Tryon v. Square D Co.

Carpinello, J.

(concurring in part and dissenting in part). We agree with the majority’s resolution of all issues on this appeal with only one exception, namely, its finding that Supreme Court properly denied the motion for summary judgment by defendant Niagara Mohawk Power Corporation. We therefore respectfully dissent on this issue alone. In our view, liability against Niagara Mohawk is limited by the doctrine of proximate cause.

While conflicting expert evidence has been submitted concerning the precise cause of the explosion, none of the conflict relates to the precise question of whether any act or omission on the part of Niagara Mohawk was a substantial factor in causing the accident. Several defendants, including Niagara Mohawk, submitted evidence that the sole cause of the explosion was plaintiff Thomas R. Vaughn’s misuse of a “multimeter” by improperly using the ohm probe to measure live voltage. Plaintiffs in both actions, on the other hand, submitted expert evidence that the multimeter’s defective design caused the accident. In either circumstance, however, there is no evidence that any alleged negligent conduct on the part of Niagara Mohawk was a proximate cause of the accident.

In moving for summary judgment against Niagara Mohawk, plaintiff Joan Tyron submitted the affidavit of an expert who opined that Niagara Mohawk was negligent in failing to maintain the proper voltage levels at the mill, in failing to properly design and maintain an electrical substation, and in suggesting or directing that Jack Sweet measure the electric power being supplied to the mill.* In opposition to Tryon’s motion for summary judgment and in support of its cross motion for the same relief, Niagara Mohawk submitted affidavits of its own expert who opined that none of the claimed negligent acts raised by Tryon can be causally connected to the happening of the accident. Particularly, with respect to allegations that Niagara Mohawk was negligent in failing to provide adequate *572voltage and/or timely and properly correct the low-voltage condition at the mill, Niagara Mohawk’s expert averred that the level of voltage on the day of the accident — high, low or fluctuating — had nothing to do with the explosion but merely presented the reason for testing to be performed. Indeed, this expert opined that low voltage, or even high voltage, can be safely tested and the fact that there was “a low voltage condition on the load side of the transformer bank at the Sweet Mill did not present an unsafe condition for testing. It is indeed a condition which is routinely tested.” Plaintiffs did not refute this opinion by offering any contradictory expert proof as to how high, low or fluctuating voltage could have caused the accident.

As to the allegation that Niagara Mohawk directed Sweet to measure electrical power on the afternoon of the accident, it should be noted that “[w]hether a breach of duty has occurred, of course, depends upon whether the resulting injury was a reasonably foreseeable consequence of the defendant[’s] conduct. Tf the defendant could not reasonably foresee any injury as the result of [its] act, or if [its] conduct was reasonable in the light of what * * * could [be] anticipate [d], there is no negligence, and no liability’ ” (Danielenko v Kinney Rent A Car, 57 NY2d 198, 204, quoting Prosser and Keeton, Torts § 43, at 250 [4th ed]). The tape-recorded conversation between Niagara Mohawk Regional Control Supervisor John Marinello and Sweet on the day of the accident indicates that it was not foreseeable that Sweet himself would do anything other than turn on the computer at the mill to ascertain if it was operational. Moreover, it was not foreseeable that Sweet would direct anyone other than a Niagara Mohawk employee or a mill electrician to test the voltage or that any third party conducting the test would either misuse equipment — because of inexperience, simple negligence or lack qf proper warnings — or use defective equipment thereby causing an explosion. Thus, we discern no negligent act or omission on the part of Niagara Mohawk in the first instance.

In any event, “[e]vidence of negligence is not enough by itself to establish liability. It must also be proved that the negligence was the cause of the event which produced the harm sustained by one who brings the complaint” (Sheehan v City of New York, 40 NY2d 496, 501). While it certainly can be said that “but for” the mill’s low voltage this tragic accident may not have occurred, this does not constitute legally sufficient proximate cause. As noted by the Court of Appeals, “ ‘because of convenience, of public policy, of a rough sense of justice, the law *573arbitrarily declines to trace a series of events beyond a certain point’ ” (Ventricelli v Kinney Sys. Rent A Car, 45 NY2d 950, 952, quoting Palsgraf v Long Is. R. R. Co., 248 NY 339, 352 [Andrews, J., dissenting]).

Although issues of foreseeability and proximate cause are usually reserved for jury determination, the undisputed relevant facts in this case establish no causal connection between any of the alleged acts of negligence asserted against Niagara Mohawk and the occurrence of the accident. Rather, the low-voltage condition that existed on the premises, as well as the phone conversation between Marinello and Sweet, merely furnished the condition or occasion for the occurrence of the accident but was not one of its causes (see, Reynolds v Town of Sherburne, 80 AD2d 652, 653; see generally, Rodriguez v Pro Cable Servs. Co. Ltd. Partnership, 266 AD2d 894). Under these circumstances, we are of the view that summary judgment should also be awarded to Niagara Mohawk.

In opposing defendants’ motions and cross motions for summary judgment, Vaughn and plaintiff Gabrielle Vaughn incorporated the affidavit of Tryon’s expert and submitted no expert opinion of their own.