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Res Ispa Loquitur Inapplicable to Falling Trees / Poles (NY)

April 10, 2019

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<p style="text-align: justify;">In <em><a href="">Berliner v. Con Ed, Inc.</a>, Inc.</em> the Appellate Division, First Department affirmed the trial court’s Order granting the motion of defendant Con Ed for summary judgment, declaring no liability for plaintiff’s injuries in connection with its fallen utility pole.</p>
<p style="text-align: justify;">During Superstorm Sandy, plaintiffs ventured outside to see whether fallen trees in their neighborhood could be cleared when another tree fell onto a series of utility wires causing a utility pole to snap and fall over striking plaintiffs. Con Ed was responsible for installing and maintaining the pole. Con Ed established entitlement to judgment as a matter of law by showing that it neither created nor had actual or constructive notice of a dangerous or defective condition in the utility pole. They submitted a variety of affidavits indicating that the pole complied with all applicable government and industry standards for that location and anticipated forces, but that the extreme forces created by the falling tree were excessive with respect to industry standards.</p>
<p style="text-align: justify;">To oppose Con Ed’s motion, plaintiffs also submitted affidavits with respect to the circumference of the pole and the pending superstorm, but failed to raise a triable issue. The court held that such an incident may occur absent negligence, and noted that the pole was on a public highway and not within the exclusive control of Con Ed when subjected to hurricane conditions. Additionally, they held that plaintiffs could not rely on the doctrine of res ipsa loquitur to raise an issue of fact as to negligence.  This case demonstrates that despite a well-known “superstorm” and constant warnings with respect to its potential impact, success on summary judgment motion is still possible, when arguing a lack of actual or constructive notice of dangerous or defective conditions.  Thanks to Nicole Lyalin for her contribution to this post.  Please email <a href="">Brian Gibbons</a> with any questions.</p>
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