have merit, their silence at sidebar prevented the defect from being remedied on that day, by that jury, based on evidence presented over the course of the protracted and hard-fought trial. Rather than being sent home, the jury should have been permitted to return to the task at hand with the goal of returning a sound verdict.
C. Negligence of Westinghouse
By way of a partial reiteration, sufficient evidence was placed before the jury to justify the conclusion that Westinghouse was negligent in failing to provide post-sale warnings upon learning of loose connections developing in its switchboards.
The Court also notes that, because any objection to inconsistency has been waived, see supra at 15-19, the Court's inquiry regarding the legitimacy of the jury's determination that Westinghouse negligently failed to warn need not be confined solely to post-sale events. The issue of whether Westinghouse also negligently failed to issue warnings at the time of sale may be factored into the equation. The jury's possible reliance on that claimed omission -- as argued by plaintiffs' counsel and framed by the proof -- would furnish another ground in support of their determination of negligence. As plaintiff Grant's counsel correctly notes, "there was disputed testimony as to whether Westinghouse provided instruction manuals [with the switchboard at the time of sale in 1968] which would set forth the necessity of periodic inspections and maintenance of its equipment. No such manuals were ever produced." (Resnick Apr. 7, 1994 Aff. at P 5 (submitted in opposition to motions of Westinghouse and A & S).)
With respect to Westinghouse's argument that it had no duty to warn Grant, who knew, or should have known, about the potential dangers associated with a switchboard,
the evidence as to his expertise or professionalism was conflicting. He did testify that, as a professional, he was knowledgeable about electrical switches. But other evidence painted a different picture.
As a result of cross-examination by counsel for Westinghouse, the jury might have concluded that Grant gained his A & S position largely because of his leadership role in the International Brotherhood of Electrical Workers. Such evidence raised the specter that he was an electrician essentially in name only -- being devoid of proper training and experience, he was not a "knowledgeable user" to whom no duty to warn would be owed.
Similarly, relying on the testimony of A & S Staff Electrician Roger McNair, Westinghouse again contends that A & S had knowledge of the potential damages of the switchboard. The jury, however, may have doubted the scope and sufficiency of McNair's purported professionalism. Such reservations could be grounded on their evaluation of his testimony, including his demeanor while on the stand, together with the fact that he appeared to be wholly "outside the loop" regarding the relevant events in this case. Parenthetically, there is nothing in the record to suggest that Westinghouse relied upon, or in any way adjusted its conduct, because of some perception that it had as to the competence of either of the two individuals. To the contrary, it appears defendant had no pre-litigation awareness of either Grant or McNair.
As mentioned previously, Westinghouse also maintains that even if, arguendo, it was negligent, its negligence was not a proximate cause of the accident. Grant's insertion of a screwdriver into the arc chute is said to constitute an intervening cause that severed the link between Westinghouse's conduct and plaintiffs' injuries. This claim will be discussed shortly.
D. Negligence of A & S
A & S argues that "the evidence does not support the finding of the jury that third-party defendant's negligence in failing to have periodic inspections of the switchboard conducted caused plaintiffs' injuries . . . ."
Preliminarily, it is important to note that A & S does not contest the jury's finding that it was negligent in failing to inspect the switchboard. The only arguments made relate to proximate cause, and are predicated on the fact that neither of the experts who testified stated that proper maintenance would have prevented the accident. However, as explained in footnote 2, supra, the plaintiffs' description of how the accident happened, considered in conjunction with the experts' testimony of the problems associated with loose connections, provided sufficient information to support the jury's findings against A & S.
E. Assumption of Risk and Negligence of Plaintiff Grant
Reference to the verdict form (Ct. Ex. 13) indicates that the jury found that Westinghouse had established the elements of its claim that the plaintiff William Grant was negligent and he assumed the risk of his own accident, and that his negligence and assumption of the risk were proximate causes of the occurrence. Based on that conclusion, they allocated 40% of the total fault to plaintiff Grant.
No one has challenged, or questioned the significance of, the jury's determination that Grant was negligent. However, both the defendant Westinghouse and third-party defendant A & S argue that the jury, by finding assumption of risk, necessarily found that Grant endeavored to partially disassemble the switch by removing the arc chute, notwithstanding his categorical testimony to the contrary. Each also claims that such an act would not have been foreseeable by either Westinghouse or A & S, and thus constituted a superseding, rather than a concurrent, proximate cause of the accident, thereby absolving them from liability as a matter of law.
1. Factual Predicate for Assumption of the Risk
Assuming for a moment that Westinghouse and A & S are correct in their argument that such errant repair efforts by Grant, if any, would not have been foreseeable and, accordingly would constitute a superseding cause of the accident,
the question becomes whether there was another factual predicate upon which the jury's finding of assumption of the risk and negligence could rest, which other ground could legitimately be considered as a concurrent, rather than superseding, cause of the accident.
