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  • Peter J. Creedon

'ENCROACHING' POWER AND CABLE LINES. ARCING FIRES AND RESIDENTIAL INFERNOS

SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF COUNTY --------------------------------------------------------------------------X HOMEOWNER’S INSURER AS SUBROGEE OF HOMEOWNER, Plaintiff, Index No.: -against- ELECTRIC UTILITY and CABLE UTILITY Defendant. ---------------------------------------------------------------------X PETER J. CREEDON an attorney duly admitted to practice in the State of New York hereby affirms pursuant to 2106 CPLR that I am a member of Creedon & Gill P.C., attorneys for Homeowner’s Insurer in the within action, that I am familiar with the captioned matter based upon my review of the file of the matter maintained in our offices and upon conversations with various parties and their representatives. I draw this affirmation on information and belief and in opposition to the Summary Judgment motion of Cable Utility and the “Cross Motion” of Electrical Utility. INTRODUCTION 1. Cable Utility seeks Summary Judgment Relief on two grounds. 2. The first is premised upon the proposition that they were not responsible for any acts of Negligence which were a Proximate Cause of either of the two Homeowner fires, the first occurring on December 12th, 2014, the second on April 14th, 2015. 3. The second ground is the argument that they have been barred from the ability to mount an effective defense in this action because of spoliation of evidence committed by Homeowner Insurer or the Homeowners. 4. These grounds are addressed in order. NEGLIGENCE OF CABLE UTILITY 5. Attached herewith are the Affidavits of Stuart Morrison, a Certified Fire Investigator and Engineer (“Morrison Aff.”, Exhibit “1”) and Craig Kasper, an Electrical Engineer and Power Distribution Expert. (“Kasper Aff., Exhibit “2”). Stuart Morrison, the principal of Morrison Engineering, was involved in the investigation of both Homeowner fires from the outset. 6. It is their opinion, expressed to a reasonable degree of Origin and Cause and Electrical Engineering certainty, that a failed Electric Utility “Splice” in Electric Utility power lines 600 feet from the Homeowners’ home caused electrical arcing to occur between the power lines and adjacent Cable Utility TV lines, “energizing” and heating the Cable Utility TV lines to the point where the Cable TV lines ignited both Homeowner fires where they entered the Homeowner home. 7. It is the opinion of these experts, expressed to a reasonable degree of Origin and Cause and Electrical Engineering certainty that multiple failures on the part of both Cable Utility and Electric Utility jointly and severally caused the electrical arcing that energized the Cable Utility TV lines and caused the Homeowner fires. 8. It is the opinion of these experts, expressed to a reasonable degree of Origin and Cause and Electrical Engineering certainty that the electrical arcing and Homeowner fires occurred because; 1) Industry-mandated and safety-critical clearance distances were not maintained between the Electric Utility power lines and the Cable Utility TV lines; 2) This clearance failure existed because neither Defendant managed their equipment correctly and because CABLE UTILITY had negligently installed its equipment too close to the Electric Utility power lines; 3) The Electric Utility “Splice” had predictably failed because of shoddy workmanship by Electric Utility and 4) Cable Utility had inexplicably and negligently failed to ground its Cable TV lines. 9. The factual background and technical explanation of these opinions are set forth below. CABLE UTILITY AND ELECTRIC UTILITY LINES AND EQUIPMENT. 10. Three wood utility poles approximately 45 feet in height serviced the distribution of electrical power and Cable TV service near the Homeowner home. 11. Pole “20” was furthest from the Homeowner home and immediately south of XXX Road. “Primary” electrical distribution power lines, carrying over 4,000 volts of electricity, branched off from Pole “20” and ran south-east above the Homeowners’ horse pasture 260 feet to a Transformer located on Pole “19”, which was about 320 feet from the Homeowners’ home. (Homeowner Property Overview, Exhibit “3”; Electric Utility Work Prints, Exhibit “4”; Photographs taken and annotated by Electric Utility following their November 20th 2015 joint inspection, “Electric Utility 11-20-15 annotated photos” Exhibit “5”, pages 1,2,3; Kasper Aff. ¶ 20) 12. At the Transformer at Pole 19 primary voltage was “Stepped Down” and “Secondary” power distribution lines of “120/240-volt triplex” attached at Pole 19 branched off in two directions. In one direction the “120/240-volt triplex” ran further south about 75 feet towards the Homeowner home where it then attached to Pole 19.1, closest to the Homeowner home. From there the power lines, along with Cable Utility TV lines, ran down in a conduit on Pole 19.1 to an underground conduit that serviced the Homeowner home. (Electric Utility 11-20-15 annotated photos, Exhibit “5”, pages 1,2,3; Kasper Aff. ¶ 20) 13. In the second direction, the “120/240-volt triplex” returned back 260 feet north-east across the Homeowners’ horse pasture towards a home on the other side of Xxxx xxxxx Road, using an attachment back at Pole 20 as a way-point. In the middle of this 260 span of “120/240 volt triplex” returning back across the Homeowner horse pasture between Pole 19 and Pole 20 there was a “Splice” patching the line together. (Electric Utility 11-20-15 annotated photos, Exhibit “5”, page 2; Photo of the Homeowner Horse Pasture and approximate area of Splice, Exhibit “6”; Kasper Aff. ¶ 21-22) 14. “120/240-volt triplex”, as the name implies, consist of three wires. Two of these are insulated wires each carrying 120 volts of electricity. (“Hot Legs”). The third is a bare stranded-steel “neutral cable” which ordinarily carries no current and exists to support the insulated wires as they are carried from pole to pole wound around the neutral cable. The neutral cable is normally grounded at multiple points along the distribution system. (Kasper Aff. ¶ 23). 