
    Bernard Schlansky et al., Appellants, v. Augustus V. Riegel, Inc., Respondent, et al., Defendant. George L. George et al., Appellants, v. Augustus V. Riegel, Inc., Respondent, et al., Defendant.
    Argued March 22, 1961;
    decided April 27, 1961.
    
      
      Robert Lee Moore and Ernest G. Allen for appellants.
    
      1. Defendant blaster’s use of a greater quantity of explosive than necessary to properly start the rock, without obtaining the required special permission, in violation of the Town of Green-burgh’s safety ordinance establishing minimum requirements for the use of dangerous and hazardous materials, was at least sufficient evidence of negligence to make out a prima facie ease. (Martin v. Herzog, 228 N. Y. 164.) II. The Greenburgh blasting ordinance also provides that the blasting of rock contiguous to any structure shall be so conducted as not to cause damage thereto. The property of the homeowners was contiguous to the site of the blasting. Defendant’s blasting did cause damage. Therefore, the violation of this provision also constituted some evidence of negligence. III. Defendant blaster promised in writing to adequately protect adjacent property as provided by law and the contract documents. The blaster admitted that no steps were taken. Indifference to probable consequences of blasting is the highest form of negligence. IV. The homeowners made out a prima facie case of negligence and the verdict of the jury should, therefore, be reinstated. (Booth v. Rome, W. & O. T. R. R. Co., 140 N. Y. 267; Brown v. Rockefeller Center, 289 N. Y. 729.) V. The New York law with its unscientific and illogical distinction between physical trespass and vibration-concussion damage caused by blasting was evolved in the Nineteenth Century when conditions were substantially different. The rapid advance of science and the ‘ ‘ population explosion ” in urban and suburban areas since then has made it practical, as well as imperative, that the law impose the same responsibility on blasters for vibration-concussion damage as for physical trespass damage. This is the law in most jurisdictions and accords with that advocated by leading text writers as making sense. (Booth v. Rome, W. & O. T. R. R. Co., 140 N. Y. 267; Hill v. Schneider, 13 App. Div. 299; Brown v. Rockefeller Center, 289 N. Y. 729: Holland House Co. v. Baird, 169 N. Y. 136.) VI. Extreme vibration-concussion blasting should be deterred because of damage to the personalty as well as because of physical damage to real and personal property. VII. The genesis of the undesirable state of the law in this field is the untenable distinction which the New York law makes between physical trespass and vibration-concussion damage from blasting.
    
      James K. Page for respondent.
    I. Plaintiffs failed to prove any acts of negligence on the part of defendant and, accordingly, its motions for the dismissal of the complaint and for a directed verdict should have been granted. (Booth v. Rome, W. & O. T. R. R. Co., 140 N. Y. 267; Holland House Co. v. Baird, 169 N. Y. 136; Viele v. Mack Paving & Constr. Co., 144 App. Div. 694; Shemin v. City of New York, 6 A D 2d 668; Dixon v. New York Trap Rock Corp., 293 N. Y. 509; Nordone v. Mondo, 269 App. Div. 896; Lewis v. Dunbar & Sullivan Dredging Co., 178 Misc. 980; Brown v. Rockefeller Center, 289 N. Y. 729; Halverson v. 562 W. 149th St. Corp., 290 N. Y. 40.) II. In the event this court should find that plaintiffs proved a prima facie case, then, because of errors in the charge, the order granting a new trial should be affirmed. (Matter of Taylor, 197 App. Div. 865; Trulock v. Kings County Iron Foundry, 216 App. Div. 439; Meitzler v. Hill, 233 App. Div. 503.) III. Negligence as a prerequisite to liability should not be abandoned in favor of an extension of the law of trespass.
   Chief Judge Desmond.

Bach pair of plaintiffs owns a residence in Scarsdale, N. Y., which was damaged (without physical trespass) by vibration and concussion resulting from blasting operations carried on by defendant-respondent itiegel preparatory to construction of a building on a lot which adjoins at the rear the lots owned by plaintiffs. The distance from the blasting area to each of the houses was 40 feet or more. The jury gave the plaintiffs a verdict in each action but the trial court set each verdict aside for failure of proof and ordered a new trial in each action. The Appellate Division agreed that negligence had not been established in either case but held that this deficiency in proof required dismissal of the complaints. The Appellate Division’s reasoning is set forth in this excerpt from its opinion: ‘ ‘ Such owner is not liable for damage to his neighbors ’ structures caused by a concussion generated by the blasting, in the absence of proof of negligence in the performance of the blasting. Despite the injury to neighboring property, such blasting, without proof of negligence, is damnum absque injuria. This rule is based upon the public policy of promoting the building up of towns and cities and the improvement of property ’ (Booth v. Rome, Watertown & Ogdensburg Term. R. R. Co., 140 N. Y. 267, 281; see, also, Holland House Co. v. Baird, 169 N. Y. 136; Shemin v. City of New York, 6 A D 2d 668; Viele v. Mack Paving & Constr. Co., 144 App. Div. 694).”

