author: Jasen, J.

text:
    In the Matter of the Claim of Mary Mott, Appellant, v Duncan Petroleum Trans. et al., Respondents. Workers’ Compensation Board, Respondent.
    Argued October 10, 1980;
    decided November 18, 1980

      POINTS OF COUNSEL

      Seymour J. Bernstein for appellant.
    I. New York law controls the marriage relationship of the parties. (Matter of Lieblein v Charles Chips, Inc., 32 AD2d 1016, 28 NY2d 869; Shea v Shea, 294 NY 909; De Milio v New York State Thruway Auth., 15 AD2d 27; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44; Schoenbrod v Siegler, 20 NY2d 403; Matter of Haffner, 254 NY 238.) II. The order of the court below is not supported by the law of New York. (Matter of Merritt v Chevrolet Tonawanda Div., Gen. Motors Corp., 50 AD2d 1018; Matter of Pecorino, 64 AD2d 711.)

      Albert R. Couchman, Jr., for North River Insurance Company, respondent.
    I. New York law governs the relationship of the parties and, therefore, a valid common-law marriage cannot be contracted. (Babcock v Jackson, 12 NY2d 473; Taylor v Taylor, 164 Misc 401; Andrews v Andrews, 166 Misc 297.) II. The actions of Mary Mott and decedent in the State of Georgia did not effect a valid common-law marriage under the laws of that State.
   OPINION OF THE COURT

Jasen, J.

On this appeal claimant-appellant Mary Mott asserts that she is the widow of John Mott by virtue of a common-law marriage allegedly contracted in the State of Georgia and seeks to recover death benefits pursuant to the Workers’ Compensation Law. (Workers’ Compensation Law, § 16.) The Workers’ Compensation Board, however, denied the benefits sought upon the ground that John and Mary Mott were never legally married. The issue on this appeal is whether the Workers’ Compensation Board erred in failing to properly apply the law of the State of Georgia in determining the Motts’ marital status.

In 1964, Mary and John Mott took up residence together in Islip, New York. From that time until the time of John’s death in a work-related accident in 1973, the Motts constantly lived together, in claimant’s words "as husband and wife”. During the course of this relationship, the Motts conducted much of their legal and financial business as if they were in fact married. Bank loans were apparently applied for together, certain tax records adjusted, and the like. Indeed, upon John’s death, Mary Mott was awarded limited letters of administration as John Mott’s "widow”. However, notwithstanding the above incidents of "marriage”, it is undisputed that John and Mary Mott were never ceremonially married in New York or elsewhere. Claimant concedes as much.

Claimant instead predicates her claim for death benefits upon the existence of an alleged common-law marriage, contracted in the State of Georgia. She testified at the hearing of this matter that she and Mr. Mott traveled to Georgia on several occasions, staying there for weeks at a time with her daughter. She claims that the couple intended to take up permanent residence in Georgia, to start a business there, and to make Georgia their home, although it is undisputed that none of these intentions were ever fulfilled. Claimant also asserts that while in Georgia she and decedent lived together as husband and wife and represented themselves to the local community as such. On the basis of this evidence, claimant concludes that a valid common-law marriage was effected in Georgia.

The Workers’ Compensation Board, however, concluded that John and Mary Mott were not legally married and, as a result, denied Mary’s claim for death benefits. The board found that "the decedent and Mary Mott were residents of New York State” and held that "the parties marital status must be determined under New York State Law which does not recognize common law marriages, with the exception of a common law marriage previously declared valid in another State.” The board then concluded that "[t]he parties’ trip to the State of Georgia was merely a visit and the parties returned to New York State’s jurisdiction without having effected a common law marriage in Georgia.” The Appellate Division, finding that the board’s determination was supported by substantial evidence, affirmed, one Justice dissenting. There should be a reversal.

While it is clearly within the province of the Workers’ Compensation Board to decide, as a factual matter, whether claimant and John Mott were ever legally married, the board must weigh such facts as it finds against a proper legal standard. Thus, before the court can undertake a review of the administrative fact-finding process which resulted in a finding that the Motts were not married, we must first determine if a proper legal standard was used in arriving at this conclusion. If an improper legal standard was used, review of the fact-finding process is impossible.

It has long been settled law that although New York does not itself recognize common-law marriages (L 1933, ch 606; Domestic Relations Law, § 11; see, e.g., Matter of Benjamin, 34 NY2d 27, 30), a common-law marriage contracted in a sister State will be recognized as valid here if it is valid where contracted (see, e.g., Matter of Watts, 31 NY2d 491, 495; Shea v Shea, 294 NY 909; Matter of Pecorino, 64 AD2d 711). The law to be applied in determining the validity of such an out-of-State marriage is the law of the State in which the marriage occurred. (Matter of Watts, 31 NY2d 491, supra; Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, 47.) Moreover, this rule has been specifically applied to cases involving entitlement to workers’ compensation death benefits. (Matter of Lieblein v Charles Chips, Inc., 32 AD2d 1016, decision on remand affd 28 NY2d 869.) Thus, in determining whether claimant is entitled to death benefits as the widow of John Mott, the Workers’ Compensation Board must first determine whether the Motts were married under the law of the State of Georgia.

Common-law marriages are legal in Georgia and have been recognized in that State since at least 1860. (Brown v Brown, 234 Ga 300.) While the burden of proving the existence of such a marriage is on the party asserting its validity (id.; see, also, Drawdy v Hesters, 130 Ga 161), all that need be shown to establish a marriage is that the parties are able to contract, that a contract of marriage was made and that the marriage was consummated according to the law. (Ga Code Ann, § 53-101.)

Proof of the existence of a contract of marriage must include proof of a "present intent to marry” in the State of Georgia. (Peacock v Peacock, 196 Ga 441.) However, such proof can consist of circumstantial evidence including "the act of living together as man and wife, holding themselves out to the world as such, and repute in the vicinity and among neighbors and visitors that they are such, and indeed all such facts as usually accompany the marriage relation and indicate the factum of the marriage.” (Murray v Clayton, 151 Ga App 720, 721, quoting Clark v Cassidy, 62 Ga 407, 411.) No public or private de facto ceremony is required (Alberson v Alberson, 237 Ga 622) and for all that appears, no minimum stay in Georgia is required (Ga Code Ann, § 53-101). In sum, Georgia law appears to be quite liberal in allowing such unions, subject only to the difficulty which a litigant may have in convincing a fact finder of the existence of an actual contract.