15. The “Splice” in the “120/240-volt triplex” midway between Poles 19 and 20 had two components. First, two ends of the stranded-steel “neutral cable” were joined together with an “automatic splice”, a kind of spring loaded tube fitted with interior ratcheting-jaws that clamped the cable ends together when they were jammed firmly enough inside. (Kasper Aff. ¶ 24). 16. In addition, each of the two 120-Volt “Hot Legs” were separately joined together with “H-Taps”. An “H-Tap” is a metal crimp about the size of a box of matches which is crushed down to join the two ends of a 120-volt “Hot Leg” once the wire’s insulation has been cut back. (Electric Utility 11-20-15 annotated photos, Exhibit “5”, pages 4, 5; Morrison Engineering annotated photos taken during the November 20th 2015 joint inspection “Morrison 11-20-15 annotated photos”, Exhibit “7”; Kasper Aff. ¶ 24). 17. These “H-taps”, once in place, could have been insulated by taping them, but instead they were covered by “Tap Covers”. A “Tap Cover” is a plastic sleeve, hinged like an eyeglass case, approximately 5 inches in length, fitted with plastic snaps. Industry custom and practice called for the Tap Covers to be reinforced with wraps of electrical tope to ensure that they would stay shut, since they were prone to fail in the Adirondack winters. (Deposition Testimony of Electric Utility Lineman D.P, Exhibit “Z” to the motion of Cable Utility “P. EBT”, pages 51-58) Unfortunately, only one of the “Tap Covers” was reinforced with wraps of electrical tape. It was the “Tap Cover” that was not taped which ultimately failed and set in motion the chain of events that caused both Homeowner fires. (Side by Side photograph of damaged and undamaged “Tap Covers”, Exhibit “8”, “Tap Cover Photo” produced for inspection by Electric Utility in the offices of the Utility Attorneys in April of 2018; Kasper Aff. ¶ 25). 18. No Electric Utility witness offered any explanation of why this Splice existed in the first place, claiming to have no record of the “Splice” being put in place. Lineman witness George Braynack testified that “they probably just ran out of line” and testified that inserting a splice for the such a reason was not an acceptable practice in new construction. (Deposition Testimony of Electric Utility lineman G. B, Exhibit AA to Cable Utility’s motion, (“B. EBT”) page 31) It appears most probable that the “Splice” was put in place some years earlier when a pole was removed from the middle of the Homeowners’ horse pasture, before the Homeowners owned that portion of the pasture, and not replaced with a new pole. ( Homeowner Deposition Testimony, Exhibit “V” To Cable Utility Motion, (“Homeowner EBT”), pages 169 to 171) This could also explain how the excessive length and unmanageable span of 260 feet from Pole 19 to Pole 20 was created. Such a span distance is not even contemplated in the discovery that Electric Utility produced, a Power Point presentation of G. P. A. dated October 2013 and denominated as a “Material and Design Standards publication” titled “Clearances on Same Structures”. (“Clearances on Same Structure”, Exhibit “9”) Page “32” of this publication is most relevant to our considerations and is set forth herein separately as (“Clearnces on Same Structure, page 32” Exhibit “10”) It appears, in the absence of any other information, that rather than string a new line between Poles 19 and 20, Electric Utility adopted the expediency of Splicing the ends of triplex lines together in the middle of the span. 19. Cable Utility’s communication lines, which they refer to collectively as their “plant”, consisted of a braided-steel “messenger-cable”, designed to support the lines that actually carry communication signals, which were “metal-sheathed signal cables” and “PVC-sheathed signal cables” which carried the Cable TV coaxial cables. (Deposition of A. M., Exhibit “DD” to Cable Utility’s Motion, (“M. EBT”), pages 19-28; Kasper Aff. ¶ 28; Homeowner Insurer 11-20-15 annotated photos Exhibit “7”) These three lines were wrapped and bundled together by a thin steel “lashing” wire. No Cable Utility witness claimed to have any record of when these lines were put into place, but as testified to by Homeowner (Homeowner EBT page 165 ) it is undisputed by Electric Utility and Cable Utility that Cable Utility TV lines were put in after the Electric Utility lines were already in place. (Morrison 11-20-15 annotated photos”, Exhibit “7” ; Electric Utility 11-20-15 Annotated Photos, Exhibit “5”) CABLE UTILITY witness A. M, of their construction division, testified that whenever it was that these lines had been put in place, even if it had been done by a contractor, that a Cable Utility construction division employee would have checked their placement to ensure their compliance with applicable codes and construction expectations. (“M. EBT” pages 10, 75-79) THE FIRES 20. On December 12th, 2013, while the Homeowners were not home, their house was completely destroyed by a fire. A scientific and NFPA compliant investigation into the cause of the fire was conducted by the XXXXX County Cause and Origin Team and Morrison Engineering, certified fire investigators for the Homeowners’ insurer. The investigations determined that the fire was electrical in nature and that it originated in the south-west corner of the house, an area where electrical and Cable TV service entered the home. Customary sources of fire causation were ruled out, the fire was judged to be electrical in nature, but the cause of the fire was not determined. (Homeowner EBT pages 49-53, XXXXX County Origin and Cause Team report, Exhibit “11”, December 2013 fire investigation photographs Exhibit “12”, Morrison Aff. ¶ 1 -14) 21. Both Homeowner and Cable Utility witnesses testified that they observed subsequent to the fire that Cable Utility TV lines running to the Homeowner home showed evidence of having been “energized” and that the closest pole to the Homeowner home, Pole 19.1, was scorched by the Cable Utility lines. (Homeowner EBT pages 56, 65 Page 16 – 27), Morrison Engineering Photographs Exhibit “13”) A Cable Utility witness looked at photographs of the Cable Utility lines taken after the fire and testified that they were obviously and dangerously over-energized and that this should have been reported up the chain of command by any Cable Utility technician coming across them. This requirement, of course, would apply directly to the Cable Utility technician who re-connected the Homeowner Cable Utility lines after the first fire who would be directly confronted with the same sights (Deposition testimony of P L, (“L EBT”), pages 16-20, 33-35). A Electric Utility witness testified that he traced Electric Utility power lines from the Homeowner home back to the next closest Pole, Pole 19, but no further. (B EBT, pages 26-32) The home was rebuilt, property replaced and the Homeowners provided with temporary living arrangements. 