Supreme Court, Putnam County

Decided on April 15, 2026

Index No. 501749/2024

Victor G. Grossman, J.

[*1]

The following papers numbered 1 to 13 were read on the parties' motions for summary judgment:

Notice of Motion — Statement Material Facts -- Affirmation / Exhibits — Memorandum 1-4

Notice of Cross Motion — Response to Statement Material Facts — Affirmations (2) / Exhibits — Expert Affirmation / Exhibits -- Memorandum 5-10

Affirmation in Further Support and Opposition 11

Reply Memorandum — Reply Affirmation 12-13

Upon the foregoing papers it is ORDERED that the motions are disposed of as follows:

INTRODUCTION

On the morning of May 29, 2023, plaintiff Christopher Conlan was standing in his driveway at 130 Orchard Road, Mahopac, New York, when he was injured by debris from a blown fuse on utility pole #7421 owned and maintained by defendant New York State Electric & Gas Corporation ("NYSEG"). There is evidence that the fuse blew as the result of a short circuit -- which occurred at utility pole #6330, 2 to 3 blocks away on Birch Road -- in the 13,200 volt electrical distribution line. As for the nature and circumstances of the event that caused the short circuit, the parties have proffered no direct testimony, only inconsistent, bare bones records. A Carmel Police Department report states that the investigating officer was responding to a "wires down " call in the area of Birch Road. An "incident description" in a NYSEG EIRS Email Notification states:

"Pedestrian nearby a pole had a fuse link lodged in his arm when the fuse blew. Caused by a tree falling on power line ." (NYSEG 000001)

The NYSEG Incident Report, in response to the inquiry "How did the injury occur?", states:

"Transformer blew due to a short caused by tree branch and projected a fuse link that struck a nearby civilian pedestrian." (NYSEG 000005)

The NYSEG Pole Inspection Report bears the "Cause code":

"213-Conductor Down — Tree Outside ROW " (NYSEG 000010)

DEFENDANT'S EXPERT REPORT

NYSEG's expert, Thomas Boehly, Ph.D., opined that "a tree downed a power line at pole 6330 producing ground faults that blew a fuse on pole 7421. The fault current from this event was so intense that portions of the fuse were melted. A part of the melted fuse fell onto Mr. Conlan's arm, injuring him." The expert report further states:

Distribution Line Fuses

Downed power lines can present extreme electrical and fire hazards. In addition, ground faults (short circuits) can draw enormous amounts of current that can damage electrical supply equipment upstream of the fault. To remediate these hazards, fuses are installed at critical points along distribution circuits. Like fuses in an older house, distribution line fuses will 'blow' if too much current runs through them. This fuse acted to safely deenergize the downed power line thus protecting persons, property, and equipment.

For efficient operation and to provide clear evidence of a blown fuse, overhead utility power lines employ a Fuse Cutout apparatus to hold these fuses (Figure 7). A fuse cutout comprises three components: the cutout body, the fuse tube (holds the fuse), and the fuse link (fuse element and tail wire). The fuse element is inside the fuse tube which is held in the main body by a hinged and latched fixture. When the fuse link blows, it releases a latch and the fuse tube swings downward and opens the circuit (see Figure 7). The dangling fuse tube provides a clear blown-fuse indicator readily observed from the ground.

. . . . .

Typically, when a distribution-line fuse blows only the thin fuse element (see Fig. 11) melts and the crimp and tail wire remain intact. It is significant that, in this matter, the fault current was so intense that the tail wire also melted. The tail wire size is #6 AWG (American Wire Gauge) which has a fusing current of 650-700 Ampere. (Fusing current is that which is sufficient to fully melt the wire.) Fault currents on a 13,200-Volt line can be many thousands of amperes, well above that fusing current.

In this case, the tree forced the wire to make such good contact with the ground that extremely high fault current resulted. This overwhelmed the fuse and melted the tail wire apart. This freed the crimp section to fall onto Mr. Conlan's arm injuring him.

Conclusions

There is no evidence that Mr. Conlan's injury resulted from negligence by NYSEG. This accident was caused by a tree falling (an 'act of God') with significant force to knock a high-voltage NYSEG distribution line to the ground. This caused a severe fault (short circuit) to ground. The tree was located outside of the utility's right of way and beyond their responsibility for trimming. Because of the large extent of an electrical distribution system, trees downing electrical utility wires are a common occurrence despite routine inspection and trimming schedules. Moreover, trees from outside a utility's right of way [*2]can fall onto and down a power line. The utility normally has no notice of such events.

