Food Pageant, Inc. v. Consolidated Edison Co., Inc.
| Decision Date | 19 November 1981 |
| Citation | 445 N.Y.S.2d 60,54 N.Y.2d 167,429 N.E.2d 738 |
| Parties | , 429 N.E.2d 738 FOOD PAGEANT, INC., Respondent, v. CONSOLIDATED EDISON CO., INC., Appellant. |
| Court | New York Court of Appeals Court of Appeals |
The case and appeal submitted for our review arises from the 1977 New York City blackout, which left approximately three million customers of Consolidated Edison of New York located in New York City and Westchester County without electrical power. Plaintiff, a grocery store chain, brought suit seeking damages for food spoilage and loss of business. Presented for our consideration is whether a jury verdict finding defendant to have been grossly negligent may stand.
On July 13, 1977, Con Edison's entire electrical power system blacked out. The apparent initiating event was the combination of two lightning strokes, occurring within 18 minutes of each other, causing two double circuit outages of transmission lines linking Con Edison's system with the other electrical utilities in the New York Power Pool. At trial, plaintiff alleged several careless acts by Con Edison which precipitated the eventual power outage. First, plaintiff urged that several power sources were unjustifiably out of service on the evening of the blackout. It was alleged that the Hudson-Farragut tie, a power line which linked Con Edison's system with that of the Public Service Electric and Gas Company of New Jersey, and the Indian Point 2 power plant were out of operation. Con Edison apparently maintained certain gas turbines for use during hours of peak power demand which were also inoperable at the time of the blackout because the technicians who manned the turbines had been sent home earlier. In addition, it was alleged that Con Edison failed to properly maintain and inspect certain relays and circuit breakers, and failed to secure proper protection against lightning for its towers and transmission lines. Finally, plaintiff alleged that the person placed in charge of the Con Edison system on the evening of July 13, 1977, William Jurith, reacted improperly to the crisis and, further, that Con Edison was grossly negligent in placing Jurith in such a critical position while lacking the necessary experience, knowledge and expertise to completely perform the functions of his job.
In response, Con Edison maintained that the Hudson-Farragut tie was out of operation because of the prior failure of a complex piece of machinery, that the Indian Point 2 plant was also justifiably out of service for repairs, and that the gas turbines were not in operation at the time of the incident because the anticipated period of peak power demand, during which the turbines were normally used, had expired earlier in the evening. Con Edison also maintained that its inspection program for circuits and relays conformed to the appropriate engineering standards and that the lightning protection on the Con Edison towers and lines was adequate and properly designed. In respect to its employee, Con Edison maintained that Jurith had acted properly and did not, in any event, act with gross negligence.
Before submitting the case to the jury, the trial court instructed its members that they could return a verdict for the plaintiff only if they found that defendant had been grossly negligent. As Trial Term recognized, under the terms of Con Edison's rate schedule, the utility cannot be held liable for interruption of service due to the ordinary negligence of its agents and employees. It does, however, remain liable for gross negligence. In Weld v. Postal Telegraph-Cable Co., 199 N.Y. 88, 98, 92 N.E. 415, this court recognized that the liability of a public utility should be limited to damages arising from the utility's willful misconduct or gross negligence. Later, after a retrial, the court further addressed the meaning of this standard (Weld v. Postal Telegraph-Cable Co., 210 N.Y. 59, 103 N.E.957). Briefly, gross negligence had been termed as the failure to exercise even slight care. In the present case, following the charge to the jury which incorporated the standard of gross negligence, the jury returned a verdict finding that the defendant had...
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