22. On April 14th, 2015, again while the Homeowners were not home, the house was completely destroyed by fire a second time. Again, the local fire department, as well as Morrison Engineering conducted a scientific and NFPA compliant investigation, documented by photographs, and determined the origin of the fire as being in the south-east corner of the house, the area where electrical and Cable TV service entered the house. Customary sources of fire causation were ruled out, the fire was judged to be electrical in nature, but the cause of the fire was not determined. (Homeowner EBT pages 83-90, XXXXX County Origin and Cause Team report, Exhibit “14”, April 2014 fire investigation photographs Exhibit “15”, Morrison Aff. ¶ 20 -30) 23. Again, neither Electric Utility nor Cable Utility traced their equipment back to the furthest pole on the Homeowners’ property, Pole 20 which was closest to XXXX Road, and connected to Pole 19. Admittedly this was not done by Morrison Engineering either. The reasoning seemed revolve around the fact that the power lines which actually serviced the Homeowner home terminated at Pole 19. (B EBT, pages 26-31). Stuart Morrison also mistakenly believed the evidence of energization he saw in the Cable TV lines during the fire inspections were caused by “back feeding”, meaning electrical energy released throughout the house as fire melted insulation to electrical wiring. (Morrison Affidavit ¶ 34). 24. The inability to identify the cause of the Homeowner fires ended on October 3rd, 2015. On that day the Homeowner home was being rebuilt again and Mr. Homeowner was keeping an eye on the construction living on a trailer at the property. The night before, Cable TV Service to the trailer suddenly blanked out. On exiting the trailer the next morning Mr. Homeowner found that his Cable TV Lines were scorched, melted and burned back to Pole 19.1. 25. Morrison Engineering was called to the scene when the Homeowners alerted their insurance broker. Morrison Engineering photographed the scene, as well as the damaged Cable TV lines, and took possession of a section of the burned cable to preserve as evidenced. Stuart Morrison recognized the damage patterns to the Cable TV lines as having been the same to the damage patters seen during inspections of both Homeowner fires. (D.Homeowner EBT p. 94-120, 197, 200-207, Morrison Engineering Photographs, Exhibit “15”, Morrison Affidavit ¶ 15-19, 31-33) 26. Following up at this point a local fire chief traced the Electric Utility power lines back the 600 feet to Pole 20 at XXXX Road. He observed that a “Splice” in the overhead National Grid secondary power lines strung between Poles 19 and 20 above the Homeowners’ horse pasture had failed and that the Electric Utility secondary power line and the Cable Utility communication lines were almost touching each other, separated at most by a matter of a few inches, and that the power line was actively arcing to the communication line. (D. Homeowner EBT, pages 203-209; Braynack EBT, pages 49-52). 27. The fact that the power lines and communication lines were almost touching was long standing, as evidenced from a picture taken by a Homeowner neighbor some years earlier (Neighbor Picture, Exhibit “16”; D. Homeowner EBT page 123) The overlap was also open and obvious to any Electric Utility or Cable Utility employee who visited the Homeowner residence, being in plain view both from the Homeowners’ driveway and XXXX Road at each about 130 feet away. 28. A bare “Hot Leg” was no more than an inch from Cable Utility lines. Temporary repairs were made by Electric Utility, consisting principally of taping up the “Splice” to lift the “Hot Legs” a few inches above the Cable Utility communication lines, replacing one “Tap Cover” still in place and adding another new one where the failed one had fallen off. This process was not photographed, so that no photos of the actual electrical arcing taking place exist. The failed “Tap Cover” was found in the Homeowners’ horse pasture right below the line. 29. The failure of the “Tap Cover”, in turn, occurred because it had not been given a protective wrapping of electrical tape after being snapped shut. (“B. EBT” pages 1-22) Subsequent pictures taken of both “Tap Covers” showed the that the one “Tap Cover” which did NOT fail had been given such a protective wrapping of electrical tape, while the one which did fail had not. (Side by Side Tap Cover photo, Exhibit “8”) 30. While Electric Utility argues that no “rule” or “manufacturer’s” specification require such taping, the practice is customary among power company lineman (Pierson EBT, pages 51-58) because the “Tap Covers” are known to be prone to failure, and to break along their hinged back. Electric Utility witness G. B, while denying that it was necessary to tape the Tap Covers, admitted that he himself taped the Tap Cover shut when he did his repairs, and that he had had seen at least three other instances of Tap Covers broken and lying on the ground. (B. EBT pages 1-22, 75-76) The consequences of such a failure of course can be catastrophic; either the electrocution of a Cable TV lineman or, as was the case here, “Stray Electricity” precipitating the Homeowner fires. (Kasper Affidavit ¶ 25). It is further obvious that whoever installed the “Tap Covers” between Poles 19 and 20 in the first place knew of and intended to follow this procedure, undertaking the duty to safely complete the insulating of the lines, excepting at such time as he ran out of tape or forgot what he was doing or simply gave up the effort. 