The subject fuse acted properly by interrupting the fault current and switching off the affected circuit. However, the fuse link was overwhelmed by the extreme fault current. This melted the tail wire freeing the crimp section causing it to fall onto Mr. Conlan, injuring him.

Electrical arc material from a blown fuse can damage nearby components or initiate new faults. To prevent this, fuse-cutouts are designed to direct arc material downward and away [from] equipment on the pole. Moreover, they are designed to dissipate the arc material rather than contain it. Again, the subject fuse operated as it was supposed to.

. . . . .

Plaintiff alleges that: "NYSEG does not take precautions to prevent fuse links breaking free and lodging in a person's body." The subject fuse link and its cutout assembly are of a design that is common to distribution lines throughout the world, representing an industry standard and convention. Fuse cutouts are available from several manufacturers, none of them provide features or devices that are designed to contain or collect ejected parts from blown fuses. NYSEG has tens of thousands of line fuses along its circuits. It is not feasible for NYSEG to independently add assemblies or devices to contain fuse-blast products. Such devices are not required by codes nor are they part of the industry standard for electrical utilities. Design and implementation of a system(s) to contain all possible failures would be exceedingly onerous and near impossible on the scale of NYSEG's distribution system.

The fallen tree was outside NYSEG's right of way. The subject NYSEG electrical lines had been inspected less than 14 months prior to this accident. The subject fuse operated as designed and expected. There was no defect or malfunction of that device.

(Boehly Expert Report dated January 16, 2026)

THE PARTIES' CONTENTIONS

Plaintiff asserts entitlement to summary judgment based on the doctrine of res ipsa loquitur. Defendant denies that res ipsa loquitur has any application to this case, and asserts

that the evidence establishes as a matter of law that Plaintiff's injury was not caused by any negligence on Defendant's part. Plaintiff has adduced no expert evidence in response to defense expert Boehly's report but challenges the factual foundation for his assertions with respect to the tree which allegedly fell on the high-voltage distribution line and caused the short circuit.

Resolution of the motions before the Court turns in large measure on the applicability of the doctrine of res ipsa loquitur and — if it applies — on the interplay between res ipsa loquitur and alleged alternative or intervening causes of injury.

RES IPSA LOQUITUR

A. The Doctrine

The Court of Appeals articulated the doctrine of res ipsa loquitur in Dermatossian v. NYCTA, 67 NY2d 219 (1986):

The doctrine of res ipsa loquitur represents an application of the ordinary rules pertaining to circumstantial evidence in negligence cases stemming from accidents having particular characteristics. When the doctrine is invoked, an inference of negligence may be drawn solely from the happening of the accident upon the theory that "certain occurrences con- tain within themselves a sufficient basis for an inference of negligence" (Foltis, Inc. v. City of New York, 287 NY 108, 116; see, Richardson, Evidence §93, at 68 [Prince 10th ed.]). The rule simply recognizes what we know from our everyday experience: that [*3]some accidents by their very nature would ordinarily not happen without negligence (see, e.g., Dittinger v. Isal Realty Corp., 290 NY 492; Griffin v. Manice, 166 NY 188). Res ipsa loquitur does not create a presumption in favor of the plaintiff but merely per- mits the inference of negligence to be drawn from the circumstances of the occurrence Richardson, Evidence §93, at 69 [Prince 10th ed.]). The rule has the effect of creating a prima facie case of negligence sufficient for submission to the jury, and the jury may — but is not required to — draw the permissible inference (see, Foltis, Inc. v. City of New York, supra, at pp. 115-120).

In New York it is the general rule that submission of the case on the theory of res ipsa loquitur is warranted only when the plaintiff can establish the following elements: " '(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) it must be caused by an agency or instrumentality within the exclusive control of the defendant; (3) it must not have been due to any voluntary action or contribution on the part of the plaintiff' " (Corcoran v. Banner Super Market, 19 NY2d 425, 430, mod on remittitur 21 NY2d 793 [quoting from Prosser, Torts §39, at 218 (3d ed)]). Only when these essential elements have been established, after the plaintiff has first demonstrated the nature of the instrumentality which caused the injury and its connection with the defendant (see, Manley v. New York Tel. Co., 303 NY 18), does a prima facie case of negligence exist (see, Weeden v. Armor Elevator Co., 97 AD2d 197, 203; Fogal v. Genesee Hosp., 41 AD2d 468, 476).