Plaintiffs-appellants press for a “reexamination and reappraisal ” of the New York case law which imposes strict liability for blasting damage when there is physical trespass but insists on proof of negligence in the blasting when no flying debris is cast onto a plaintiff’s premises. Were the question properly before us we would have to decide whether the present New York rule should be modified so as to conform to the more widely (indeed almost universally) approved doctrine that a blaster is absolutely liable for any damages he causes, with or without trespass (see, for instance, Brown v. Lunder Constr. Co., 240 Wis. 122; FitzSimons & Connell Co. v. Braun & Fitts, 199 Ill. 390; Whitman Hotel Corp. v. Elliott & Watrous Eng. Co., 137 Conn. 562; Baier v. Glen Alden Coal Co., 332 Pa. 561; Exner v. Sherman Power Constr. Co., 54 F. 2d 510, 513 [2d Cir.]). But this record does not raise the question. Each of these suits was sued, tried and given by the court to the jury (without objection) on the theory that proof of negligence was necessary for recovery. Such became the law of the case (Buckin v. Long Is. R. R. Co., 286 N. Y. 146).

We hold, however, that there is prima facie proof of negligence in this record and that the dismissal of the complaints was erroneous. Directly in point is Brown v. Rockefeller Center (289 U. Y. 729) where we unanimously sustained a plaintiff’s verdict for personal injuries sustained in a building which was rocked by a nearby (100 feet away) blast. In the Brown case, as in these cases, there was produced a blasting expert who in answer to a hypothetical question and on the basis of an inspection of the site stated an opinion that more explosive powder was used than was necessary. Here, as it was in the Brown case, it is argued that the expert’s opinion was valueless since he did not know the method of blasting or the strength of the charges used or the character of the soil or rock. Such a criticism is unjustified. Here, as in Brown, the expert’s qualifications were established and he stated that from the situation which he observed and the facts contained in the hypothetical question he was able to express an opinion with reasonable certainty. That permitted the taking of his opinion and his lack of further information affected the weight but not the admissibility of his evidence.

Furtherinore, there was in addition to the testimony of Professor Boshkov other evidentiary basis on the trial for the jury’s finding of negligence. Mrs. Schlansky swore that the “ noise was deafening ”, that the blasts were numerous and that the house, which had been in good condition, shook so that cracks appeared in many parts of the structure. Mrs. George swore to positively terrifying ” blasts that caused her whole house to shudder. On one occasion (this was not disputed) a representative of defendant was present when there was a big blast followed by the opening up of a large crack in a wall. At another time parts of ceilings fell in two rooms of the Schlansky house. Large cracks appeared in various walls as blasts were heard and felt. Defendant called no witnesses at all. It is significant that one of its officers subpoenaed by plaintiffs to produce defendant’s records testified that “ There is no record of when we blasted, what days and what dynamite and materials was used. ’ ’ The testimony just above summarized was in itself some basis for the finding of negligence — that is, of the setting off of unnecessarily violent charges. Even the Booth rule, strict as it is, concedes that the omission to use less powerful blasts, if it were possible to do so, could be considered negligence (Booth v. Rome, Watertown & Ogdensburg Term. R. R. Co., 140 N. Y. 267, 270).

Defendant argues that Brown v. Rockefeller Center (289 N. Y. 729, supra) is distinguishable as a case where ‘ ‘ one tremendous blast resulted in such extensive damage that the jury could infer that the blasting must have been negligently done.” But there is nothing in the Broion case to suggest that such was the basis of the holding that negligence had been shown. It does not appear in the Brown record that there was just one tremendous blast or that really extensive property damage was caused. It would be strange if a blaster would be held liable for one excessive blast and excused from the consequences of a number of such explosions. The testimony by these homeowners described many explosions and a refusal of defendant to abate them despite protests.