31. A joint November 20th, 2015 inspection of the Electric Utility and Cable Utility equipment was arranged and participated in by Electric Utility, Cable Utility, Homeowner and Homeowner’s Insurer. It demonstrated that the Cable Utility TV lines had been installed without allowing them to “Sag” clear of the Electric Utility power lines, (strung “tight as a banjo string” according to Electric Utility) The Cable Utility lines were installed encroaching dangerously on the Electric Utility lines in derogation of National Electric Safety Code and Joint Use requirements. (Electric Utility Annotated Photos, Exhibit “5”, Homeowner Insurer Annotated Photos Exhibit “7”, Morrison Affidavit ¶ 15-19, Kasper Affidavit 32-41, Machattie EBT” page 32) Later that month Cable Utility would return to the field to replace their lines to correct this deficiency. At this point they now allowed and provided for the proper amount of “Sag” necessary to separate Cable Utility lines from the Electric Utility lines. (Machatie EBT” pages 32-45; Photos of “Plant” replacement, Exhibit “17”) 32. The November 20th, 2015 joint inspection also demonstrated that as a result of the failed “Splice”, a bare “Hot Leg” of the “240/120-volt triplex” Electric Utility secondary power line had been exposed and was and had been, for a long time and intermittently, actively electrically arcing to the adjacent Cable Utility communication lines that ran into the Homeowners’ home. Arcing is an electric current that is brief, strong and luminous, a current discharge which is produced when strong current leaps across a gap. This arcing from the Electric Utility power lines severely damaged the Cable Utility messenger cable, the metal-cased communication lines and split open the PCV-sheathing housing Cable Utility TV lines, energizing the Cable Utility TV lines. At some point, probably at the time that the last fire was caused, the arcing had burned through the lashing wire, causing the three Cable Utility lines to “unbundle” in the area of the splice. The extent, weathering, rusting and uneven nature of the damage to the Cable Utility lines demonstrated that the arcing had been long ongoing, for years according to the observations and experience of Mr. Morrison. (Electric Utility 11-20-15 annotated photos, Exhibit “5”, Homeowner Insurer 11-20-15 annotated photos, Exhibit “7”, Morrison Aff. ¶ 13-18, Kasper Aff. 40-41) 33. As stated previously, the Cable Utility TV lines were not designed or cable of handing the Electric Utility power line voltage, being designed for at most 65 volt. As a result of the electrical arcing the Cable Utility TV lines heated excessively through the process of electrical resistance until they were cable of and indeed did ignite both the fires in the Homeowner home. (Morrison Aff. ¶ 19, Kasper Aff. ¶ 40-41) 34. It was also found during this inspection that Cable Utility had failed to ground its communication equipment at Pole 19 to a “Down Ground” attachment specifically existing for that purpose. Grounding by Cable Utility of its equipment as a safeguard against “Stray Electricity” causing exactly the kind of fires the Homeowners suffered was expressly required in Cable Utility Joint Use agreement with Electric Utility. Instead that ground wire was left dangling in thin air. (Electric Utility Annotated photos, Exhibit “5”, pagse 6-9; Electric Utility / Cable Utility Joint Use Agreement, Exhibit “18”, Electric Utility Overhead Construction Standards, Exhibit “19”, Kasper Aff. 37, 53-54) 35. According to the testimony of Homeowner, it was widely recognized and apologetically admitted by Cable Utility, Electric Utility and the local fire authorities that the cause of the fires that destroyed his home had now been found. (Homeowner EBT, pages 203-215, 225-226). 36. Homeowner immediately switched to DISH TV, and after the three fires incidents that occurred over the course of a few months of occupancy between December 13th, 2013 and October 3rd, 2015, he and his wife never again experienced a fire event again. (Homeowner EBT, pages 218-221) LACK OF SAFE CLEARANCE DISTANCES 37. As discussed above, a primary proximate cause of the electrical arcing that caused the fires that destroyed the Homeowner homes was the lack of the industry-standard and safety-critical clearance distances between the Cable Utility TV lines and the Electric Utility secondary power lines. This resulted in the Electric Utility secondary power lines being separated from of the Cable Utility TV lines by just a few inches at times, depending on weather and other line load conditions. This distance was prone to vary, so that most times no arcing was occurring, as the lines and poles would bend, stretch and contract give conditions of heat, cold, wind, ice, and snow. As evidenced by a photo taken by a neighbor of the Horse Pasture in October of 2013, at times the Electric Utility secondary power lines dipped below the Cable Utility TV lines. (Neighbor’s October 2013 Photo, Exhibit “8” ). 38. The lack of safe clearance distances, when coupled with a failed splice in the Electric Utility secondary power line that exposed a 120-Volt “Hot Heg” of the “240/120-volt triplex” power line, permitted 120 volts of electrical power to arc from the Electric Utility power line to adjacent Cable Utility TV lines, which were not designed to carry more than 65 volts, “energizing” them and causing them to become excessively hot, so hot that they ignited the Homeowner fires at the point where they entered the Homeowner home. (Morrison Aff. ¶ 16-19, 31-32; Kasper Aff. 42-48) 39. This clearance failure was in derogation of National Electrical Safety Code clearance rules 235C2b(1)(a) and 235C1 as set forth in G P A’s October 2013 Material and Design Standards publication “Clearances on Same Structures” and by the Joint Use agreement in effect between Cable Utility and Electric Utility. which incorporate the NESC codes in Section 7, 17.4 and 17.5 (Clearances on Same Structure Exhibit “9”; Clearances on Same Structures, page 32 Exhibit “10”; Electric Utility / Cable Utility Joint Use Agreement, Exhibit “18”, Sections “7”, “17.4”, “17.5”; Electric Utility Overhead Construction Standards, Exhibit “19”; Kasper Aff ¶ 42-48) 40. Clearance requirements are in place to protect communication workers from being electrocuted, and to prevent “stray current” from energizing communication lines and causing fires, exactly what happened to the Homeowners. 