Initially, it should be noted that the Court, in its charge, explained the concept of assumption of risk generally, and also set forth the factual claim of Westinghouse regarding that particular issue, namely that Grant removed the arc chute and inserted a tool into the switch. However, the mere fact that Westinghouse argued that Grant assumed risk under a claimed circumstance, and the Court mentioned Westinghouse's claim in its charge, does not mean the jury could only consider that circumstance in evaluating the conduct of Grant. If there was other evidence in the record that would support the conclusion that he assumed the risk in some other particular, the jury's decision might rest on such other ground. In this case, such other evidence was present. Among other things, Grant was the chief electrician on site. It was his responsibility to maintain the electrical equipment at the A & S facility. Yet he testified that he never inspected the equipment in question during his thirteen years of service. More particularly, he took no steps to determine whether there were any loose connections or signs of overheating in the equipment, even though simply placing a hand on the exterior of the machine would have disclosed the existence of the latter condition.
In view of the above circumstances, the jury might have found that Grant -- given his position with A & S and his expertise -- "should [at the very least] have known and fully understood the risk of harm"
that developed from Westinghouse's failure to issue adequate warnings and instructions with its product, as aggravated by his own failure to maintain and inspect the switchboard. Indeed, the thrust of plaintiffs' proof was that loose connections produced overheating within the machine, which, in turn, caused the unit to essentially explode in Grant's face when he endeavored to determine why the store's escalators had suddenly stopped.
Actual or constructive knowledge by Grant of the potential for injury associated with the failure to inspect or maintain the switchboard, viewed in conjunction with other evidence in the case, would support a finding that he impliedly assumed the risk that ultimately produced his injury. See generally 1 New York Pattern Jury Instructions - Civil, PJI 2:55, at 153 (Supp. 1995) ("In Arbegast [v. Board of Education, 65 N.Y.2d 161, 490 N.Y.S.2d 751, 480 N.E.2d 365 (1985)], the Court of Appeals indicated that a failure to appreciate a known danger could constitute an implied assumption of risk.")
In sum, the maintenance/inspection scenario outlined above would serve as a proper predicate for the jury's assumption of risk finding, independent of Grant's alleged insertion of a screwdriver into the arc chute. Moreover, if that was the basis for their determination, it cannot be said that the concomitant implicit finding of shared or concurrent fault with Westinghouse is erroneous as a matter of law.
2. Proximate Cause - Intervening Causes
In any event, there is another view of evidence that would also support the assumption of risk finding, viz. that Grant did insert his screwdriver into the arc chute in an effort to repair the switchboard and restore power to the escalators. If he did so, certainly the jury's finding of assumption of the risk would properly lie, but that is not the focal point of the present dispute. Rather, the pivotal issue is whether such conduct would constitute a superseding cause of the accident as a matter of law, or whether it was for the jury to determine if that intervening act was a concurrent or superseding cause of plaintiffs' injuries.
For an intervening act or cause to be deemed superseding (i.e., designated as the sole cause of an occurrence), it must have been "unforeseeable." Was what Grant supposedly did unforeseeable? The answer turns on how his conduct is defined. If it is defined as the precise act involved, as Westinghouse contends should be the case,
i.e. inserting a screwdriver into an arc chute, the answer is "yes." But if the conduct is defined in a broader sense, i.e. as an emergency effort by an on-site repairperson to reactivate a machine vital to the operation of a commercial establishment, the answer is "no."
Westinghouse has drawn the question too narrowly. In so doing, it ignores the fact that policy considerations have framed the law in this area, with the defining question being "at what point is a defendant whose negligent act or omission has contributed to an injury to be relieved of liability by reason of the fact that after his act or omission a new and independent cause comes into operation?" 1 New York Pattern Jury Instructions - Civil, PJI 2:72, at 212. Indeed, "to speak of an intervening 'cause' is misleading, for the problem is not one of causation but of policy concerning limitation of responsibility." Id.; see also Derdiarian v. Felix Contracting Corp., 51 N.Y.2d 308, 314-15, 434 N.Y.S.2d 166, 169, 414 N.E.2d 666 (1980).
The point at which a negligent defendant's responsibility to an injured party should be severed because of the intervening act of a third-party, or of the plaintiff as in the present case,
has been the subject of numerous decisions, which typically turn on the particular facts involved. Nonetheless, certain basic principles have emerged from the case law, which are well synopsized in the following excerpts from Billsborrow v. Dow Chemical, U.S.A., 177 A.D.2d 7, 16, 579 N.Y.S.2d 728, 733 (2d Dep't 1992) (citations omitted):
For there to be recovery for damages stemming from a product defective because of the inadequacy or absence of warnings, the failure to warn must have been a substantial cause of the events which produced the injury.
Where an intervening act combines with the defendant's conduct to produce the plaintiff's injury "liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created by defendant's negligence." Thus, an intervening act which is "extraordinary under the circumstances, not foreseeable in the normal course of events, or independent of or far removed from the defendant's conduct . . . may well break the causal nexus."