Hall v. Consolidated Edison Corp.

• Decision Date: 04 June 1980
• Parties: Gloria HALL, Plaintiff, v. CONSOLIDATED EDISON CORP., and Lefrak Organization, Inc., et al., Defendants.
• Court: New York Supreme Court

Page 837

428 N.Y.S.2d 837

104 Misc.2d 565

Gloria HALL, Plaintiff, v. CONSOLIDATED EDISON CORP., and Lefrak Organization, Inc., et

al., Defendants.

Supreme Court Kings County.

June 4, 1980.

Julien, Schlesinger & Finz, New York City, for plaintiff.

Ernest J. Williams, New York City, for Consolidated Edison.

HARRY EDELSTEIN, Justice.

The Defendant Consolidated Edison Corp., cut off electrical services to the common hallways and elevators at 6:15 p. m. on Friday, May 9, 1975, in the apartment dwelling in which the plaintiff resided. This also shut off water power to the tenants which was supplied by electrical pumps. The premises was an eighteen-story apartment house, containing 154 apartments, and about 500 tenants. The electrical service to the individual apartments was not shut off.

The plaintiff seeks to recover damages for injuries sustained when she fell on some wax drippings in a darkened stairway. As President of the Tenants' Association, the plaintiff, together with three of her neighbors using flash lights, was tending to the older and bed-ridden tenants.

The jury deliberated and found that all the defendants were guilty of negligence and gross negligence. Thereafter, the jury found that Lefrak Organization was 70% negligent, and Consolidated Edison was 30% negligent. With regard to gross negligence, the jury returned a punitive damage award against Consolidated Edison in the sum of Five Million Dollars, and against Lefrak Organization in the sum of Four Million Dollars. Before the jury proceeded to determine the amount of compensatory damages that the plaintiff would be entitled to, defendant Lefrak Organization settled the punitive damage award for an undisclosed amount and compensatory damages in the sum of $200,000.00. Because of media publicity, both sides and the Court agreed to submit the question of compensatory damages to a new panel. The defendant Consolidated Edison brings this post-verdict motion to set aside the finding of negligence and gross negligence, and the Five Million Dollar punitive damage award. Alternatively, Consolidated Edison seeks to reduce the punitive damage award as being excessive.

Defendant Consolidated Edison moves to set aside the jury verdict for the following reasons: that defendant had a statutory and contractual right to terminate said service due to defendant Lefrak's non-payment of a bill duly tendered; that as a matter of law the utility company may not be cast in damages as a result of an interruption of electrical services where there is no contract between plaintiff and defendant for the service that is being interrupted; that the jury verdict must be set aside in that plaintiff was contributorily negligent as a matter of law; that the jury verdict should be set aside insofar as it relates to punitive damages in that plaintiff has failed to establish her right to such damages as a matter of law; or in the alternative, that the punitive damage award should be reduced in that it is grossly excessive.

I. PLAINTIFF'S COMMON LAW ACTION AGAINST DEFENDANT FOR NEGLIGENCE

Defendant claims that they may not be cast in damages as a result of the interruption of electrical service since there was no contract between the plaintiff and the defendant for the service that was interrupted.

In the leading case cited by defendant, Moch Co., v. Rensselaer Water Company, 247 N.Y. 160, 159 N.E. 896 (1928), the Court of Appeals held that a property owner could not maintain an action against the defendant water company for failure to furnish an adequate supply of water to extinguish a fire which destroyed plaintiff's warehouse. The defendant water company contracted with the City of Rensselaer for the supply of water to its citizens. The plaintiff alleged that while the defendant had been promptly notified of the fire, it had omitted and neglected to supply a sufficient and adequate supply of water to extinguish the fire.

The plaintiff would have us hold that the defendant when once it entered upon the performance of its contract with the city, was brought into such a relationship with everyone who might potentially be benefited through the supply of water at the hydrants as to give to negligent performance . . . the quality of tort. . . . We are satisfied that liability would be unduly and indeed indefinitely extended by this enlargement of the zone of duty. . . . We put aside the problem that would arise if there had been reckless and wanton indifference to the consequences measure and foreseen . . . What we are dealing with at this time is a mere negligent omission, unaccompanied by malice or other aggravating elements.

