Danna v. Con Edison Co., Inc.
| Decision Date | 30 October 1972 |
| Parties | Marion Lawrence DANNA, Plaintiff, v. CON EDISON CO., INC., Defendant. |
| Court | New York City Court |
Plaintiff brought this action in the small claims part of this court against Consolidated Edison, for damages to plaintiff's refrigerator caused by low voltage in a brown-out which occurred in the area where plaintiff resided. Plaintiff introduced in evidence, Plaintiff's Exhibit No. 1, a report dated August 7, 1972 from D. J. Dineen Sales and Service Corporation which stated the compressor motor was burned out due to operation on low voltage and a receipted bill for the repairs completed in the sum of $144.45, Plaintiff's Exhibit No. 2.
Defendant conceded by stipulation in open court that the brown-out did indeed occur, that the low voltage caused the damage to plaintiff's refrigerator and that if an expert were called to testify, he would testify as to the amount of damages claimed by plaintiff. Defendant introduced into evidence Public Service Commission (hereinafter referred to as the PSC) Schedule of Electricity Service No. 8, and claims that according to leaflet No. 19 contained therein defendant is not liable since under paragraph No. 14 'in case the supply of service shall be interrupted or irregular or defective or fail from causes beyond its control Or through ordinary negligence of employees, servants or agents the Company will not be liable thereof,' (emphasis supplied.)
In addition defendant claims that at the time plaintiff requested service, an agreement was executed wherein plaintiff agreed to be bound by the rate schedule as filed with the PSC. However, no proof was offered to substantiate this defense and no agreement was offered into evidence, therefore, this defense is a nullity.
The fundamental issue in this case is whether the conditions contained in the PSC Schedule Leaflet No. 19 are a valid defense against plaintiff's claim, and generally whether the defendant has a right to absolve itself from any and all liability for an interruption of service including the ordinary negligence of its employees, servants or agents by a mere filing of said schedule with the PSC.
Public utilities are granted special privilege under our laws including guaranteed profit, guarantee of no competition . . . which justifiably have been granted in the cause of protecting the public interest, and to assure that the public will receive continuous and non-discriminatory service. Public welfare and interest demands service from the various utilities without the evils of ordinary business competition. The PSC was established for the purpose of protecting and enforcing the rights of the public. People ex rel. B.L.H. & P. Co. v. Stevens, 203 N.Y. 7, 96 N.E. 114; People v. PSC (1913) 157 App.Div. 156, 141 N.Y.S. 1018. The PSC may exercise only such power as is conferred upon it by the legislature. Village of Boonville v. Maltbie (1936) 272 N.Y. 40, 4 N.E.2d 209, affirming 245 App.Div. 468, 283 N.Y.S. 460, mot. for rearg. den. 246 App.Div. 887, 285 N.Y.S. 1052. PSC has no authority to determine questions of law, Kovarsky v. Brooklyn Union Gas Co. (1938) 253 App.Div. 635, 3 N.Y.S.2d 581, aff'd (1939) 279 N.Y. 304, 18 N.E.2d 287. Questions of law are left to the courts. The PSC does not act as counsel for the general public. Schedules are filed in accordance with the Public Service Law and when the prescribed time has elapsed, the schedules become binding on all consumers. The exemption from liability has been held to be valid on the grounds that to hold the utility to the liability of an insurer with respect to interruption of service due to causes other than gross or wilful negligence would require prohibitive rates. Hamilton Employment Service, Inc. v. New York Telephone Company, 253 N.Y. 468, 171 N.E. 710. Defendant relies on this case to some extent.
The State or City, recognizing its obligations to its citizens for the torts of its employees, permits suit against the governmental body. True that this right is permitted by statute. It is well known that the only way the State or City meets its obligations is to tax its citizens. Even though large recoveries or large number of recoveries may result in increased taxes to pay...
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