Based upon the foregoing review of the law of Georgia and of this State,, it appears that the determination of the Workers’ Compensation Board was premised upon an erroneous view of applicable law. First, the board appeared to assume that New York recognizes only out-of-State marriages "previously declared valid in another state.” As noted earlier, this view is too limited. (See, e.g., Matter of Watts, 31 NY2d 491, 495, supra.) Second, the board also assumed that a mere "visit” to Georgia could not result in a valid Georgia marriage. Given the apparent liberality of the Georgia rule with respect to common-law marriages, this too was error. Finally, the board failed even to consider the behavior of the parties in New York as evidence of their intent to marry. While such evidence is not alone determinative, and is of course secondary to evidence of the parties’ conduct in Georgia, it is at the very least relevant to show whether the parties viewed themselves as man and wife upon their trip to Georgia. (Cf. Matter of Farber v U. S. Trucking Corp., 26 NY2d 44, supra.)

Having concluded that the board applied an improper standard of law on the issue of marital status, we deem it inappropriate to express our view as to whether the evidence in this case would support a finding of a common-law marriage had the proper legal standard been applied. This question must be decided by the administrative agency. The case must, therefore, be remanded to the Workers’ Compensation Board for a redetermination of the factual question of whether claimant and John Mott effected a common-law marriage in the State of Georgia, based upon the legal standards enunciated herein. (See Matter of Lieblein v Charles Chips, Inc., 32 AD2d 1016, decision on remand affd 28 NY2d 869, supra.)

Accordingly, the order of the Appellate Division should be reversed, with costs, and the matter remitted to the Appellate Division, Third Department, with directions to remand for further proceedings in accordance with this opinion.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order reversed, etc.


source: Caselaw Access Project

author: Jones, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v Warner-Lambert Company, Doing Business Under the Name of Warner-Lambert Co., American Chicle Division, Arthur Kraft, Ed Harris, James O’Mahoney and John O’Rourke, Appellants.
    Argued April 28, 1980, October 9, 1980;
    decided November 20, 1980

      POINTS OF COUNSEL

      Leonard Garment, Judah Gribetz, Douglas M. Parker, John P. Hederman, William P. Laino and Robert Kasanof for Warner-Lambert Company, appellant.
    I. The Grand Jury did not receive evidence legally sufficient to sustain an indictment for criminally negligent homicide. (People v Stewart, 40 NY2d 692; People v Dlugash, 41 NY2d 725; People v Kibbe, 35 NY2d 407; People v Brengard, 265 NY 100; People v Eckert, 2 NY2d 126; People v Tyler, 62 AD2d 146, 46 NY2d 264; People v Shanklin, 59 AD2d 588; People v Miller, 54 AD2d 742; Lipinsky v City of New York, 11 Misc 2d 734, 8 AD2d 600; Ingersoll v Liberty Bank of Buffalo, 278 NY 1.) II. The court below erroneously reinstated the indictment’s six counts of reckless manslaughter. (People v Haney, 30 NY2d 328; People v Montanez, 41 NY2d 53; People v La Paz, 95 Misc 2d 756; People v Steinberger, 89 Misc 2d 419; People v Kent, 81 Misc 2d 918; People v Leichtweis, 59 AD2d 383; People v Mendez, 63 AD2d 69.)

      Andrew M. Lawler, Jr., and Dennis E. Milton for James O’Mahoney and another, appellants.
    The evidence before the Grand Jury was not legally sufficient to support the indictment as to James O’Mahoney and John O’Rourke. (People v Montanez, 41 NY2d 53; People v Stanfield, 36 NY2d 467; People v Haney, 30 NY2d 328; People v Chrisholtz, 55 Misc 2d 309; People v Joseph, 11 Misc 2d 219; People v Eckert, 2 NY2d 126; People v Cruciani, 70 Misc 2d 528, 44 AD2d 684; People v Taylor, 31 AD2d 852.)

      Stanley S. Arkin, Mark S. Arisohn and Arthur T. Cambouris for Arthur Kraft and another, appellants.
    I. The evidence presented to the Grand Jury was legally insufficient to support the charges of criminally negligent homicide against appellants Kraft and Harris. (People v Bearden, 290 NY 478; People v Angelo, 246 NY 451; People v Haney, 30 NY2d 328; People v Pinckney, 38 AD2d 217, 32 NY2d 749; People v Cruciani, 44 AD2d 684, 36 NY2d 304; People v Bronzino, 25 AD2d 685; People v Bonaventura, 271 App Div 900; People v Tate, 87 Misc 2d 6; People v Eckert, 2 NY2d 126; United States v Park, 421 US 658.) II. The counts of criminally reckless homicide should be dismissed for legal insufficiency even if the Grand Jury evidence is found sufficient to support the lesser counts of the indictment.

      John J. Santucci, District Attorney (Charles N. Walsh, Barry A. Schwartz and A. Brent Blacksburg of counsel), for respondent.
    I. The evidence before the Grand Jury was legally sufficient to establish the commission by defendants of the crimes of reckless and criminally negligent homicide. (Matter of Jaffe v Scheinman, 47 NY2d 188; People v Frisbie, 40 AD2d 334; People v Leichtweis, 59 AD2d 383; People v Sabella, 35 NY2d 158; People v Connelly, 35 NY2d 171; People v Howell, 3 AD2d 153, 3 NY2d 672; People v Mayo, 36 NY2d 1002; People v Eckert, 2 NY2d 126; People v Sacco, 64 AD2d 324; People v Donahue, 309 NY 6; Matter of Clark v Jefferson County Ct., 41 AD2d 898.) II. The court below properly reinstated the entire indictment. (People v Stanfield, 36 NY2d 467; People v Fitzgerald, 45 NY2d 574; People v Perez, 45 NY2d 204; People v Leichtweis, 59 AD2d 383.)