41. These standards required clearance distances between the communication lines and power lines over the Homeowner horse pasture to be the greater of: 1) At least 30 inches at the lowest point of the sag between Poles19 and 20 (NESC 235C2b(1)(a)), or 2) 75 percent of the vertical distances required between the Electric Utility and Cable Utility “pole attachments” at Poles 19 and 20. (NESC 235C1 42. As stated above, the NESC actually approaches the problem of ensuring minimum clearances distances between power lines and communication lines in two ways. In addition to dictating a bare minimum “30” clearance distances between power lines and communication lines at the point of greatest “Sag” in any span, the NESC also dictates a higher standard for clearance deepening on how long the span is by focusing on vertical “Pole Attachment” distances. Necessary vertical “Pole Attachment distances vary depending on how long a span is and what kind of weather the span deals with year in and year out. It is premised on the simple proposition that what works for a 150 foot span in Florida will not work on a 250 span in the Adirondacks where the lines will be constantly burdened with wind, snow and ice. 43, As set forth in the discovery provided by Electric Utility, (Clearances on Same Structure Exhibit “9”; Clearances on Same Structures, page 32 Exhibit “10”) the vertical distance between Cable Utility and Electric Utility’s pole attachments at Poles 19 and 20 should have been between 81 and 90 inches given the length of the span (260 feet) and the weather conditions faced in this County, (Factors that establish “Maximum Conductor Operating Temperature” and “Ice Case” allowances.) This means that clearances at the greatest point of “sag” between Poles 19 and 20 should have been 75 percent of that; 60 and 67.5 inches. 44. In fact, however, the attachments at the poles were only 44.5 inches at Pole 20 and 79 inches at Pole 19. (Electric Utility 11-20-15 annotated photos, Exhibit “5”) Moreover, as stated previously, the actual clearance at the lowest point of the sag was a matter of a few inches, sometime zero and sometimes the power lines actually drooped below the communication lines. (Clearances on Same Structure Exhibit “9”; page 32 thereof, Exhibit “10”; Electric Utility / Cable Utility Joint Use Agreement, Exhibit “18”, Sections “7”, “17.4”, “17.5”; Electric Utility Overhead Construction Standards, Exhibit “19”; Neighors 10-13 Photo, Exhibit “16”; Kasper Aff. ¶ 42-48) THE FAILED ELECTRIC UTILITY SPLICE 45. As stated previously, the lack of safe clearance distances was coupled with the failed “Splice” in the Electric Utility “240/120-volt” secondary power line that exposed a 120-volt “Hot Leg” of the power line. This caused electrical arcing from the Electric Utility power line to energize the Cable Utility TV lines. These communication lines were not designed to handle that voltage, rated at most for 65 Volts, causing them to become excessively hot ignite both Homeowner fires where they entered the house. 46. Electric Utility witnesses testified that there was no record of when the splice was put in place above the Homeowner horse pasture, but it most probable that it was done when a Pole was removed from the Horse Pasture creating the massive 260 span between Poles 19 and 20. A span of this size is not even contemplated in G P A October 2013 Material and Design Standards publication “Clearances on Same Structures”. (Clearances on Same Structure Exhibit “9”; Clearances on Same Structures, page 32 Exhibit “10”) 47. As stated previously it was known to Electric Utility that the plastic “Tap Covers” used to cover the “H-Taps” that crimped the “Hot Legs” together were prone to fail in the brutal conditions of this County’s winters, cracking apart along their seams. (B EBT pages 1-22, 75-76) Custom and practice was to reinforce the Tap Covers with wraps of electrical tape that would keep them closed and the “Hot Legs” insulated. (P EBT, pages 51-58, Kasper Affidavit, ¶ 49-52) One of the “Tap Covers” was taped. But the other was not. (Side by Side Tap Cover Photos, Exhibit “8”) It was this “Tap Cover”, the one which was not wrapped with electrical tape, that broke open, permitted the arcing to begin, and which then ultimately fell off. It is no exaggeration to say that a few cents worth of electrical tape would have prevented both of the Homeowner fires. 48. While Electric Utility argues that no “rule” or “manufacturer’s” specification require such taping, the practice is customary among power company lineman because the “Tap Covers” are known to be prone to failure, and to break along their hinged back. The consequences of such a failure of course can be catastrophic; either the electrocution of a Cable TV lineman or, as was the case here, “Stray Electricity” causing the Homeowner fires. (B EBT pages 1-22, 75-76; Kasper Aff. ¶ 49-52). It is further obvious that whoever installed the “Tap Covers” between Poles 19 and 20 in the first place knew of and intended to follow this procedure, undertaking the duty to safely complete the insulating of the lines, excepting at such time as the lineman ran out of tape, forgot what he was doing, or decided something else was more important. As discussed below, New York law has long recognized the fact that Codes represent minimum standards in a field setting, and this is and should be true particularly where extraordinary dangers of life and death are at stake. Custom and practice along with foreseeability impose safety expectations on field lineman and that includes the simple practice of taping closures to ensure the integrity of the closure in instances where failure of a closure could be fatal. CABLE UTILITY’S FAILURE TO GROUND 49. As stated previously it was found that Cable Utility had failed to “ground” its Cable TV lines, a process by which the lines would be connected to a wire running into the ground to hamper or eliminate the possibility that “stray electricity” would run the Homeowner home and cause a fire. (Morrison Aff. 15-19; Kasper Aff. 53-54; Electric Utility 11-20-15 annotated photos, pages 6-9 ) 50. 