Dermatossian v. NYCTA, supra, 67 NY2d at 226-227.

B. Res Ipsa Loquitur and NYSEG

1. The Duty of Electric Utility Companies

Electric utility companies have an "affirmative duty . . . to exercise reasonable care in the operation of their power lines." Miner v. Long Island Lighting Company, 40 NY2d 372, 378 (1976). Quoting Braun v. Buffalo Gen. Elec. Co., 200 NY 484, 490, 492 (1911), the Miner Court wrote:

"While the convenience of electric and telephone wires is obvious and their maintenance should not be burdened with excessive liabilities, still it seems clear that a company maintaining dangerous wires should not be relieved on the ground of expense from the affirmative duty of exercising a reasonable degree of care to maintain proper insulation and thereby prevent accidents reasonably to be apprehended to those lawfully coming in the neighborhood of such wires.

. . . . .

"The fundamental and general principle that a company like respondent, if reasonably chargeable with knowledge, or in the exercise of reasonable prudence bound to antici- pate, that people may lawfully come in close proximity to its wires either for purposes of business or pleasure, is under obligation to exercise care to keep the latter in a safe condition is abundantly established [cit.om.]."

. . . "The question in each case is the character of the circumstances which require the exercise of those precautions." One very significant circumstance is the voltage charge; there is, to be sure, a correspondingly higher duty of care owed as higher voltages are transported [cit.om.]. Another circumstance, equally significant, is the proximity and accessibility of power lines to the public where the opportunity and likelihood of contact therewith is more acute [cit.om.]. Here, where high voltage lines were strung between closely spaced private residences, [*4]the risk to be foreseen was of the highest order; thus, the corresponding duty devolving upon the power company must be considered equally great.

Miner v. Long Island Lighting Company, supra, 40 NY2d at 379.

The circumstances here present gave rise to a duty of a high order on the part of NYSEG to exercise due care to protect the public from contact with, and resulting injury from, the instrumentalities of their electric distribution network. The evidence shows inter alia that the power lines carried electricity of a very high voltage; that the power lines, utility poles and fuses were erected in a populous residential neighborhood where "the opportunity and likelihood of contact therewith is more acute"; that the power lines and utility poles were surrounded by trees; that trees regularly fall and impact power lines; that short circuits and blown fuses — whether caused by trees or otherwise -- are a not uncommon occurrence; and that the design of the fuses is such that fuse debris that has melted due to heat from a short circuit is projected away from the utility pole to the area below. There is, at the very least, a question of fact whether in such circumstances an accident is "reasonably to be apprehended to those lawfully coming in the neighborhood of such wires" and associated instrumentalities (i.e., the utility poles and fuses).

2. Res Ipsa Loquitur: The Fuse Debris

As noted above, Plaintiff asserts inter alia that NYSEG was negligent in failing to take precautions to prevent fuse links breaking free and lodging in a person's body. However, defense expert Boehly demonstrated that the subject fuse was designed in accordance with industry standard and convention; that the fuse operated as designed and expected; that manufacturers do not provide devices that are designed to contain or collect ejected parts from blown fuses; that it is not feasible for NYSEG to independently add assemblies or devices to contain fuse-blast products in the tens of thousands of line fuses along its circuits; and that such devices are not required by codes nor are they part of the industry standard for electrical utilities. Plaintiff has proffered no expert evidence to the contrary.

Plaintiff may not on this particular issue rely on the doctrine of res ipsa loquitur. As the Court of Appeals has recognized, the rule is predicated on "what we know from our everyday experience" (see, Dermatossian v. NYCTA, supra) and does not apply where "specialized knowledge and experience [is] necessary to reach a conclusion that the occurrence would not normally take place in the absence of negligence . . . " See, States v. Lourdes Hospital, 100 NY2d 208, 212 (2003). Citing the Restatement of Torts, the States Court continued:

"In the usual case the basis of past experience from which this conclusion may be drawn is common to the community, and is a matter of general knowledge, which the court recognizes on much the same basis as when it takes judicial notice of facts which everyone knows. It may, however, be supplied by the evidence of the parties; and expert testimony that such an event usually does not occur without negligence may afford a sufficient basis for the inference. Such testimony may be essential to the plaintiff's case where, as for example in some actions for malpractice, there is no fund of common knowledge which may permit laymen reasonably to draw the conclusion" (Restatement [Second] of Torts §328D, Comment d; see also Prosser and Keeton, Torts §39, at 247 [5th ed]).