      Leonard Garment, Judah Gribetz, Douglas M. Parker, William P. Laino, Paul G. Burns, Robert Kasanof, Lawrence Iason, Stanley S. Arkin, Mark S. Arisohn, Arthur T Cambouris, Andrew M. Lawler, Jr., and Dennis E. Milton for appellants upon reargument.
    I. The language and legislative history of the relevant statutes demonstrate that defendants have not committed a crime. (People v Montanez, 41 NY2d 53;
      People v Stanfield, 36 NY2d 467; People v Angelo, 246 NY 451; People v Gardner, 255 App Div 683; People v Dawson, 206 Misc 297; People v Eckert, 2 NY2d 126; People v Haney, 30 NY2d 328; People v Johnson, 68 Misc 2d 937; People v Pinckney, 38 AD2d 217, 32 NY2d 749.) II. The evidence before the Grand Jury was legally insufficient to sustain an indictment for reckless manslaughter or criminally negligent homicide. (People v Riccardi, 285 NY 21, 775; Phillips v Roux Labs., 286 App Div 549; People v Haney, 30 NY2d 328; People v Eckert, 2 NY2d 126; People v Bronzino, 25 AD2d 685; People v Tate, 87 Misc 2d 6; People v Lewis, 53 AD2d 963; People v Wells, 186 Misc 979.)

      John J. Santucci, District Attorney (Barry A. Schwartz and Charles N. Walsh of counsel), for respondent upon reargument.
    The instant prosecution is properly brought under the statute and is supported by legally sufficient evidence. (People v Haney, 30 NY2d 328; People v Rochester Ry. & Light Co., 195 NY 102; People v Nelson, 309 NY 231.)

       Designated pursuant to section 2 of article VI of the State Constitution.

   OPINION OF THE COURT

Jones, J.

Although they were aware that there was a broad, undifferentiated risk of an explosion in consequence of ambient magnesium stearate dust arising from the procedures employed in its manufacturing operations, the corporate and individual defendants may nonetheless not be held criminally liable, on the theory of either reckless or negligent conduct, for the deaths of employees occasioned when such an explosion occurred where the triggering cause thereof was neither foreseen nor foreseeable.

This case is before us on appeal from an order of the Appellate Division which reversed an order of Supreme Court granting defendants’ motion to dismiss the indictment on the ground that the evidence before the Grand Jury was not legally sufficient to establish the offenses charged or any lesser included offenses (CPL 210.20, subd 1, par [b]). On such a motion the standard of judicial scrutiny is whether there was "competent evidence which, if accepted as true, would establish every element of an offense charged and the defendant’s commission thereof’ (CPL 70.10, subd 1). In the somewhat unusual circumstances of this case defendants introduced extensive evidence before the Grand Jury; for our purposes, however, the evidence must be viewed in the light most favorable to the People, and it may be legally sufficient "although it does not even provide 'reasonable cause’ to believe that the defendant committed the crime charged” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 70.10, p 348). We describe the factual context out of which this indictment arose from that standpoint, recognizing that in our description no note is taken of the considerable exculpatory evidence introduced on behalf of defendants.

Defendant Warner-Lambert Co. is a manufacturing corporation which produces, among other items, Freshen-Up chewing gum. The individual defendants were officers or employees of the corporation. Defendant Kraft was vice-president in charge of manufacturing; defendant Harris was the director of corporate safety and security; defendants O’Mahoney and O’Rourke were, respectively, plant manager and plant engineer of the Warner-Lambert facility located at 30-30 Thompson Avenue in Long Island City, New York, which was the situs of the events out of which this indictment arose. The indictment charges each defendant with six counts of manslaughter in the second degree in violation of section 125.15 of the Penal Law and six counts of criminally negligent homicide in violation of section 125.10 of the Penal Law in consequence of the deaths of six employees which resulted from a massive explosion and fire at the Long Island City Warner-Lambert plant about 2:30 a.m. on November 21, 1976.

On the day on which the explosion occurred, Freshen-Up gum, which is retailed in the shape of a square tablet with a jelly like center, was being produced at the Warner-Lambert plant by a process in which filled ropes of the gum were passed through a bed of magnesium stearate (MS), a dry, dustlike lubricant which was applied by hand, then into a die-cut punch (a Uniplast machine) which was sprayed with a cooling agent (liquid nitrogen), where the gum was formed into the square tablets. Both the MS (normally an inert, organic compound) and the liquid nitrogen were employed to prevent the chicle from adhering to the sizing and cutting machinery, the tendency to adhere being less if a dry lubricant was used and the punch was kept at a low temperature. The process produced a dispersal of MS dust in the air and an accumulation of it at the base of the Uniplast machine and on overhead pipes; some also remained ambient in the atmosphere in the surrounding area.

Both MS and liquid nitrogen are considered safe and are widely used in the industry. In bulk, MS will only burn or smoulder if ignited; however, like many substances, if suspended in the air in sufficient concentration the dust poses a substantial risk of explosion if ignited. The minimum concentration at which an explosion can occur is denominated the "lower explosion level” (LEL). Liquid nitrogen, with a boiling temperature of minus 422 degrees Fahrenheit, is an effective cryogenic which might play a part in the process of "liquefaction” — here, the production of liquid oxygen in the course of the condensation of air on its exposure to a source of intense cold. Liquid oxygen is highly volatile, is easily ignited and, if ignited, will explode. Among possible causes of such ignition of either liquid oxygen or ambient MS are electrical or mechanical sparks.