17.6.40 (G) of the Joint Use agreement (Exhibit “18”) in place between Cable Utility and Electric Utility required Cable Utility to ground its equipment at Pole 19 to prevent the kind of fires that destroyed the Homeowner residence. However, during the Joint Inspection of November 2015 it was found that Cable Utility had not grounded its equipment at Pole 19 at all, but instead left the ground wire dangling in the air. The implication of this fact is that Cable Utility employees simply chose as a matter of expediency to ground their equipment to the common ground at the Homeowner home, allowing the heat energy from the Cable TV lines energized by the Electric Utility power lines to run directly into the Homeowner home and igniting the Homeowner fires. 51. As the Joint Use agreement states: Grounding shall consist of #4 covered, soft drawn copper down ground (Std. Item W11F), and copper or bronze connectors, and copper clad 5/8 inch diameter x 8 foot length ground rod(s). An additional ground rod shall be installed if it is necessary to lower the resistance to earth. All equipment shall be bonded to the grounding system. The communication company shall leave enough grounding conductor coiled at the location of the weather head for final connection by the electric company to their aerial ground wire/system neutral conductor. This ground arrangement shall apply unless local requirements specify otherwise. NEGLIGENCE 52. Consistent with the facts set forth above, the following negligent acts or commission and omission as attributable to each of the Defendants were proximate cause of the energizing of the Cable Utility Communication lines and the fires that destroyed the Homeowner homes. CABLE UTILITY 53. Cable Utility negligently failed to properly install their lines and equipment consistent with NESC 235C2b(1)(a) and 235C1 to allow for and adequate sag and clearance distances between the Electric Utility lines and the Cable Utility lines as required by NESC 235C2b(1)(a) and 235C1 and G P A’s October 2013 Material and Design Standards publication “Clearances on Same Structures”, Exhibits “9” and “10” (Kasper Aff. ¶ 56) 54. Given the span of some 260 feet between Pole 19 and Pole 20, a proximate cause of the Homeowner fires was the negligent failure of Cable Utility, to create adequate pole attachment distances between their line and Electric Utility lines power lines at Pole 19 and Pole 20, as provided for by NESC 235C2b(1)(a) and 235C1 and G P A’s October 2013 Material and Design Standards publication “Clearances on Same Structures”. Pole attachment distances should have been at least 81 to 90 inches at each pole, but were 44 and 71 inches respectively. Cable Utility’s failure to create adequate attachment eliminated the possibility of safe clearance distances being maintained mid span. Cable Utility negligently failed to call on Electric Utility to replace Poles 19 and Pole 20 with taller poles, as provided for in their Joint Use agreement, in order for the installation necessary attachment distances between the Electric Utility secondary power lines and the Cable Utility communication lines, or, in the alternative, to call on Electric Utility to place a new pole midspan between Poles 19 and 20 for the same purpose. (Kasper Aff. ¶ 57-59) 55. A proximate cause of the Cable Utility communication lines building up sufficient heat to ignite the fires in the Homeowner homes, was the negligent failure of Cable Utility, to ground its equipment at any of the Poles involved in the Homeowner case in derogation of Section 17.6.40 (G) of the Joint Use agreement in place between Cable Utility and Electric Utility which specified that “Grounding shall consist of #4 covered, soft drawn copper down ground (Std. Item W11F), and copper or bronze connectors, and copper clad 5/8 inch diameter x 8 foot length ground rod(s).” (Kasper Aff. ¶ 60) 56. A proximate cause of the Homeowner fires was the negligent failure of Cable Utility, its agents, servants and employees, to properly, timely and regularly inspect its equipment in a fashion that would have revealed the lack of adequate sag, safe clearance distances, inadequate pole attachment distances, lack of grounding and active arcing, in time to permit the correction of these deficiencies. (Kasper Aff. ¶ 61) 57. A proximate cause of the Homeowner fires was the negligent failure of Cable Utility, to properly follow up on observations it made after the first Homeowner fire that its communication lines had been over-energized, to communicate that fact within its own organization and to Electric Utility, and failing thereafter to inspect its equipment in a fashion that would have revealed the unsafe clearance distances, unsafe attachment distances, lack of grounding, active arcing, permitting correction of the deficiencies. (Kasper Aff. ¶ 62) CABLE UTILITY’S “NOTICE” ARGUMENT 58. Cable Utility’s argument that it cannot be found liable because it did not have notice of the condition(s) that caused the Homeowner fires is specious, since they themselves created the condition and set the chain of events in motion that caused the fires in the first place. 59. It is axiomatic that proof that a Defendant created a hazardous condition establishes that the Defendant had actual of the hazardous condition (see Piacquadio v. Recine Realty Corp., 84 N.Y.2d 967, 969, 622 N.Y.S.2d 493, 646 N.E.2d 795; Gordon v. American Museum of Natural History, 67 N.Y.2d 836, 501 N.Y.S.2d 646, 492 N.E.2d 774; Singer v. St. Francis Hosp., 21 A.D.3d 469, 799 N.Y.S.2d 742). 