seeing the wire on the shoulder while intoxicated and had, thereby, caused the accident. The defendants also contended that the plaintiff’s friend’s testimony supporting his version should not be believed, establishing that he was a convicted felon. The plaintiff, who did not dispute that he had been drinking, denied that he was intoxicated. The plaintiff further denied that he had attempted to grasp the wire with his hand or contact it with a stick. The plaintiff’s arm had been amputated in the hospital and the plaintiff also pointed to a medical illustration of the amputated limb prepared in the hospital which the plaintiff contended reflected a relatively significant portion of the palm was not burned. The plaintiff contended that in view of this evidence, it was clear that he had not attempted to pick up the wire.

The plaintiff’s neuropsychiatrist related that the non-dominant left arm was amputated slightly below the elbow and the plaintiff contended that he also suffered severe burns to the buttocks and heels requiring a skin graft from the leg. The plaintiff contended that he experienced extensive pain and suffering during his recuperation and that he continues to suffer discomfort in the heels and buttocks which is heightened upon walking, standing or sitting for long periods of time. The plaintiff’s physician contended that such discomfort will continue permanently. The expert also maintained that the plaintiff’s complaints of phantom pain will continue permanently. The plaintiff’s neuropsychiatrist further contended that the plaintiff suffered a chronic depression and loss of self esteem which will remain permanently.

The plaintiff further maintained that he was working as a bartender at the time of the accident, earning approximately $________ per week, and maintained that he obviously cannot continue this position. The plaintiff further contended that he had not completed high school, and the plaintiff’s vocational expert contended that in view of his limited education and his inability to sit or stand for long periods, it is clear that he is permanently unemployable.

The defendant denied that the plaintiff’s contentions that he was employed at the time of the accident should be accepted, pointing to the absence of any documentation of such employment. The defendant further contended that the plaintiff had a very spotty work history and had not kept jobs for long periods of time. The plaintiff maintained that the prior work history was associated with his youthful age of 22 at the time, and contended that it was likely that his work record would have improved as he became older if he had not been injured. The plaintiff’s economist offered projections of future lost wages which ranged from $________ based upon the minimum wage, $________ based upon working as a bartender at $________ per week, and $________ based upon $________ per week earnings as a bartender. The jury found the defendant utility 36% liable, the tree trimming contractor 40% liable, and the plaintiff 24% comparatively negligent. They then rendered gross awards of $________, including $________ for past pain and suffering, $________ for past medical expenses, $________ future medical expenses, $________ for past lost earnings, $________ for future pain and suffering over a 44 year life expectancy and $________ for future lost earnings over a 35 year work-life expectancy, which awards were reduced in accordance with the finding of comparative negligence. The defendant Con- Ed’s motion for indemnification from the tree trimming company under its contract was granted. Plaintiff’s neuropsychiatrist: Sidney M. Cohen from Columbia Presbyterian Hosp. Plaintiff’s vocational rehabilitation expert: Joseph Mosko from Manhattan.

Plaintiff’s expert electrical engineer: Norman Wesler from Amityville. Tormey vs. Con Ed, et al. Index no. ________/86; Judge Shirley Fingerhood, 12-89. Attorneys for plaintiff: Lawrence B.

Goldhirsch and Abraham Fuchsberg of Fuchsberg & Fuchsberg in Manhattan; Attorney for defendant Con Ed: Ronald Rock of Richard W. Babinecz in Manhattan; Attorney for defendant tree trimming contractor: Lawrence Hoffman of Townley & Updike in Manhattan.

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