Opinion
01 Civ. 9961 (HB)
October 31, 2002
OPINION ORDER
I. BACKGROUND
On May 18, 2001, Clearwater Drilling, Inc. ("Clearwater"), defendant and third-party plaintiff, with assistance from third-party defendant, Environmental Assessment and Remediations, Inc. ("EAR"), severed by accident during an excavation fiber-optic cable owned by plaintiff, MCI Worldcom Network Services, Inc. ("MCI"). MCI alleges that the accident happened because Clearwater negligently failed to verify the precise location of MCI's fiberoptic cables before excavating. The damaged fiber-optic cables are located in a conduit operated by third-party defendant, Empire City Subway Co., Ltd ("ECS"). ECS moves for summary judgement to dismiss Clearwater's third-party complaint and EAR's cross-complaint, which allege that the accident occurred because ECS negligently marked the location of its conduit. ECS contends that it was not the proximate cause of the damage to MCI's facilities in its conduit. For the reasons set forth below, ECS's motion for summary judgment is DENIED.
II. DISCUSSION
To establish a cause of action in negligence, Clearwater and EAR bear the initial burden of demonstrating "1) the existence of a duty flowing from defendant to plaintiff 2) a breach of this duty; 3) a reasonable close causal connection between the contact and resulting injury; and 4) actual loss, harm or damage." Febesh v. Elcejay Inn Corp., 157 A.D.2d 102, 104 (1st Dep't 1990), appeal denied 77 N.Y.2d 801 (1991). The key area of dispute in the instant case is whether ECS's conduct contributed to the proximate cause of MCI's injury
The standards applicable to motions for summary judgment are well-settled. Summary judgment should be granted when the record shows "that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). In its motion for summary judgment, ECS expends considerable energy to demonstrate that Clearwater was negligent in fulfilling its duties as an excavator while drilling the bore hole that damaged MCI's fiber-optic cable. Even if Clearwater were negligent in fulfilling its duty, acts of others, nonetheless, may contribute to the proximate cause. Lopez v. City of New York, 4 A.D.2d 48, 52 (2d Dep't 1957).
Both Clearwater and EAR assert that ECS had sloppily marked the location of its conduit where MCI's fiber-optic cable lay, which allegedly contributed to the accident underlying this lawsuit. Clearwater Affirmation, ¶ 5; EAR Opp. Mem., p. 2. Clearwater contends that ECS breached its duty under New York General Business Law § 763 ("NYGBL § 763"), entitled "Protection of Underground Facilities" (Clearwater Affirmation, ¶ 5). Although the unexcused breach of a statute is "more than some evidence of negligence. It is negligence in itself," Justice Cardozo warned that "[w]e must be on our guard, however, against confusing the question of negligence with that of the causal connection between the negligence and injury." Martin v. Herzog, 228 N.Y. 164, 168, 170 (1920). Merely because ECS may have failed to comply with the directives of NYGBL § 763 does not by itself imply that ECS's conduct contributed to MCI's injury. In an action where negligence is the basis of liability, the failure to observe the standard of care imposed by a statute may be evidence of negligence only "if the violation causes or contributes to causing the accident." See Archie v. Todd Shipyards Corp., 65 A.D.2d (1st Dep't 1978) (citing Martin v. Herzog, 228 N.Y. 164 (1920). EAR contends ECS breached its duty by failing to comply with the standard of care established by 16 NYCRR 753-4.8, which requires that markings used to identify underground communication facilities (other than telephone) are to be identified by a "C," EAR Mem., p. 2. The violation of a regulation or ordinance, however, does not conclusively establish negligence. The violation by ECS of 16 NYCRR 753-4.8 may be treated by a jury as some evidence of negligence by ECS. Bauer v. Female Acad. of the Sacred Heart, 97 N.Y.2d 445, 453 (2002). Assuming, arguendo, that ECS in fact violated NYGBL § 763 or 16 NYCRR 753-4.8, the plaintiffs must still prove that ECS's alleged breach of the statute or municipal code is sufficiently connected to the injury suffered that it could be said to have caused the injury ( e.g., ECS breach was a proximate cause of the injury). Point Prods. A.G. v. Sony Music Entertainment, Inc., 215 F. Supp.2d 336, 344 (S.D.N.Y. 2002); Febesh v. Elcejay Inn Corp., 157 A.D.2d at 104.
New York General Business Law § 763 states that an operator of an underground utility, including telecommunications facilities, "shall accurately and with due care designate within a reasonable period of time the location of its underground facilities in the manner and during the time period set forth in the rules and regulations adopted by the public service commission."
In regards to the causation element, Clearwater and EAR allege that because the markout running closest to the bore hole appeared invalid to the excavator, the excavator ignored that markout and used the wrong markout to determine where a hole could be safely drilled. See Clearwater Opp. Mem., p. 3; EAR Opp. Mem., p. 3. In support of their contention, they refer to the deposition testimony of Clearwater's driller, Wallace Rowland. Rowland testified that he thought the marking running closest to the bore hole appeared crossed out, and was therefore invalid. EAR Affirm., Exh. C (Rowland Depo.) p. 194 lines 20-23. However, when later asked why Clearwater failed to take any measurements from the alleged invalid marking, Rowland answered, "I really didn't know why we didn't do that." Id. at p. 283, lines 6-11. Although Rowland's deposition testimony is internally inconsistent with regard to why he ignored the markout, for purposes of ECS's summary judgment motion, the portions of Rowland's testimony to which Clearwater and ECS point must be credited. Arnstein v. Porter, 154 F.2d 464, 469 (2d Cir. 1946) ("Although part of plaintiffs testimony on deposition (as to `stooges' and the like) does seem `fantastic,' yet plaintiffs credibility, even as to those improbabilities, should be left to the jury."); Kass v. A.L.U.F. Plastics, Inc., 1999 WL 961780, at *1 n. 1 (S.D.N.Y. Oct. 20, 1999); see Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 202 (2d Cir. 1995) (stating that a court must "draw all factual inferences in favor of the party [against] whom summary judgment is sought."). ECS's failure to identify its markout line with a "C" as required by 16 NYCRR 753-4.8 is further evidence that a jury may rely on to find that ECS may have helped contribute to causing the damage to MCI's fiber-optic cable. Bauer, 97 N.Y.2d at 453. The credibility of Rowland's statements and the nexus between ECS's conduct and MCI's injury are questions best left for a jury to decide. Subin v. Goldsmith, 224 F.2d 753, 758-59 (2d Cir. 1955); Lombard v. Booz-Allen Hamilton, Inc., 280 F.3d 209, 215-16 (2d Cir. 2002) ("foreseeability and causation . . . are issues generally and more suitably entrusted to fact finder adjudication" (quoting Palka v. Servicemaster Mgmt. Servs. Corp., 83 N.Y.2d 579, 611 (N.Y. 1994)). I find that ECS has failed to demonstrate that there is an absence of evidence to support the non-moving parties' case on an issue which they would have the burden of proof at trial. Philips Credit Corp. v. Regent Health Group, Inc., 953 F. Supp. 482, 506 (S.D.N.Y. 1997).
III. CONCLUSION
For the reasons discussed above, ECS's motion for summary judgment to dismiss Clearwater's third-party complaint and EAR's cross-complaint is DENIED.