On November 21, 1976 defendant Warner-Lambert was operating six Uniplast machines in the production of Freshen-Up gum on the fourth floor of its Long Island City plant. The machines were in almost constant operation; however, at the time of the catastrophic explosion near the end of one of the work shifts only one machine (designated the "D” machine) was in operation and employees were engaged in removing settled MS dust from the base of that machine and from overhead pipes by broom sweeping and by the use of airhoses. Suddenly an explosion occurred in the area of the operating machine, followed almost immediately by a second, much larger explosion accompanied by flames which caused injuries to more than 50 workers in the area (six of whom did not survive) and extensive damage to the building and equipment, which was attributed to burning of ambient dust and explosion rather than general fire. Thorough postcatastrophe investigation eliminated intentional or "man-caused” ignition as the origin of the event. A New York City Fire Marshal and an investigator for the United States Occupational Safety and Health Administration, both of whom examined the scene, testified before the Grand Jury that a primary explosion had occurred at the "D” machine which dispersed added MS dust into the atmosphere and could have caused the second, greater explosion. There was testimony that the ceiling of the floor below the "D” machine had been covered with peeling paint, indicating that the temperature of that machine was colder than the others and that an examination of the machine itself after the explosion had shown that its base, made of cast iron, had cracked, perhaps by reason of the cold. An employee present at the time of the occurrence testified that he had observed a spark in the area of the "D” machine immediately prior to the event. Although there was no direct proof as to what had triggered the early morning disaster, the People introduced expert testimony hypothesizing that there might have been a mechanical sparking induced by a breakup of metal parts of the Uniplast machine. Also presented was testimony by one of the People’s experts who theorized that liquid oxygen produced through liquefaction occurring in the Uniplast machine was ignited by the impact of a moving metal part and that this touched off the dispersed MS dust present.

With respect to the quantity of ambient MS dust in the area of the Uniplast machines (the presence of which was the basis for the People’s submission to the Grand Jury of evidence against the defendants ultimately indicted), there was proof that an inspection of the plant by Warner-Lambert’s insurance carrier in February, 1976 had resulted in advice to the insured that the dust condition in the Freshen-Up gum production area presented an explosion hazard and that the MS concentration was above the LEL, together with recommendations for installation of a dust exhaust system and modification of electrical equipment to meet standards for dust areas. Although a variety of proposals for altering the dust condition were considered by the individual defendants in consultations and communications with each other and some alterations in the MS application were made, both ambient and settled MS dust were still present on November 21, 1976, as the result of an executive decision to work toward the eventual elimination of MS entirely by modification of the Freshen-Up equipment. This modification had been accomplished with respect to only one Uniplast machine at the date of the explosion, when approximately 500 pounds of MS a day were still being used in Freshen-Up production. Employees were wearing face masks and goggles to protect their eyes and breathing passages, and just prior to the tragedy, when sweeping and airhosing of accumulated MS were in progress, there was rising dust and a "heavy fog” or "mist” all around.

The charges of manslaughter in the second degree and criminally negligent homicide laid against the corporate and individual defendants are each dependent on two interrelated provisions of the Penal Law. As to manslaughter in the second degree, the following provisions are pertinent:

"125.15 Manslaughter in the second degree
"A person is guilty of manslaughter in the second degree when:
"1. He recklessly causes the death of another person”.
"15.05 Culpability; definitions of culpable mental states
"The following definitions are applicable to this chapter:
* * *
"3. 'Recklessly.’ A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts recklessly with respect thereto.”

As to criminally negligent homicide the following provisions are pertinent:

"§ 125.10 Criminally negligent homicide
"A person is guilty of criminally negligent homicide when, with criminal negligence, he causes the death of another person.”
"§ 15.05 Culpability; definitions of culpable mental states
"The following definitions are applicable to this chapter:
* * *
"4. 'Criminal negligence.’ A person acts with criminal negligence with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that such result will occur or that such circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”

For each of these crimes there must be "a substantial and unjustifiable risk”, and "[t]he risk must be of such nature and degree that disregard thereof [or, the failure to perceive it] constitutes a gross deviation from the standard of conduct [or, care] that a reasonable person would observe in the situation.” The essence of manslaughter in the second degree is awareness accompanied by disregard of the risk; for criminally negligent homicide the essence is failure to perceive the risk (People v Stanfield, 36 NY2d 467, 470). With respect to each crime the culpable conduct of the defendant must have been the cause of the death of the other person or persons.

There have been relatively few reported cases (other than those involving vehicular homicide) in which judicial attention has been focused on the proof required to establish the commission of the crimes of manslaughter in the second degree or criminally negligent homicide. None has been drawn to our attention and our research has disclosed none in which the statutory provisions were applied to deaths occurring in the course of manufacturing operations.

There can be no doubt that there was competent evidence before the Grand Jury here which, if accepted as true, would have been sufficient to establish the existence of a broad, undifferentiated risk of explosion from ambient MS dust which had been brought to the attention of defendants. It may be assumed that, if it be so categorized, the risk was both substantial and unjustifiable. The issue before us, however, is whether defendants could be held criminally liable for what actually occurred, on theories either of reckless or negligent conduct, based on the evidence submitted to this Grand Jury, viewed in the light most favorable to the People. The focus of our attention must be on the issue of culpability, taking into account the conduct of defendants and the factors both of foreseeability and of causation, all of which in combination constitute the ultimate amalgam on which criminal liability may or may not be predicated.

First, we look at the evidence as to the actual event or chain of events which triggered the explosion — evidence which may only be characterized as hypothetical and speculative. There was direct testimony by eyewitnesses, confirmed by reconstruction of the physical evidence, that two explosions occurred. The first was a low-order detonation, occurring approximately two seconds before the major explosion, at the base of the "D” Uniplast machine, which was itself found to be in a substantially fragmented condition with gears, metal shafts, and other parts broken up and displaced; the second, occurring in rapid succession, was a major explosion accompanied by fire which caused the massive destruction and personal injuries. The prosecution hypothesizes that under what it describes as "the most plausible of theories” the initial detonation was attributable to mechanical sparking resulting from the breakup of the metal parts of the Uniplast machine, possibly occasioned by the machine’s having become overheated or overloaded, by vibration, or by slipping of components. Testimony supporting this hypothesis included descriptions of the condition of the machine after the event, expert testimony that the physical evidence suggested mechanical failure prior to the first explosion and testimony of prior instances in which the machine had become overheated or metal parts had broken off. The District Attorney adds that "ignition produced by an electrical spark or arc emission from the non-explosion proof, over loaded Uniplast motor was not ruled out either”.

Another explanation for the initial explosion was offered by an expert called by the prosecution who hypothesized that liquid oxygen, produced through liquefaction as air condensed on the liquid nitrogen-cooled parts of the "D” machine, dripped onto settled MS dust at the base of the Uniplast, became trapped there and then, when subjected to the impact caused by a moving metal part, reacted violently, causing ignition of already dispersed MS.