Id., 100 NY2d at 212-213.

Whether or not fuse links could break free and lodge in Plaintiff's body in the absence of negligence cannot be known from everyday experience. There is no fund of common knowledge that would permit a lay juror to draw an inference of negligence solely from the happening of [*5]this event. Specialized technical knowledge concerning electricity and the parameters under which electric utilities operate is required to provide a sufficient basis for an inference of negligence in the design of the fuse or the adequacy of protection against falling fuse debris.

The deficiency may not be supplied by the doctrine of res ipsa loquitur itself. In tacit recognition thereof, Plaintiff upon reply has focused instead on the event which caused the short circuit. To that issue we now turn.

3. Res Ipsa Loquitur: The Cause of the Short Circuit

New York Caselaw

The facts of this case are not unlike those of Allstate Insurance Company v. Long Island Lighting Company, 172 Misc 2d 123 (Dist. Ct. Nassau Co. 1997). In that case, the evidence showed that after a loud "popping noise" similar to an explosion, something resembling a "fireworks show" emanated from a LILCO utility pole. Sparks and other debris fell and damaged the vehicle of Allstate's subrogor. A LILCO electrical services specialist testified that something similar to a party balloon may have become lodged between two electric wires strung from the utility pole, causing a short circuit and the corresponding explosion. See, id., at 124. The Court applied the doctrine of res ipsa loquitur over LILCO's objection that the balloon was "an intervening factor relieving them from liability." Id., at 124-125. The Court wrote:

The defendant's witness . . . did not see the cause of the "fireworks" or the mylar balloon rise and hit the electric lines. His testimony cannot support the conclusion that the mylar balloon caused the "fireworks", explosion and damages. His cross examination established defendant LILCO's failure to provide protective wiring or other measures to prevent the "fireworks". The evidence produced does not support defendant's contention that third parties had access to the electric pole or that third parties may have affected LILCO's equipment (highly speculative). No proof was presented that the mylar balloon rose up and came in contact with the wires or that a balloon caused the "fireworks" (also speculative) . . . .

The doctrine of res ipsa loquitur is applied here since the explosion and subsequent property damage could not have ordinarily happened except for the negligence of the defendant . . . Defendant has not rebutted the inference of negligence with any reasonable theory, nor offered any credible proof of an intervening factor. The explosion of elec-trical lines is not an event which normally occurs absent some negligence on the part of defendant in operating and maintaining the electrical equipment on and between poles . . .

Id., at 125.

Defendant NYSEG, however, relies on Berliner v. Consolidated Edison, Inc., 171 AD3d 492 (1st Dept. 2019), another case bearing a resemblance of sorts to the case at bar. In Berliner, a tree fell onto overhead utility wires during Superstorm Sandy, causing a utility pole to snap, fall and strike the plaintiffs. No defect was found in the utility pole, and Con Ed's evidence showed that the pole "complied with all applicable government and industry standards for that location and anticipated forces, but the extreme forces created by the falling tree exceeded all industry standards." Id., at 492-493. Affirming a dismissal of the complaint on summary judgment, the Court held: "Since such an accident may occur absent negligence, and the pole was on a public highway, not within the exclusive control of Con Ed, when subjected to hurri-cane conditions, plaintiffs cannot rely on the doctrine of res ipsa loquitur to raise an issue of fact as to negligence (see Dermatossian . . . )." Id., at 493.FN1

In Conderman v. Rochester Gas & Electric Corp., 180 Misc 2d 8 (Sup. Ct. Monroe Co. 1998), aff'd as modified 262 AD2d 1068 (4th Dept. 1999), 14 electric poles fell during "an unusually wintery 50-mile-per-hour wind and ice storm." One plaintiff was injured by a falling pole; two others were injured when live wires fell on their vehicle. Id., 180 Misc 2d at 9. The fallen poles having been disposed of it could not be determined whether they were defective. The Court held that the plaintiffs were entitled to invoke res ipsa loquitur, and the defendants were entitled to rebut the inference of negligence with "proof that the accidents were caused by the unforeseeable intervening storm sufficiently strong enough to knock over even non-defective wood poles." Id., 180 Misc 2d at 15-16.