60. Cable Utility created the hazardous condition by installing its lines too close to the Electric Utility power lines in derogation of the National Electric Safety Code. It is well settled that violation of such a code is evidence of negligence. Hill vs. Cartier 258 A.D.2d 699, 685 N.Y.S.2d 336 (App. Div. 3rd Dept. 1999) and it is well settled that evidence of industry practice and standards is admissible to establish a duty of care. Phillips vs. McClellan Street Associates 262 A.D.2d 748, 691 N.Y.S.2d 598 (App. Div. 3rd Dept., 1999). 61. In many respects the case at bar is similar to French vs. Ehrenfeld 180 A.D.2d 895579 N.Y.S.2d 480 (App. Div. 3rd Dept 1992), where the Court wrote; Supreme Court erred in foreclosing plaintiff from presenting evidence through its expert witness that defendants created the defective condition by failing to exercise reasonable care and caution when installing the heating system. The expert witness offered to testify to the customary and usual practice of having a chimney inspected prior to hookup with a heating system. The court denied the offer as speculative, denominating such testimony as “hindsight”. This was an improvident exercise of discretion. Proof of customary practice within a particular trade is admissible to establish a standard of care (see, Trimarco v. Klein, 56 N.Y.2d 98, 105–107, 451 N.Y.S.2d 52, 436 N.E.2d 502). Because the standard of care in installing the heating system was the crux of plaintiff's case, exclusion of proof regarding that standard constituted reversible error. 62. Similarly, Cable Utility created the condition and set in motion the chain of events that caused the Homeowner fires by failing to ground its equipment. It is well settled that grounding failures will give rise to liability in cases where the ultimate victim proximately suffers as a consequence. This is true even where the victim may not even be in direct privity with a Defendant, or easily foreseeable, which is a factor not in place in the case at bar. Kelly v. M. C. Elec. Co., Inc. 68 A.D.2d 657, 418 N.Y.S.2d 28 App. Div. 1st Dept 1979, Vaneria v. Consolidated Edison Co. of New York, Inc. (Supreme Court, New York County, February 1999) Not Reported in N.Y.S.2d 1999 WL 292644 ELECTRIC UTILITY 63. A proximate cause of Homeowner fires was the negligent creation by Electric Utility, its agents, servants and employees, of a pole span of over 260 feet existing in conjunction with pole heights which did not allow for necessary and code compliant Pole attachment separations between the Electric Utility power lines and the Cable Utility TV lines as required by NESC 235C2b(1)(a) and 235C1 and G P A’s October 2013 Material and Design Standards publication “Clearances on Same Structures”, Exhibits “9” and “10”. (Kasper Aff. ¶ 63) 63. A proximate cause of the Homeowner fires was the negligent, shoddy and un-workmanship- like failure of Electric Utility, to tape the Splice “Tap-Cover” that ultimately failed. It was further negligent of Electric Utility to fail to have a written requirement for its agents, servants and employees requiring such taping take place, and to ensure that they were trained adequately to ensure the practice. (Kasper Aff. ¶ 64) 64. A proximate cause of Homeowner fires was the negligent failure of Electric Utility, its agents, servants and employees, to replace Poles 19 and 20 as provided for in their Joint Use agreement with Cable Utility in order to provide poles tall enough to permit the necessary Pole attachment separation between the Electric Utility secondary power lines and the Cable Utility TV lines, which should have been 81 to 90 inches as provided for by NESC codes and G P A’s October 2013 Material and Design Standards publication or, in the alternative, to place a new pole midspan between Poles 19 and 20 for the same purpose. (Kasper Aff. ¶ 65) 65. A proximate cause of Homeowner fires was the negligent failure of Electric Utility, to properly, timely and regularly inspect its equipment in a fashion that would have revealed the lack of adequate sag, unsafe clearance distances, unsafe pole attachment distances, lack of grounding, electrical arcing, energized communication lines or, having learned of any of these deficiencies. to have corrected them. (Kasper Aff. ¶ 66) 66. A proximate cause of the Homeowner fires was the negligent failure of Electric Utility, to properly follow up on observations made after the first Homeowner fire that Cable Utility communication lines had been energized, and failing thereafter to inspect its equipment in a fashion that would have revealed the lack of safe clearance distances, attachment distances and the arcing, or having learned of the lack of safe clearance distances, attachment distances and the arcing to correct the deficiencies. (Kasper Aff. ¶ 67) 67. A proximate cause of the Homeowner fires was the failure of Electric Utility to follow its own protocols which called for lessons learned from previous near-miss incident to be distributed throughout its organization and which, if followed, would have informed its employees on the dangers of energized communication lines from unsafe clearance distances, and the necessity of taping Tap Covers. (Kasper Aff. ¶ 68) ELECTRIC UTILITY’S “CROSS MOTION” 68. At the outset it should be noted that Plaintiff Homeowner’s Insurer objects to Electric Utility denominating its Opposition to Cable Utility ’s motion as a “Cross Motion”. Dispositive Motions were due on the day that Cable Utility served its motion, not ten days before the Cable Utility return date. 69. Electric Utility’s principal defense to the fact that the shoddy-workmanship of its “Splice” was a proximate cause of the Homeowner fires is the argument that taping of the “Splice” was not required by Code or by “Manufacturer’s Specifications”. 70. This argument is specious. It is well settled that Code requirements, especially in power utility settings, represent “minimum standards”, and that adherence to them does not prevent a finding of Negligence. 