A unanimous Appellate Division, First Department, panel has reinstated a lawsuit against a contractor accused of causing a pedestrian to suffer an electric shock when stepping on a manhole cover, though it has affirmed its dismissal as to Consolidated Edison. Lloyd Smith, was shocked at the intersection of Broadway and White Street in lower Manhattan. An electrical contractor, Petrocelli Electric Co., was doing work nearby, drawing power from Con Ed.

Manhattan Supreme Court Justice Martin Shulman (See Profile) dismissed the case, holding that there was no evidence the defendants were negligent. The panel reinstated it against Petrocelli under the common law doctrine of res ipsa loquitur, which holds that negligence can sometimes be inferred from the nature of an accident itself. To show negligence under res ipsa loquitur, a plaintiff must prove the accident is of a kind that does not normally occur without negligence, and that the agency causing the accident is exclusively controlled by the defendant.

"As for the first element, since a pedestrian is generally not subject to electric shock by walking on a manhole cover in the roadway absent negligence, defendants’ argument that there is no evidence of any dangerous condition caused by them is unavailing," the panel wrote in Smith v. Consolidated Edison, 110504/06. The panel said Con Ed could not be responsible for the accident because its only connection was that it provided electricity to Petrocelli, so it affirmed the dismissal as against it. But the panel of Justices Angela Mazzarelli (See Profile), Rolando Acosta (See Profile), David Saxe (See Profile), Dianne Renwick (See Profile) and Darcel Clark (See Profile) found there was a question of fact for a jury as to whether Petrocelli was responsible.