Viewed most favorably to the People, the proof with respect to the actual cause of the explosion is speculative only, and as to at least one of the major hypotheses — that involving oxygen liquefaction — there was no evidence that that process was foreseeable or known to any of the defendants. In sum, there is no proof sufficient to support a finding that defendants foresaw or should have foreseen the physical cause of the explosion. This being so there was not legally sufficient evidence to establish the offenses charged or any lesser included offense.

It has been the position of the People that but-for causation is all that is required for the imposition of criminal liability. Thus, it is their submission, reduced to its simplest form, that there was evidence of a foreseeable and indeed foreseen risk of explosion of MS dust and that in consequence of defendants’ failure to remove the dust a fatal explosion occurred. The chain of physical events by which the explosion was set off, i.e., its particular cause, is to them a matter of total indifference. On oral argument the People contended that liability could be imposed if the cause of the explosion were the lighting of a match by an uninvited intruder or the striking of a bolt of lightning. In effect they would hold defendants to the status of guarantors until the ambient dust was removed. It thus appears that the People would invoke an expanded application of proximate cause principles lifted from the civil law of torts.

We have rejected the application of any such sweeping theory of culpability under our criminal law, however. We recently considered concepts of criminal culpability grounded in recklessness or negligence in People v Kibbe (35 NY2d 407). In that case the defendants had abandoned their helplessly intoxicated robbery victim in subfreezing temperatures, without shoes or eyeglasses, by the side of an unlighted highway, and he was shortly thereafter struck and killed by a passing motorist. The critical issue in the case was whether the defendants should be held criminally liable for murder when the particular cause of death was vehicular impact rather than freezing. Under the theory now advanced by the People it would have been irrelevant that death had been the consequence of one particular chain of causation rather than another; it would have been enough that the defendants exposed their victim to the risk of death and that he died. That, of course, was not the analysis of culpability that we adopted. Recognizing that "[a] distance separates the negligence which renders one criminally liable from that which establishes civil liability” (People v Rosenheimer, 209 NY 115, 123) — both as to quantum and content of proof — we held that "the defendants should not be found guilty unless their conduct 'was a cause of death sufficiently direct as to meet the requirements of the criminal, and not the tort, law’ ” (35 NY2d, at p 412). "We subscribe to the requirement that the defendants’ actions must be a sufficiently direct cause of the ensuing death before there can be any imposition of criminal liability, and recognize, of course, that this standard is greater than that required to serve as a basis for tort liability” (id., at p 413). Thus, we were concerned for the nature of the chain of particularized events which in fact led to the victim’s death; it was not enough that death had occurred as the result of the defendants’ abandonment of their helpless victim. To analogize the factual situation in the case now before us to that in Kibbe it might be hypothesized that the abandoned victim in Kibbe instead of being either frozen to death or killed when struck by a passing motor vehicle was killed when struck by an airplane making an emergency landing on the highway or when hit by a stray bullet from a hunter’s rifle — occasions of death not reasonably to have been foreseen when the defendants abandoned their victim.

In view of our disposition of this appeal on the ground that, inasmuch as the evidence before the Grand Jury was not legally sufficient to establish the foreseeability of the actual immediate, triggering cause of the explosion, defendants cannot be held criminally culpable, we have no occasion to reach or consider whether the steps that they took with respect to the general risk of explosion were a gross deviation from the standard of care or conduct that a reasonable person would have observed in the situation.

For the reasons stated, we conclude that there was not legally sufficient evidence in this case on the premise of which any jury could permissibly have imposed criminal liability on any of these defendants.

Accordingly, the order of the Appellate Division should be reversed and the indictment dismissed.

Chief Judge Cooke and Judges Jasen, Gabrielli, Meyer, Sweeney and Cardamone* concur.

Order reversed, etc.

      . Inasmuch as we find the causation issue hereafter discussed to be decisive of this appeal, we assume for purposes of this decision, without deciding, that sections 125.10 and 125.15 of the Penal Law are broad enough to cover deaths occurring in the course of manufacturing operations. We note, however, that no case applying these sections or the predecessor sections to such operations has been found; that no legislative history which mandates that conclusion has been found, either by the parties from whom we solicited submissions on that subject prior to reargument or by our independent research; and that tenable arguments for and against it can be made.
      The arguments for are that the present sections were enacted as part of the general revision of the Penal Law, effective September 1, 1967, that the Commission Staff Notes on the Proposed Penal Law (adopted in 1967) stated with respect to the section on criminally negligent homicide that (at p 335) "The proposed crime * * * is one of general application, and no need or desirability is seen for individual, particularized provisions or offenses addressed to fatally negligent conduct in specific areas of activity”, that section 5.00 of the Penal Law declares that "The general rule that a penal statute is to be strictly construed does not apply to this chapter, but the provisions herein must be construed according to the fair import of their terms to promote justice and effect the objects of the law”, that the Practice Commentaries prepared by the former Counsel to the Commission on Revision state that section 125.10 "applies to a wide spectrum of fatal conduct of both commission and omission”, that the sections were fashioned on the Model Penal Code and like that code are stated in language which is clearly broad enough to include manufacturing operations.
      The arguments against are that the history of the American Law Institute’s adoption of the Model Penal Code contains nothing other than the broad language of the sections to indicate that manufacturing operations were intended to be covered and that the history of the predecessor sections of the Penal Law (§§ 1052, 1053-a to 1053-f) is equivocal. The introductory language of section 1052 was internally narrowed by the inclusion within the section of paragraphs describing particularized conduct — "Women producing miscarriage”, "Negligent use of machinery”, "Mischievous animals”, "Overloading passenger vessel”, "Persons in charge of steamboats”, "Persons in charge of steam engines”, "Acts of physicians while intoxicated”, and "Persons making or keeping gunpowder contrary to law”. Sections 1053-a and 1053-b dealt explicitly with criminal negligence in the operation of a motor vehicle; sections 1053-c and 1053-d covered criminal negligence in the use of a firearm or a long bow while hunting; and sections 1053-e and 1053-f addressed criminal negligence in the operation of a vessel. The paragraph in section 1052 captioned "Negligent use of machinery” (although facially so broad that if read literally it would have made unnecessary the particularization in co-ordinate internal paragraphs of that section) was first incorporated in our criminal law statutes in 1881 (L 1881, ch 676, § 195). No legislative history has been found which discloses the purpose for its introduction. It was not included in the draft proposal of 1865 and first appears in the proposal as amended in 1879. It may be argued, therefore, that prior to the enactment of the 1967 revision of the Penal Law there was no statutory proscription of general applicability and none specifically addressed to manufacturing operations.
      The pertinent policy considerations (e.g., the protection of New York residents against injury or death knowingly or recklessly inflicted and of the State against the burden of having to care for and support persons so injured or killed on the one hand, as opposed to the possible adverse effect on the State’s economy of extending criminal liability to manufacturing operations on the other) are more properly for the Legislature than for the courts (cf. Fletcher, The Theory of Criminal Negligence: A Comparative Analysis, 119 U of Pa L Rev 401). It may be that the Legislature will wish to eliminate all equivocality.

