dissents and votes to reverse the judgment insofar as appealed from and to dismiss the complaint as against defendants Felix Contracting Corp. and Consolidated Edison Company of New York, and to dismiss the appeal from the order as academic, with the following memorandum: On the issues of negligence, foreseeability and proximate cause, I would reverse the interlocutory liability judgment against defendants Felix and Con Ed and dismiss the complaint as against them, as a matter of law. Except as noted hereafter, I adopt the fact situation as outlined in the majority memorandum. The fact pattern as developed by the testimony was more bizarre than that in Palsgraf v Long Is. R. R. Co. (248 NY 339). As there noted (p 344), "The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension”. From the picture before us it is difficult to imagine how the manner of this subject accident could have been within the range of apprehension. As well might we look for a helicopter to pancake on the kettle and scatter its contents as to foresee what did actually happen. By its verdict the jury found that Felix should have foreseen the general chain of events as follows: That—1. Plaintiff would not actually be working at the moment of the accident; and 2. If plaintiff had been working he would have seen the oncoming car as did the witness, Soares; and 3.* The tar kettle would be placed quite close to the sidewalk; and 4.* The tar kettle would be heated to 400 degrees Fahrenheit; and 5.* The tar kettle would be unattended at the moment of impact; and 6. James Dickens was an epileptic and knew that he was because he had blacked out on prior occasions, and *876was taking medication for his condition; and 7. Despite his infirmity, Dickens would be driving an automobile; and 8. Dickens knew of the work going forward and had successfully negotiated a westward passage through the construction site earlier in the day, and apparently thought he could return without mishap; and 9. Dickens would black out in the immediate vicinity of the construction area; and 10. When Dickens blacked out, the flagman should somehow have stopped the Dickens’ car, wherever it was at the moment; and 11. Dickens would completely lose control of his car; and 12. The Dickens’ car, out of control, would knock down the western barricades and proceed in an easterly direction partly on the sidewalk area; and 13. * The Dickens’ car would strike the tar kettle; and 14.* The contents of the kettle would splatter over and injure plaintiff, even though Soares, plaintiff’s fellow employee, escaped unscathed from the scene. I am aware that "The exact occurrence or precise injury need not have been foreseeable; but the results of a negligent act must be not merely possible but probable” (1 PJI 2:12). However, in the light of the chain of events above established, this was merely an unforeseen and unforeseeable freak accident. The odds against such a happening are astronomical. By parity of reasoning, the fact that the accident did happen does not, in and of itself, establish that it was foreseeable. Ventricelli v Kinney System Rent A Car (45 NY2d 950), a case recently decided on the question of foreseeability, is in point. The facts in Ventricelli are simple. Plaintiff had rented an automobile with a defective trunk lid. He went to repeated efforts to keep it closed. While he was doing so on one occasion he was struck from behind. As the court noted (p 952): "That Kinney’s negligence in providing an automobile with a defective trunk lid would result in plaintiff’s repeated attempts to close the lid was reasonably foreseeable. Not 'foreseeable’, however, was the collision between vehicles both parked a brief interval before the accident. Plaintiff was standing in a relatively 'safe’ place, a parking space, not in an actively traveled lane. He might well have been there independent of any negligence of Kinney, as, for example, if he were loading or unloading the trunk. Under these circumstances, to hold the accident a foreseeable consequence of Kinney’s negligence is to stretch the concept of foreseeability beyond acceptable limits (see Prosser, Law of' Torts [4th ed], pp 267-270; Restatement, Torts 2d, § 435, subd 2).” Assuming, arguendo, that Felix was negligent in the physical set up at and near the excavation, "to hold the accident a foreseeable consequence” of Felix’ negligence "is to stretch the concept of foreseeability beyond acceptable limits”. Derdiarian equates the physical circumstances of Lopes v Adams (37 AD2d 610, affd 30 NY2d 499) with those in the instant action. Lopes, however, is distinguishable on its own facts. The locale of the Lopes case was Van Wyck Expressway, a six-lane express highway. The lane in which the plaintiff was working was completely unprotected—no barrier—no barricades—no anything. As against' this we have Oak Street in Mount Vernon—a secondary, 30-foot-wide highway—barricaded to warn persons on the street—a flagman waving a red flag and an excavation some 70 feet east from the barricades. The defendant in Lopes may have had an ill-functioning steering mechanism, but there is no mention of any brake malfunction—nor is there anything to indicate that the driver lost consciousness before the happening of the episode. Derdiarian’s testimony is suspect in more than one respect. His implication that he heard the screeching of brakes does not square with the facts. By that time Dickens had already blacked out; and the erratic course of his car is proof positive that he had lost control of it. Moreover, the circumstance that plaintiff had been "ordered” to park his truck west of the *877excavation because time was running out, borders on the incredible. From 11:30 a.m. when Derdiarian arrived on the scene until about 1:30 or 2:00 p.m. when the accident occurred, not one lick of work was done by him in the excavation. During this period plaintiff was lunching at the firehouse and fraternizing with the houseman. He had plenty of time and opportunity, if so minded, to move the truck to any position he desired. Therefore, his statement appears to be made out of whole cloth, and perhaps tailored for the occasion. Even if we accept as a fact that he was told to park his truck in a certain place nothing was said about the kettle. Three witnesses— Soares, Miller the flagman and Mrs. Cortazzo the school crossing guard—all placed the kettle only two feet from the southwest corner of the hole before the accident. When we consider how small the excavation was—12 feet by 15 feet—he could easily have moved the kettle to a position east of and adjacent to the hole and on a line with his truck without causing himself or his helper the slightest inconvenience. Had he done so he would not have been burned. Certainly the plates which covered the opening during nonworking hours would not have presented a problem. As a matter of law and more to the point in the circumstances of this case is the statement that: "This court has consistently held that the negligence complained of must have caused the occurrence of the accident from which the injuries flow” (Rivera v City of New York, 11 NY2d 856, 857). There a child was severely burned when he fell into a bathtub full of hot water while standing on its edge trying to reach a light cord. In reversing a judgment for the plaintiff and dismissing the complaint, the court went on to note (p 857) that "The hot water created the specific injuries for which damages were sought * * * but it did not cause the intervening act which was not foreseeable.” The accident was caused by the slipping of a wet boot while the child balanced on the curved edge of the bathtub. Surely, at bar, where Felix had nothing whatever to do with the placement of the kettle and could not have dreamed that Dickens would appear out of the blue as he did, it (Felix) did not cause the "intervening act which was not foreseeable” and hence should not have been held responsible to Derdiarian. On the issue of proximate cause which in this case is closely allied to foreseeability, I return to Ventricelli where the terms are used almost interchangeably (45 NY2d 950, 951-952, supra): "Proximate cause and foreseeability are relative terms, 'nothing more than a convenient formula for disposing of the case’ (Prosser, Law of Torts [4th ed], § 43, p 267). In writing of the 'orbit of the duty’ Chief Judge Cardozo said '[t]he range of reasonable apprehension is at times a question for the court, and at times, if varying inferences are possible, a question for the jury’ (Palsgraf v Long Is. R. R. Co., 248 NY 339, 345). So it is with proximate cause and foreseeability”. Here, then, the proximate cause was the advent of Dickens with his car and his epileptic seizure. The intervening cause was the placement of the kettle and Derdiarian’s proximity to it. At best—or worst—the role of Felix was similar to that of Kinney in Ventricelli, and was not the proximate cause of the freakish accident that occurred (see Martinez v Lazaroff, 66 AD2d 874).
No one ordered Derdiarian to place the kettle where he positioned it.