ARTICLE ID 34285
$________ - FAILURE TO PROPERLY TRIM TREE LIMB NEAR OVERHEAD HIGH VOLTAGE WIRES - ELECTRICAL BURNS - AMPUTATION OF NON-DOMINANT ARM AND SEVERE BUTTOCK AND HEEL BURNS TO PLAINTIFF CONTACTING WIRES AFTER HOST VEHICLE STOPPED AT SCENE.
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 friends 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 Eds 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-Eds 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 plaintiffs 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
defendants 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 plaintiffs version should not
be believed. The defendant established that the plaintiff and his
friend were celebrating the birth of the friends 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 plaintiffs 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
plaintiffs friends 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 plaintiffs 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 plaintiffs 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 plaintiffs physician
contended that such discomfort will continue permanently. The
expert also maintained that the plaintiffs complaints of phantom
pain will continue permanently. The plaintiffs 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 plaintiffs 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 plaintiffs 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 plaintiffs 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-
Eds motion for indemnification from the tree trimming company
under its contract was granted.
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