      . For subsequent proceedings see Henderson v Kibbe (431 US 145).


author: Chief Judge Cooke.

text:
    Harold Derdiarian et al., Respondents, v Felix Contracting Corp., Appellant, and Consolidated Edison Company of New York, Inc., Respondent, et al., Defendants. (And a Third-Party Action.)
    Argued October 14, 1980;
    decided November 20, 1980

      POINTS OF COUNSEL

      Harold Lee Schwab and Steven B. Prystowsky for appellant.
    I. As a matter of law there was no proximate causal connection between Felix’ excavation work and the occurrence of this freakish accident. (Sheehan v City of New York, 40 NY2d 496; Margolin v Friedman, 43 NY2d 982; Rivera v City of New York, 11 NY2d 856; Bolsenbroek v Tully & Di Napoli, 12 AD2d 376, 10 NY2d 960; People v Eckert, 2 NY2d 126; Golembe v Blumberg, 262 App Div 759; Williams v State of New York, 308 NY 548; Ventricelli v Kinney System Rent A Car, 59 AD2d 869, 45 NY2d 950; Martinez v Lazaroff, 48 NY2d 819; Pagan v Goldberger, 51 AD2d 508.) II. Assuming Felix breached a duty owed to plaintiff, the veering out of control of an automobile driven by an epileptic and his striking a hot kettle of énamel positioned by plaintiff was unforeseeable. (Polemenakos v Cohn, 234 App Div 563, 260 NY 524; Cartee v Saks Fifth Ave., 277 App Div 606, 303 NY 832; Hubbell v City of Yonkers, 104 NY 434.) III. The trial court committed prejudicial error in instructing the jury to consider the ordinances of the City of Mount Vernon as bearing on the duty owed by Felix to plaintiff. (Sarconi v One Hundred & Twenty-two West Twenty-sixth St. Corp., 241 NY 340; Clohessy v Felle, 36 AD2d 757; Hartford Acc. & Ind. Co. v Buchanan, 200 App Div 235; Burd v Bleischer, 208 App Div 499.) IV. The trial court erred in granting Con Edison’s cross claim against Felix. (Hogeland v Sibley, Lindsay & Curr Co., 42 NY2d 153; Margolin v New York Life Ins. Co., 32 NY2d 149; Inman v Binghamton Housing Auth., 3 NY2d 137.)

      Joseph J. Klem and Ernest J. Williams for Consolidated Edison Company of New York, Inc., respondent.
    I. As a matter of law, Harold Derdiarian failed to establish that any conduct on the part of Felix and Con Edison caused the accident. II. The act of James Dickens was an intervening and superseding act to be decided by the court as a matter of law. III. The ordinances of the City of Mount Vernon are not applicable in this case and it was prejudicial error for the court to instruct a jury to consider them as bearing on the duty owed by defendants. IV. The contract between Felix and Con Edison provides that Felix will indemnify Con Edison and save it harmless from all liability arising from injury to person or property occasioned wholly or in part by any act or omission of Felix. Thus Con Edison is not barred from seeking indemnification against Felix even though Con Edison has been guilty of active negligence. (Lopez v Consolidated Edison Co. of N. Y., 40 NY2d 605; Carollo v Consolidated Edison Co. of N. Y., 57 AD2d 853; Consentino v Consolidated Edison Co. of N. Y., 62 AD2d 1028; Sobel v City of New York, 9 AD2d 271, 9 NY2d 187; Bundy v City of New York, 18 AD2d 799, 13 NY2d 1181; Kurek v Port Chester Housing Auth., 18 NY2d 450; Levine v Shell Oil Co., 28 NY2d 205.)

      Edwin N. Weidman and Norman E. Frowley for Harold Derdiarian and another, respondents.
    I. Substantial evidence established that the negligence of Felix Contracting Corp. and Consolidated Edison Company of New York, Inc., was a proximate concurrent cause of the, injuries sustained. (Williams v State of New York, 308 NY 548; Rivera v City of New York, 10 AD2d 72, 13 AD2d 941, 11 NY2d 856; Hoggard v Otis Elevator Co., 52 Misc 2d 704, 28 AD2d 1207; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Saugerties Bank v Delaware & Hudson Co., 236 NY 425; O’Neill v City of Port Jervis, 253 NY 423; Pagan v Goldberger, 51 AD2d 508; Foley v State of New York, 265 App Div 682; Joyce v Rumsey Realty Corp., 17 NY2d 118; Broderick v Cauldwell-Wingate Co., 301 NY 182.) II. The occurrence of an out of control vehicle being reasonably foreseeable by defendant was not a superseding cause: rather, it was a concurrent cause of the accident herein. (Sheehan v City of New York, 40 NY2d 496; Lopes v Adams, 37 AD2d 610, 30 NY2d 499.) III. The dissent’s approach to proximate causation is incorrect. (Palsgraf v Long Is. R. R. Co., 248 NY 339; De George v City of New York, 51 AD2d 991; Rivera v City of New York, 11 NY2d 856; Williams v State of New York, 308 NY 548; Laible v New York Cent. & Hudson Riv. R. R. Co., 162 NY 621; Hoggard v Otis Elevator Co., 52 Misc 2d 704, 28 AD2d 1207; Boerio v Haiss Motor Trucking Co., 7 AD2d 228; Ward v State of New York, 81 Misc 2d 583; Daas v Pearson, 66 Misc 2d 95; Vinogradov v Clicquot Club Co., 55 AD2d 489.) IV. The court properly charged that any violation by Felix of the ordinances and regulations of the City of Mount Vernon pertaining to excavations and traffic safety, which Felix had agreed to comply with by contract, was some evidence of negligence. (Schneider v Carnegie Hall

      Corp., 54 AD2d 897; Nielsen v City of New York, 38 AD2d 592; Peckham v State of New York, 54 AD2d 599; Sarconi v One Hundred & Twenty-two West Twenty-sixth St. Corp., 241 NY 340.)
   OPINION OF THE COURT

Chief Judge Cooke.