The foregoing caselaw involves the interplay between res ipsa loquitur and alleged alternative or intervening causes of injury. Since New York caselaw on this issue in the context of electric utilities is limited, it may be useful to view it through the interpretive lens of authority from other jurisdictions.

Caselaw From Other Jurisdictions

In Wells v. Nespelem Valley Electric Cooperative, Inc., 13 Wash.App.2d 148 (Ct. App. 2020), the Court wrote:

The public reasonably expects utilities to deliver electricity in a safe manner, capable of withstanding normal tests of time and exposure to the elements. See Scott, 178 Wash. at 656-57, 35 P.2d 749 (Utility is expected to account for normal, foreseeable interactions with power lines.) While an unusual weather event or other interference may defeat an inference of negligence under the doctrine of res ipsa loquitur, the mere possi-bility of a defense does not mean a plaintiff has failed to make out a prima facie case for the jury. See Pacheco, 149 Wash.2d at 440-41, 69 P.3d 324 (A "plaintiff is not required to 'eliminate with certainty all other possible causes or inferences' in order for res ipsa loquitur to apply.")FN2 [cit.om.] Instead, the claims and defenses must be resolved [*6]by a trier of fact.

Id., 13 Wash.App.2d at 156-157 (emphasis added).

The Court in Koch v. Norris Public Power District, 10 Neb.App. 453 (Ct.App. 2001) conducted an extensive review of authority relating to the application of res ipsa loquitur in the context of falling power lines. It started with secondary authorities:

The doctrine of res ipsa loquitur finds frequent application in electrical cases where the circumstances of the accident are such as to create a presumption or inference of negligence . . . .So the fact that wires carrying a dangerous current of electricity have broken or sagged or became detached from their poles and caused injury is generally held to raise a presumption of negligence, although there is authority to the effect that the doctrine does not apply in such case.FN3

29 C.J.S. Electricity §66(2) at 1145-47 (1965).

It is declared to be a matter of common knowledge that high-voltage wires do not ordinarily fall upon the highway without negligence on the part of those in control of such wires, and in order to overcome the prima facie case presented when injury occurs by coming in contact with a fallen wire, the company must make a showing of the condition of the wire at the time it fell, as well as a showing of proper installation.

27A AmJur2d Energy and Power Sources §445 at 332 (1996).

Koch v. Norris Public Power District, supra, 10 Neb.App. at 460-461. Upon a thorough review of extent caselaw (id., pp. 461-463), the Court concluded:

The thread that runs through all of the above-cited cases, which is all the cases we found on the subject, is that powerlines do not normally fall without fault on behalf of the company that maintains them and that res ipsa loquitur is applied in the absence of a substantial, significant, or probable explanation (but this standard seems to vary from jurisdiction to jurisdiction). Generally in the cases which hold the doctrine does not apply, the reasons cited for the conclusion have to do with powerlines not being under the exclusive control of the power company, which is really a consideration under the second element of res ipsa loquitur, or that the powerline was caused to be down by the act of the plaintiff, of nature, or of some third party, which is a reason usually treated under the third element of res ipsa loquitur. However, all of the above-cited cases seem to be based upon the proposition that, and the majority rule seems to be, if a powerline falls [*7]without explanation, then the fall is attributed to the power company if that line is under the exclusive control of the power company. In other words, powerlines do not, in the ordinary course of events, fall in the absence of negligence.

Koch v. Norris Public Power District, supra, 10 Neb.App. at 463 (emphasis added).