Many years ago (1916) in Kaninsky v. Purcell & Gilfeather (158 N. Y. S. 165) the then Justice Lehman, later our Chief Judge, wrote this: “It is well established in this state that there is no liability for consequential injuries caused by a concussion, without proof of negligence, and the mere fact that a blasting causes injury upon adjacent premises gives rise to no presumption that the blasting was negligently performed. In all the cases cited upon the briefs, or which I can now remember, a recovery has been permitted to stand only where the plaintiff has shown the manner in which the blast was actually set off, coupled with further proof that the method used was negligent. Nevertheless it seems quite certain to me that, where the testimony of the results and surrounding circumstances of a blast is so strong that, under ordinary circumstances, such a result could not have occurred unless the blasting was negligently performed, a prima facie case of negligence is made out. Such testimony, however, must undoubtedly clearly show facts which will legitimately lead to this inference, and the rule that the injured party must affirmatively show negligence cannot be disregarded.”

In 1918 Justice Finch, later an Associate Judge of this court, in a nontrespass blasting case (Interborough R. T. Co. v. Williams, 168 N. Y. S. 688) expressed the view that without other proof of negligence a jury question was presented by a showing that the explosions were so powerful as to do great damage.

Both Chief Judge Lehman and Judge Finch took part in the decision in the Brown case (supra) in this court. We see no reason why the Brown holding should not be considered direct authority for a reversal here.

We agree with defendant that there is no sufficient proof of violation of the town’s Fire Prevention Code and that the jury’s finding of negligence could not be related to those regulations.

The judgments should be reversed and the verdicts of the jury reinstated, with costs in all courts.

Van Voorhis, J. (concurring).

Few rules of law have been more troublesome to formulate or more difficult to apply than those relating to civil liability for damages to neighboring property arising from blasting operations. The established New York doctrine is questioned in the majority opinion in favor of a “ doctrine that a blaster is absolutely liable for any damages he causes, with or without trespass ”, but since this action was tried on the theory of negligence the court does not in this case overrule the doctrine that some negligence was necessary. Although I agree that enough was shown to require this defendant to come forward with evidence showing how this blasting operation was conducted, I do not share in questioning the established rule nor in the view that evidence of serious injury to neighboring property in itself furnishes a basis for expert opinion evidence that the blasting was negligently performed. Such a holding appears to go beyond any prior authoritative decision in this State, and to open jury questions in all cases of this kind on a showing of substantial injury to nearby buildings. Heretofore the rule has been that in the absence of any factual basis for an inference that the blasts were excessive, with or without expert opinion, there is no issue to submit to a jury arising merely from damage to surrounding structures. That rule, I think, should be maintained.

The best formulation of the existing rule is in the leading case of Booth v. Rome, Watertown & Ogdensburg Term. R. R. Co. (140 N. Y. 267) in an opinion by Chief Judge Andrews speaking for the unanimous court. It was there held that in conducting blasting operations the test as to the permissible use of, or action upon, one’s own land is not whether the use causes injury to a neighbor’s property, or that the injury was the natural consequence or that the act was in the nature of a nuisance, but is whether the act or use is a reasonable exercise of the dominion which the owner, by virtue of his ownership, has over his property having regard to all the interests affected, his own and his neighbors, and also having in .view public policy. It was pointed out that the rocky surface of the upper part of Manhattan Island makes blasting necessary in excavation work, and, unless permitted, the value of lots, especially for business uses, would be seriously affected.

It was pointed out (supra, p. 278) that if blasting were to be prohibited in event that damage is done to neighboring property, the consequence would be that the man who has first built a store or warehouse or dwelling on his lot.and has blasted the rock for a basement or cellar would prevent his neighbor from doing the same thing when he comes to build on his lot adjoining. ‘ ‘ Such a rule would enable the first occupant to control the uses of the adjoining property, to the serious injury of the owner, and prevent or tend to prevent the improvement of property * * * The first occupant acquires no right to exclude an adjoining proprietor from the free use of his land, nor to use his own land to the injury of his neighbor subsequently coming there. * * * The fact of proximity imposes an obligation of care, so that one engaged in improving his own lot shall do no unnecessary damage to his neighbor’s dwelling, but it cannot, we think, exclude the former from employing the necessary and usual means to adapt his lot to any lawful use, although the means used may endanger the house of his neighbor.”

The court endeavored to avoid rendering the construction of railroads, highways or private buildings so costly as to be impracticable, while simultaneously protecting the owners of existing buildings insofar as reasonably possible. Chief Judge Andrews’ opinion assumes as a condition that the excavation could not have been done except by the use of explosives. Likewise it was noted that there are acts of various kinds which the owner of land may lawfully do, although it brings annoyance, discomfort or injury to his neighbor, which are damnum absque injuria. Instances are cited such as buildings caused to fall by lawful excavation in adjoining lots, the right of an owner to excavate minerals in a mine, although by so doing it causes the water to collect and be discharged into an adjacent mine on a lower level. Blasting is then analyzed and permitted to a degree that would not be tolerated if it were a permanent procedure, in view of the temporary nature of acts which are resorted to in the course of adapting premises to a lawful use by the construction of buildings, highways or railroads. The erection of an iron building adjacent to a dwelling is cited as something which might be prohibited as a nuisance if the same operations were conducted permanently in a factory, but is permitted on account of the temporary nature of the activity in the construction of a building which will not be a nuisance when completed.