The operator of a motor vehicle, who failed timely to ingest a dosage of medication, suffered an epileptic seizure and his vehicle careened into an excavation site where a gas main was being installed beneath the street surface. The automobile crashed through a single wooden horse-type barricade put in place by the contractor and struck an employee of a subcontractor, who was propelled into the air. Upon landing the employee was splattered by boiling liquid enamel from a kettle also struck by the vehicl'e. Principally at issue on this appeal is whether plaintiffs, the employee and his wife, failed to establish as a matter of law that the contractor’s inadequate safety precautions on the work site were the proximate cause of the accident.

Supreme Court, Queens County, rendered an order, upon a jury verdict, in favor of plaintiffs on the issue of liability. The Appellate Division, with one dissent, affirmed, and granted defendant Felix Contracting Corporation leave to appeal to this court upon a certified question.

The order of the Appellate Division should be affirmed. As a general rule, the question of proximate cause is to be decided by the finder of fact, aided by appropriate instructions. There is no basis on this record for concluding, as a matter of law, that a superseding cause or other factor intervened to break the nexus between defendant’s negligence and plaintiff’s injury.

During the fall of 1973 defendant Felix Contracting Corporation was performing a contract to install an underground gas main in the City of Mount Vernon for defendant Con Edison. Bayside Pipe Coaters, plaintiff Harold Derdiarian’s employer, was engaged as a subcontractor to seal the gas main.

On the afternoon of November 21, 1973, defendant James Dickens suffered an epileptic seizure and lost consciousness, allowing his vehicle to careen into the work site and strike plaintiff with such force as to throw him into the air. When plaintiff landed, he was splattered over his face, head and body with 400 degree boiling hot liquid enamel from a kettle struck by the automobile. The enamel was used in connection with sealing the gas main. Although plaintiff’s body ignited into a fire ball, he miraculously survived the incident.

At trial, plaintiff’s theory was that defendant Felix had negligently failed to take adequate measures to insure the safety of workers on the excavation site. Plaintiff’s evidence indicates that the accident occurred on Oak Street, a two-lane, east-west roadway. The excavation was located in the eastbound lane, and ran from approximately one foot south of the center line to within 2 or 3 feet of the curb. When plaintiff arrived on the site, he was instructed by Felix’ foreman to park his truck on the west side of the excavation, parallel to the curb. As a result, there was a gap of some IVi feet between the side of the truck and the curb line. Derdiarian testified that he made a request to park his truck on the east side of the hole, so he could set up the kettle away from the oncoming eastbound traffic. The Felix foreman instructed him to leave his truck where it was, and plaintiff then put the kettle near the curb, on the west side of the excavation.

James Dickens was driving eastbound on Oak Street when he suffered a seizure and lost consciousness. Dickens was under treatment for epilepsy and had neglected to take his medication at the proper time. His car crashed through a single wooden horse-type barricade that was set up on the west side of the excavation site. As it passed through the site, the vehicle struck the kettle containing the enamel, as well as the plaintiff, resulting in plaintiff’s injuries.

To support his claim of an unsafe work site, plaintiff called as a witness Lawrence Lawton, an expert in traffic safety. According to Lawton, the usual and accepted method of safeguarding the workers is to erect a barrier around the excavation. Such a barrier, consisting of a truck, a piece of heavy equipment or a pile of dirt, would keep a car out of the excavation and protect workers from oncoming traffic. The expert testified that the barrier should cover the entire width of the excavation. He also stated that there should have been two flagmen present, rather than one, and that warning signs should have been posted advising motorists that there was only one lane of traffic and that there was a flagman ahead.

Following receipt of the evidence, the trial court charged the jury, among other things, that it could consider, as some evidence of negligence, the violation of a Mount Vernon ordinance. The ordinance imposed upon a construction "permittee” certain safety duties. The court charged that Con Ed was the permittee "and by contract Felix assumed any obligations under this ordinance that Con Ed had.” Felix objected to "the Court charging that by contract Felix assumed any obligation under the ordinance that Consolidated Edison had.” The jury found for plaintiff, apportioning liability at 55% for Felix, 35% for Dickens and 10% for Con Ed. Defendant Felix now argues that plaintiff was injured in a freakish accident, brought about solely by defendant Dickens’ negligence, and therefore there was no causal link, as a matter of law, between Felix’ breach of duty and plaintiff’s injuries.

The concept of proximate cause, or more appropriately legal cause, has proven to be an elusive one, incapable of being precisely defined to cover all situations (see, e.g., Pagan v Goldberger, 51 AD2d 508, 509 [Hopkins, Acting P. J.]; Prosser, Law of Torts [4th ed], § 42, p 249; see, also, 1 Shearman & Redfield, Negligence, § 35). This is, in part, because the concept stems from policy considerations that serve to place manageable limits upon the liability that flows from negligent conduct (e.g., Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952; Palsgraf v Long Is. R. R. Co., 248 NY 339, 352 [Andrews, J., dissenting]). Depending upon the nature of the case, a variety of factors may be relevant in assessing legal cause. Given the unique nature of the inquiry in each case, it is for the finder of fact to determine legal cause, once the court has been satisfied that a prima facie case has been established (see, e.g., Nallan v Helmsley-Spear, Inc., 50 NY2d 507, 520, 521; Sheehan v City of New York, 40 NY2d 496, 502, 503; Kingsland v Erie County Agric. Soc., 298 NY 409, 424, 427). To carry the burden of proving a prima facie case, the plaintiff must generally show that the defendant’s negligence was a substantial cause of the events which produced the injury (Nallan v Helmsley-Spear, Inc., supra, at p 520; Restatement, Torts 2d, § 431). Plaintiff need not demonstrate, however, that the precise manner in which the accident happened, or the extent of injuries, was foreseeable (Restatemeirij Torts 2d, § 435, subd 2).