Finally, in Rocca v. Tuolumne County Electric Power & Light Co., 76 Cal.App. 569 (Dist. Ct. of App. 1926), the Court addressed the duty of electric utilities where their power lines are vulnerable to falling trees or tree branches. Once again, the Court began its analysis with secondary authority:

"Electric companies, not being insurers against accidents from their appliances, are not liable for injuries resulting from an act of God or inevitable accident. The basis of the company's liability is its negligence; but the sagging of wire, under the doctrine of res ipsa loquitur, is generally held to make a prima facie case of negligence which requires the company to give evidence that the sagging was not the result of its negligence.*** Whenever electric or other wires are maintained in such a location that it may be reasonably anticipated that the sagging thereof will cause injury, the one maintaining the wire must use due care to prevent the sagging thereof. Due or commen-surate care in the case of high-tension electric currents means a very high degree of diligence. If a wire strung along or across a highway is negligently permitted to sag so that a traveler is injured thereby as a general proposition, the company maintaining the wire is liable for the resultant damages."

Curtis on the Law of Electricity, §497.

Rocca v. Tuolumne County Electric Power & Light Co., supra, 76 Cal.App. at 579 (emphasis added).

In Rocca, the power line was struck by a pine tree located on neighboring property. The Court wrote:

[This] does not relieve the company from liability for failure to protect its wires or take the ordinary precautions which the circumstances demanded. In Hagerstown & Frederick Railway Company v. State of Maryland, for use of Bruce A. Weaver, 115 A. 783, 139 Md, 507 . . . , the law on this question is thus stated: "An electric company maintaining high-tension wires beside a highway is not relieved from the duty of protecting the wires against the decayed limb of a tree which overhangs them, by the fact that they are on its own property, and the tree is on private property of another, if the fall of the limb is likely to break the wires and endanger persons passing along the highway."

Rocca, supra, 76 Cal.App. at 579-580 (emphasis added). The Rocca Court proceeded to a survey of caselaw involving power lines struck by trees:

In Warren v. City Electric Railway Co., 104 N.W. 613, 141 Mich. 298, where a telephone wire received a dangerous current from a trolley wire being pressed down onto a trolley wire by a limb of a tree which was broken down by a severe storm, the court in consider- ing the subject of inevitable accident, and the claim that the wire was not properly con- structed, uses this language: "In this connection it is urged that the proximate cause of the injury was not the want of insulation, nor the failure to guard the span wire, but it was the breaking of the tree. It is generally the case that an accident is the result of concurring causes. If the rain and snow never fell and the wind never blew, wires would be less likely to fall and break. *** All of these were things to be anticipated and [*8]guarded against. If this were not done to the extent that a prudent man would do it, there was a failure of duty, which might be a concurring cause of the accident, making defendant liable."

Rocca, supra, at 581 (emphasis added)

In Spires v. Middlesex & Monmouth Electric Light, Heat & Power Co., 57 A. 424, 70 N.J. Law 355, where a wire was broken by a falling limb from a tree, the court considered the question of the duty of the company to guard against such occurrences and to protect its wires from such possibilities, and discussed the question in this manner: "We think the finding of the jury that the company was negligent was justified by the facts shown. The wire which was broken crossed the highway diagonally at the place where the accident happened. The parting of the wire was caused by the falling upon it of a heavy limb which had broken from a tree which stood some feet away . . . The likely-hood of such a wire being broken by the falling of the limb of a tree upon it is much lessened by a guard wire stretched over it and running parallel with it, and juries are justified, in proper cases, in holding that such a safeguard is due to the public, and that its absence speaks negligence."

Rocca, supra, at 581-582.

In Heidt v. So. Tele. & Telegraph Co., 50 S.E. 361, 122 Ga. 474, a case having to do with the falling of a tree by a violent storm, the facts showing that it was one which could not have been reasonably guarded against, the court stated the law applicable, following the rules hereinbefore laid down, to wit: "The electric light company, in the construction of its line, was bound to adopt all reasonable precautions for the protection of the public, to prevent casualties which might be reasonably anticipated. This obligation would require it to anticipate the influence of the ordinary storms customary to the locality. But if the falling of the electrically charged wire was caused by a storm of unusual severity, which could not have been reasonably foreseen and the consequences guarded against, the company would not be liable, if it was not otherwise negligent."

Rocca, supra, at 582.

