Court Dismisses Complaint and Third-Party Contractual Indemnification Action Against Employer In Accident Involving Electrical Worker Whose Admitted Mistake Caused Arc Fault

In a decision dated January 7, 2020, the Hon. Thomas Feinman granted our client Haugland Energy Group, LLC, a third-party defendant, summary judgment dismissing the third-party complaint against it. The Court also granted the cross-motion of defendants/third-party plaintiffs, LIPA and PSEG, for dismissal of the plaintiff’s complaint, which asserted claims pursuant to Labor Law §§241(6) and 200 and for common-law negligence. The plaintiff, an experienced journeyman lineman employed by Haugland, was working on energized overhead electrical lines when he mistakenly crossed two energized phases of wire, producing an arc fault and a “fire ball.” Although the plaintiff acknowledged that it was his erroneous action in crossing phases that caused the arc fault, the plaintiff alleged that a defective condition in PSEG’s breakers and/or relays at the substation supplying power to the electrical pole caused the prolonged “fire ball” which resulted in his injuries. Haugland submitted the affidavit of a professional engineer who established that the cited Industrial Code provisions did not apply to the facts of the case and were not violated, and that Haugland was not independently at fault so as to trigger its contractual indemnity obligations to LIPA and PSEG. The Court held that the affidavit of Haugland’s expert engineer established that the plaintiff was the sole cause of the accident inasmuch as he was well trained, had extensive experience performing this type of work, appreciated the hazards of crossing phases, was provided with the appropriate safety equipment, the work was performed in accordance with Haugland’s health and safety plan and the other members of the plaintiff’s crew were properly trained and qualified to support the plaintiff and provided adequate supervision. The Court held that Haugland’s evidence established that the Industrial Code provisions (pertaining to warnings and protection against electrical contact/shock) did not apply to this accident since the plaintiff did not sustain electrical shock. The Court declined to consider the affidavit of the plaintiff’s expert witness, a lineman foreman, on the grounds that the plaintiff failed to prove that this witness had the requisite education, training or experience with respect to the circuit breaker and relay settings at issue to render a reliable opinion. The Court also noted that the plaintiff’s expert witness failed to rebut the opinion of Haugland’s expert engineer that Haugland acted in compliance with all applicable rules, statutes and regulations. On the basis of the foregoing, the Court granted Haugland’s motion to dismiss the third-party complaint and the cross-motion of LIPA and PSEG to dismiss the plaintiff’s complaint.

William Wittenberg v. Long Island Power Authority, et al., Index No. 611711/2017 (Nassau Co., Sup. Ct., Jan. 7, 2020)

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