In blasting it was held that although the plaintiff sustained a serious injury, the “ mere proof that the house was damaged by the blasting would not alone sustain the action (supra, p. 273; italics supplied). The result would be otherwise ‘ ‘ If it was practicable in a business sense for the defendant to have removed the rock without blasting, although at a somewhat increased cost ” or “ if less powerful blasts might have been used, which, if used, would not have occasioned injury, or would have lessened it ” (pp. 273-274) in which event the omission to use them might have been considered negligence. It appeared in the Booth case that the blasting was the only mode of moving the rock practically available, and that it was done with due care in consequence whereof no cause of action could be maintained.

This followed the rationale of Benner v. Atlantic Dredging Co. (134 N. Y. 156) where liability for damages was disallowed from blasting in Hell Gate. The opinion pointed out (p. 162) that the injuries to plaintiff’s house were.caused by the shaking of the earth or pulsations of the air, or both, without physical invasion of plaintiff’s premises as in Hay v. Cohoes Co. (2 N. Y. 159). This result was reached for the reason that ‘1 One cannot confine the vibration of the earth or air with inclosed limits, and hence it must follow that if in any given case they are rightfully caused, the extention to their ultimate and natural limits cannot be unlawful, and the consequential injury, if any, must be remediless.”

The Booth and Benner cases (supra) have been followed, resulting in the dismissal of blasting claims on the law in French v. Vix (143 N. Y. 90); Holland House Co. v. Baird (169 N. Y. 136); Haefelin v. McDonald (96 App. Div. 213); Shemin v. City of New York (6 A D 2d 668), and Viele v. Mack Paving & Constr. Co. (144 App. Div. 694) as well as in other cases which are cited in the opinions therein. Brown v. Rockefeller Center (affd. without opinion 289 IST. Y. 729) is no exception. The record on appeal in that case shows that there was evidence from which a jury could find a regular pattern of blasts of lesser intensity, . and that the damage was wrought by a single explosion which was of so vastly greater power as in itself to furnish a basis for an inference that the amount of explosive used was excessive. Although the quantity of the charge was not shown, the comparison between this severe explosion and the ordinary explosions adequate to the prosecution of the work was regarded as a substitute for such evidence. That furnished a factual basis for an inference of negligence and provided a foundation for the testimony of the expert witness.

In the case at bar there is no similar testimony. The evidence is that every explosion which occurred was so severe as to cause damage of the nature for which suit is brought. The opinion of the expert witness that the charge was too great lacks probative force in view of the absence of any evidence of the nature which sustained the recovery in.the Brown case (supra), or of the amount of the charge and whether the work could have been accomplished by the use of smaller charges even at somewhat increased cost. An expert witness ’ opinion is without effect if it is speculative being without foundation in facts proved in the record. (Matter of Burris v. Lewis, 2 N Y 2d 323, 327.)

The defendant in this case, however, was subpoenaed to produce records or other evidence showing what actually was done in conducting the blasting which resulted in the injury to plaintiff’s property. A responsible officer or employee of defendant was called to testify to this by plaintiff but denied that any records were kept or that anyone had knowledge upon the subject. It is clear that defendant has sought to escape liability by failing to keep any records or by concealing what actually was done in the conduct of these blasting operations. For that reason, and for that reason only, it seems to me that the defendant should be subject to the consequences if it conceals the evidence of what was done in conducting the blasting. If such evidence had been produced, it would, in my view, have superseded any presumption in plaintiff’s favor, and a question of fact would or would not have been presented depending upon what the evidence showed. In default of any revelation of the facts underlying the cause of this serious damage, I concur in the reinstatement of the judgment in plaintiff’s favor entered upon the verdict of the jury. But I would not go so far as to hold that evidence of injury alone is enough to create a question of fact, with or without expert testimony based thereon, and would vote to affirm except for the concealment by the defendant of the facts concerning the conduct of this blasting operation.

Judges Dye, Fuld, Froessel, Burke and Foster concur with Chief Judge Desmond; Judge Van Voorhis concurs in a separate opinion.

Judgments reversed, etc.  