In the case of Smith v. San Joaquin, etc., Power Corp., 211 P. 843, 59 Cal.App. 647, the recital of facts shows that an electric power line strung along the side of a public highway was broken by the leaves of a large palm tree blown against the wire during the storm, and the court said: "The defendant pleaded in its answer, and thereafter offered to prove, facts showing or tending to show that the wire which the plaintiff touched was properly in place the night before, that a wind arose, and the leaves of a large palm were blown over against the wire and broke it, and that such facts constituted an act of God. If the facts stated constituted an act of God the defendant should have been permitted to show the same as a defense. However, the respondent contends that the alleged facts do not show an act of God within the proper meaning of that rule. [cit.om.] In this behalf he contends that if the palm tree stood in such a position as to endanger the defendant's wire that the defendant should have properly protected its wire therefrom and, in failing to do so, the omission was an act of neglect on the part of the defendant, not an act of God. This contention is supported by the authorities. [cit.om.]"

This case applies the rule of res ipsa loquitur . . . .

Rocca, supra, at 582-583.

Based on its review of applicable authority, the Rocca Court concluded that (1) the [*9]doctrine of res ipsa loquitur applied, (2) the jury's finding that the storm which caused the tree to fall was not unusual, and therefore one that should reasonably have been apprehended, was binding on appeal, and (3) the question of negligence on the part of the utility company in not properly maintaining its wires and guarding them against dangers reasonably to be apprehended was properly submitted to the jury. Id., at 584-585.

Synthesis: The Applicable Legal Principles

Some basic principles bearing on the case at bar may be distilled from the caselaw discussed above.

• Power lines do not normally fall without fault on the part of the utility company that installs and maintains them.

• Proof of falling power lines, under the doctrine of res ipsa loquitur, is generally held to establish a prima facie case of negligence which requires the utility company to give evidence that such was not the result of its negligence.

• Injury resulting from trees falling on power lines in populous areas is a matter to be anticipated and guarded against, regardless of whether the tree is located on the utility company's property or right-of-way.

• In such cases, res ipsa loquitur is applied in the absence of a substantial, significant, or probable explanation for the accident independent of negligence on the part of the utility company.

The New York caselaw referenced above may be accounted for by an application of these fundamental principles bearing on the interplay between res ipsa loquitur and alleged alternative or intervening causes of injury:

• Res ipsa loquitur was not applied in Berliner v. Consolidated Edison, Inc., supra, because the defendant utility company provided very substantial evidence of a non-negligent explanation for the falling utility poles, to wit: the poles were not defective; they complied with all applicable government and industry standards for anticipated forces; the falling tree created extreme forces which exceeded all industry standards; and the accident resulted from extreme weather conditions caused by Superstorm Sandy.

• Conversely, res ipsa loquitur was applied in Allstate Insurance Company v. Long Island Lighting Company, supra, because the defendant utility company had not offered any reasonable theory or credible proof to rebut the inference of negligence arising from an accident (though not one involving falling utility poles or power lines) that could not ordinarily have happened except for the utility's negligence.

• In Conderman v. Rochester Gas & Electric Corp., supra, the Court charted a middle course because evidence relevant to a determination of negligence (i.e., the fallen utility poles) had been destroyed: res ipsa loquitur was applied because utility poles and wires do not ordinarily fall in the absence of negligence, but the defendant utility company was entitled to rebut the inference of negligence with proof that the accident was caused by a storm strong enough to knock over even non-defective poles.

SUMMARY JUDGMENT

The proponent of a summary judgment motion "must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case." Winegrad v. New York University Medical Center, 64 NY2d 851, 853 (1985). The movant's failure to meet its burden of proof "requires denial of the motion, regardless of the sufficiency of the opposing papers." Winegrad v. New York University [*10]Medical Center, supra. In this case, both parties misapprehend the nature of their respective burdens of proof on summary judgment.

A. Plaintiff's Motion

A proper invocation of res ipsa loquitur means only that the plaintiff has made a prima facie case of negligence entitling the case to go to the jury. See, States v. Lourdes Hospital, supra, 100 NY2d 208 (2003). Res ipsa loquitur creates merely a permissive inference of negligence from the circumstances of the injury-producing event. See, Morejon v. Rais Const. Co., 7 NY3d 203 (2006). Even in the absence of rebuttal, the jury is not bound to draw the inference of negligence. See, Kambat v. St. Francis Hospital, 89 NY2d 489 (1997). Since res ipsa loquitur is a form of circumstantial evidence that merely provides a permissible inference of negligence rather than a presumption, its application may serve as the basis for an award of summary judgment to plaintiff only in "the rarest of cases" where "the plaintiff's circumstantial proof is so convincing and the defendant's response is so weak that the inference of defendant's negligence is inescapable." See, Morejon v. Rais Const. Co., supra; Barney-Yeboah v. Metro-North Commuter Railroad, 25 NY3d 945, 946 (2015); 1A NY PJI3d 2:65 at 468-469 (2026).