h h-ere the acts of a third person intervene between the defendant’s conduct and the plaintiff’s injury, the causal connection is not automatically severed. In such a case, liability turns upon whether the intervening act is a normal or foreseeable consequence of the situation created Sbj( the defendant’s negligence (see Parvi v City of Kingston, 41 NY2d 553, 560; Restatement, Torts 449; Prosser, Law of Torts, § 44). If the intervening act i, extraordinary under the circumstances, not foreseeable in tu normal course of events, or independent of or far removed rom the defendant’s it may well be a superseding act which breaks the causal nexus (see, e.g., Martinez v Lazaroff, 48 NY2d 819, 820; Ventricelli v Kinney System Rent A Car, 45 NY2d 950, 952, supra; Rivera v City of New York, 11 NY2d 856). Because questions concerning what is foreseeable and what is normal may be the subject of varying inferences, as is the question of negligence itself, these issues generally are for the fact finder to resolve.

There are certain instances, tb be sure, where only one conclusion may be drawn from* the established facts and where the question of legal cause ’(nay be decided as a matter of law. Those cases generally involve independent intervening acts which operate upon but d J not flow from the original negligence. Thus, for instance, we have held that where an automobile lessor negligently supplies a car with a defective trunk lid, it is not liable to the lessee who, while stopped to repair the tiunk, was injured by the negligent driving of a third party (Ventricelli v Kinney System Rent A Car, supra). Although the renter’s negligence undoubtedly served to place the injured, party at the site of the accident, the intervening act was divorced from and not the foreseeable risk associated with the original negligence. And the injuries were different in kind than those which would have normally been expected from a defective trunk. In short, the negligence of the renter merely furnished the occasion for an unrelated act to cause injuries not ordinarily anticipated (see, also, Martinez v Lazaroff, supra).

By contrast, in the present case, we cannot say as a matter of law that defendant Dickens’ negligence was a superseding cause which interrupted the link between Felix’ negligence and plaintiff’s injuries. From the evidence in the record, the jury could have found that Felix negligently failed to-safeguard the excavation site. A prime hazard associated witih such dereliction is the possibility that a driver will negligently enter the work site and cause injury to a worker. That the driver was negligent, or even reckless, does not insulate Felix from liability (see Lopes v Adams, 30 NY2d 499, affg 37 AD2d 610; Restatement, Torts 2d, § 449). Nw is it decisive that the driver lost control of' the vehicle through a negligent failure to take medication, rather”"tlm^axlriving' mistake (see, e.g., Lopes v Adams, supra). The praise manner of the event need ^not be anticipated. The findr °f fact could have concluded that-the foreseeable, normal and natural result of the risk created by Felix was the injury of a worker by a car entering the improperly protected work area. An intervening act may not serve as a superseding cause, and relieve an actor of responsibility, where the risk of the intervening act occurring is the very same risk which renders the actor negligent.

In a similar vein, plaintiff’s act of placing the kettle on the west side of the excavation does not, as a matter of law, absolve defendant Felix of responsibility. Serious injury, or even death, was a foreseeable consequence of a vehicle crashing through the work area.; The injury could have occurred in numerous ways, ranging fifom a worker being directly struck by the car to the car hitting- an object that injures the worker. Placement of the kettle, or &ny object in the work area, could affect how the accident occurs and the extent of injuries. That defendant could not anticipate the precise manner of the accident or the exact extent of injuries, however, does not preclude liability as a matter of law where the general risk and character of injuries are foreseeable.

Felix also urges that the trial court erred in charging the jury that a violation of the Mount Vernon ordinance could be considered as some evidence of negligence. According to Felix, the ordinance was designed to protect the general public and created no duty to workers on the site. Whatever the merit of his contention, it is beyond our review, for Felix failed to raise it before the trial court. The only objection to this charge related to Felix’ argument that it had not contractually assumed any duty imposed by the ordinance upon Con Ed.

Finally, we perceive no error in the conclusion that Felix is contractually obligated to indemnify Con Ed, even though Con Ed itself was found to be negligent (see, e.g., Margolin v New York Life Ins. Co., 32 NY2d 149).

For the foregoing reasons, the order of the Appellate Division should be affirmed, v/ith costs. The certified question is answered in the affirmative.

Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur; Judge Fuchsberg taking no part.

Order affirmed, etc.

      . Since plaintiff has prevailed on the liability issue, and the only issue is whether the evidence was insufficient as a matter of law, the evidence must now be viewed in the light most favorable to the plaintiff.

      . The pertinent portions of the ordinance provide:
      "The permittee shall erect and maintain suitable barricades and fences around all of his work while excavation or other work is in progress and shall arrange his work in such a manner as to cause a minimum of inconvenience and delay to vehicular and pedestrian traffic.
      "Where free flow of traffic is interfered with, the permittee shall designate competent persons to direct and expedite traffic by means of lights or flags.
      "Unless otherwise authorized by the Commissioner, vehicular traffic shall be maintained at all times during the progress of the work being performed under the permit.
      "Safety shall be provided with suitable barricades and lights throughout project, and security supplied where necessary.”

      . Defendant Con Ed also claims to appeal from the order of the Appellate Division. However, Con Ed’s appeal as of right was previously dismissed by this court (48 NY2d 755). Inasmuch as Con Ed has not obtained leave to appeal from the Appellate Division, it is before this court as a respondent only.

        . Plaintiff testified that a Felix foreman had d),-aecc<a ;,Vm to park his truck on the west side of the excavation. From this, and other related testimony, the jury could have concluded that Felix effectively dictated the location of the kettle, obviating any question of plaintiff’s own conduct breaking the causal nexus.