71. As the Court of Appeals stated in Miner vs. Long Island Lighting Company 40 N.Y.2d 372 (C.A. 1976); LILCO argues that the evidence shows it complied with the provisions of the National Electric Safety Code and in some ways exceeded its requirements and, thus, did all that it need have done in the circumstances. However, the code itself expressly provides that its provisions are ‘minimum requirements' and that ‘frequently’ circumstances require ‘higher factors of safety than the minimum requirements of these rules', circumstances which are certainly present here. Moreover, compliance with customary or industry practices is not dispositive of due care but constitutes only some evidence thereof. 72. This Court of Appeals ruling was a restatement of the rule expressed by the Appellate Divisions in Carrion v. Eastern Elevator Co 34 A.D.2d 1004, (App. Div. 2nd Dept 1970); It is practically hornbook law that in a common-law negligence action proof of general custom and usage is competent and admissible because it tends to establish a standard by which ordinary care may be judged. (Shannahan v. Empire Eng. Corp., 204 N.Y. 543, 550, 98 N.E. 9; Garthe v. Ruppert, 264 N.Y. 290, 296, 190 N.E. 643). Nor is the rule and different in a case where a statute prescribes certain minimum safety requirements, but it is established custom and usage to provide additional safety devices 73. And Sherman v. M. Lowenstein & Sons, Inc. 28 A.D.2d 922, (App. Div. 2nd Dept 1967) 1967; [W]e reject defendant[s]…… argument that it cannot be held liable because, in manufacturing the fabric used in making the pajamas, it complied with the flammability-testing method prescribed by law (Tit. 15 U.S.C. s 1191; General Business Law, s 502). While a defendant's compliance with a statute ‘is some evidence of the exercise of due care’ (Phillips v. Roux Labs., 286 App.Div. 549, 551, 145 N.Y.S.2d 449, 451), it does not preclude a conclusion that he was negligent (see, 2 Harper & James, The Law of Torts, s 17.6, 1014 (1956)). 74. The case at bar is similar in respects to Kraker vs. Consolidated Edison 73 A.D.3d 986, 900 N.Y.S.2d 664 (App. Div. 2nd Dept 2010) where the Court wrote; In particular, triable issues of fact exist as to whether Con Ed exercised due care in insulating and grounding its wires and power lines (see Miner v. Long Is. Light. Co., 40 N.Y.2d 372, 379, 386 N.Y.S.2d 842, 353 N.E.2d 805; Braun v. Buffalo Gen. Elec. Co., 200 N.Y. 484, 490, 492, 94 N.E. 206; see also PJI 2:206; 53A N.Y. Jur. 2d, Energy § 318). Accordingly, the Supreme Court properly denied Con Ed's motion, regardless of the sufficiency of the plaintiffs' opposition papers 75. PJI 2:206, in turn, states: PJI 2:206 Public Utilities—Electric Companies—Maintenance—Lines Generally An electric power company has the duty to use reasonable care in maintaining proper insulation of its transmission lines so that such lines do not become a source of danger to those foreseeably near them, and this duty requires continuing and adequate inspection to prevent and correct decay or impairment of the insulation. 76. It is further a clear question of fact for a jury as to whether Electric Utility should have discovered the lack of clearances between its lines and the Cable Utility lines, or the failed splice, both before and after the first fires. As the Appellate Division of the Fourth Department wrote in Pomichter v. Niagara Mohawk Power Corp. 296 A.D.2d 837, 744 N.Y.S.2d 280 (App. Div. 4th Dept 2002). “Power companies have an affirmative duty to exercise reasonable care in the operation and maintenance of their power lines and there is a correspondingly higher duty of care owed as higher voltages are transported” (Holtz v. Niagara Power Corp., 147 A.D.2d 857, 858, 538 N.Y.S.2d 80, citing Miner v. Long Is. Light. Co., 40 N.Y.2d 372, 378–379, 386 N.Y.S.2d 842, 353 N.E.2d 805). A fair interpretation of the evidence supports a finding that defendant breached that duty by failing to discover the unsafe clearance of its high voltage power lines. Issues of proximate cause and the foreseeability of intervening events arising from plaintiff's attempt to replace the coaxial cable were for the jury to resolve, and it cannot be said that the verdict is not supported by any fair interpretation of the evidence (see DaBiere v. Craig, 284 A.D.2d 885, 885–886, 727 N.Y.S.2d 535; Noviczski v. Homeyer, 238 A.D.2d 860, 861–862, 656 N.Y.S.2d 557). Contrary to defendant's contention, Troidle v. Adirondack Power & Light Corp., 252 N.Y. 483, 169 N.E. 654 is distinguishable from this case because in that case there was no evidence that the clearance of the power lines was a hazard. 77. Electric Utility exhibited a high degree of indifference in its treatment of the Homeowners and the Homeowner fires in this case. The Homeowners pleased with Electric Utility to replace the Transformer on Pole 19 after the second fire, fearing, correctly, that somehow Electric Utility as causing the fires. Electric Utility promised to do so, but then reneged on the promise. Electric Utility originally indicated it would replace the line with the failed splice with a new “un spliced” line. They reneged on that promise, evidently more concerned that it would be some admission of liability. Finally Electric Utility’s own policy called for them to conduct an investigation into this incident and to communicate the lessons learned to its organization. Certainly one lesson would be “always tape the Tap Covers”, along with reinforcing lessons learned about the potentially fatal dangers of clearance distance failures. (P. EBT, pages 47-50; Electric Utility Investigative Protocols, Exhibit “20”, pages A2-A6) Again, seeming because such an investigation would amount to an admission of liability, Electric Utility did not conduct such an investigation or draft the report called for in its operating procedure. WHEREFORE Plaintiff Homeowner Insurer prays that the motions of Cable Utility and Electric Utility be denied in all respects. Dated: July 31st, 2018 Northport New York. CREEDON & GILL P.C. By: ____________________ Peter J. Creedon 24 Woodbine Ave, Ste. 8 Northport, New York 11768 (631) 656-9220

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CREEDON & GILL P.C.    24 Woodbine Ave,  Ste 8.  Northport  New York  11768     ph.  (631) 656 9220    fx.  (631) 686 6718    info@creedongill.com