Plaintiff's motion for summary judgment rests exclusively on his invocation of the doctrine of res ipsa loquitur. Plaintiff's reliance on that doctrine for an inference of negligence in the design of the blown fuse or the adequacy of protection against falling fuse debris has been soundly rebutted, without rejoinder, by defense expert Boehly. As for the nature and circum- stances of the event leading to the short circuit which caused the blown fuse, the record before the Court is practically barren. Plaintiff has certainly not demonstrated as a matter of law that the short-circuit was caused by Defendant's negligence, and his invocation of res ipsa loquitur — which creates only a permissive inference of Defendant's negligence -- cannot fill the void.

In short, it simply cannot be said that this is the rare case where Plaintiff's circumstantial proof is so convincing that the inference of NYSEG's negligence is inescapable. Accordingly, Plaintiff's motion for summary judgment must be denied regardless of the sufficiency of Defendant's opposition.

B. Defendant's Motion

Defendant's approach to summary judgment, premised on the errant notion that Plaintiff may not invoke the doctrine of res ipsa loquitur herein, is equally unavailing.

As is stated hereinabove, the circumstances here present gave rise to a duty of a high order on the part of NYSEG to exercise due care to protect the public from contact with, and resulting injury from, the instrumentalities of their electric distribution network. The evidence shows inter alia that the power lines carried electricity of a very high voltage; that the power lines, utility poles and fuses were erected in a populous residential neighborhood where "the opportunity and likelihood of contact therewith is more acute"; that the power lines and utility poles were surrounded by trees; that trees regularly fall and impact power lines; that short circuits and blown fuses — whether caused by trees or otherwise -- are a not uncommon occurrence; and that the design of the fuses is such that fuse debris that has melted due to heat from a short circuit is projected away from the utility pole to the area below. There is a question of fact whether in such circumstances an accident is "reasonably to be apprehended to those lawfully coming in the neighborhood of such wires" and associated instrumentalities (i.e., the utility poles and fuses).

As is further shown hereinabove, proof of falling power lines is under the doctrine of res ipsa loquitur generally held to establish a prima facie case of negligence on the part of the utility [*11]company that installs and maintains them.FN4 Defendant was accordingly required to come forward with evidence that the alleged falling of power lines and resulting short circuit was not the result of its negligence; and res ipsa loquitur applies in the absence of a substantial, significant, or probable explanation for the accident independent of Defendant's own negligence.

Once again, the record before the Court concerning the nature and circumstances of the event leading to the short circuit which caused the blown fuse is practically barren. Defendant has proffered only bare bones and inconsistent records: one stating that the short circuit was caused by "a tree falling on power line", the second that a "[t]ransformer blew due to a short caused by tree branch", and the third making laconic references to "conductor down" and "tree outside ROW." The mere fact, if such it be, that the tree which impacted Defendant's power lines was not on its right-of-way does not carry the day, for injury resulting from trees falling on power lines in populous areas was a matter to be anticipated and guarded against, regardless of whether the tree was located on Defendant's property or right-of-way. Defendant adduced no evidence concerning the condition of this particular tree, concerning branches overhanging the power lines, if any, or concerning its tree trimming history in the vicinity of the downed power lines. In the absence of some such evidence, Defendant failed to rebut the inference of negli- gence arising from the doctrine of res ipsa loquitur and establish prima facie that the short circuit and Plaintiff's resulting injury were not proximately caused by Defendant's own negligence.

Accordingly, Defendant's motion for summary judgment must be denied regardless of the sufficiency of Plaintiff's opposition.

It is therefore

ORDERED, that Plaintiff's motion for summary judgment is denied, and it is further

ORDERED, that Defendant's motion for summary judgment is denied.

The foregoing constitutes the decision and order of the Court.

Dated: April 15, 2026

Carmel, New York

ENTER

HON. VICTOR G. GROSSMAN, J.S.C.