Derdiarian v. Felix Contracting Corp.

51 N.Y.2d 308, 434 N.Y.S.2d 166 (1980)

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Nature of the Case

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Facts

D was performing a contract to install an underground gas main in the City of Mount Vernon for defendant Con Edison. Bayside Pipe Coaters, P's employer, was engaged as a subcontractor to seal the gas main. Dickens (D2) suffered an epileptic seizure and lost control of his vehicle. The car struck P with such force as to throw him into the air. When P landed, he was splattered over his face, head, and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile. The enamel was used in connection with sealing the gas main. P’s body ignited into a fireball, but he survived. P claimed that D had negligently failed to take adequate measures to ensure the safety of workers on the construction site. D claimed that P was injured in a freakish accident brought about solely by D2's negligence and that there was no causal link between D2's breach of duty and P's injuries. P called as a witness Lawrence Lawton, an expert in traffic safety. According to Lawton, the usual and accepted method of safeguarding the workers is to erect a barrier around the excavation. The expert testified that the barrier should cover the entire width of the excavation. He also stated that there should have been two flagmen present, rather than one, and that warning signs should have been posted advising motorists that there was only one lane of traffic and that there was a flagman ahead. P was awarded damages from D. D appealed.