Moch at p. 169, 159 N.E. at p. 898-899.

In each case cited by defendant Consolidated Edison, it was alleged that the utility company had failed to maintain or perpetuate service, but none of the plaintiffs claimed an affirmative act of negligence. The decisions indicate the Courts' concern that the extension of liability under the circumstances described would unduly extend a corporate defendant's liability to an indefinite and unforeseeable number of beneficiaries. Beck v. F. M. C. Corp., 53 A.D.2d 118, 385 N.Y.S.2d 956 (4th Dep't, 1976).

Moch and the cases which followed may be distinguished from the case at Bar on a number of grounds. The plaintiff as well as the other tenants in this building were customers of defendant Consolidated Edison. Her claim is not as a member of the public in general. This case presents the very situation reserved by the Court in Moch. Here we are faced with a "reckless and wanton indifference to consequences measured and foreseen". Moch supra, at 169, 159 N.E. at 899. The conduct of Consolidated Edison was not a mere negligent omission. It was proven to the jury's satisfaction that Consolidated Edison, by its agent, Barney Quinn, engaged in conduct which caused a foreseeable injury to a foreseeable plaintiff. It was established that Quinn was entrusted with the discretionary authority to terminate service in the building, and that he recognized the dangers presented. Quinn testified that Consolidated Edison records showed that service was terminated at 6:15 p. m. on a Friday evening. The shut-off resulted in the termination of electricity to all common areas, the termination of elevator service, and water. Testimony at trial indicated that employees of the defendant gained access to the building by representing themselves to be elevator repairmen. Immediately prior to authorizing the termination of service, Mr. Quinn, Consolidated Edison's field manager, discussed with the building superintendent some of the potential hazards presented by the shut off. By making such an inquiry, he evinced a recognition of Consolidated Edison's duty to the 500 tenants in this eighteen-story building, and a conscious awareness of the potential danger to which they were being subjected. As Chief Judge Cardozo succinctly stated:

The hand once set to a task may not always be withdrawn with impunity though liability would fail if it had never been applied at all.

Moch, at p. 169, 159 N.E. at p. 898.

II. DEFENDANT'S STATUTORY AND CONTRACTUAL RIGHT TO TERMINATE SERVICE

Defendant claims it had a statutory and contractual right to terminate the service since defendant Lefrak had neglected to pay a bill. There was testimony that defendant Lefrak paid some Three and a Half Million Dollars a year to defendant Consolidated Edison for utility service in about 150 apartment buildings. The amount of bill in question was insignificant in relation to the total. The defendant claims it complied with, and relies upon, Section 15 of the Transportation Corporations Law of the State of New York with regard to notice. The Statute reads as follows:

1. If any person supplied with gas or electric light by any such corporation shall neglect or refuse to pay the rent or remuneration due for the same or for the wires, pipes or fittings let by the corporation, for supplying or using such gas or electric light or for ascertaining the quantity consumed or used as required by his contract with the corporation, or shall refuse or neglect, after being required so to do, to make the deposit required, such corporation may discontinue the supply of gas or electric light to the premises of such person; and the officers, agents or workmen of such corporation may enter into or upon such premises between the hours of eight o'clock in the forenoon and six o'clock in the afternoon, and separate and carry away any meter, pipe, fittings, wires or other property of such corporation, and may disconnect any meter, pipe, fittings, wires or other works whether the property of the corporation or not, from the mains, pipes or wires of the corporation. But the supply of gas or electric light shall not be discontinued for non-payment of bills rendered for service until and after a five-day written notice has been served upon such person either by delivering the same to such person personally or by mailing the same in post-paid wrapper addressed to such person at premises where service is rendered.

It is also claimed that Paragraph 15 of the Tariff (Contract for electrical service) between Consolidated Edison and Lefrak authorized the termination of the service.

The Statute and Tariff cited do not relieve the defendant from its common law tort liability. The defendant's shut-off records indicate that Consolidated Edison failed to comply with the terms of Section 15 of the Transportation Corporations Law which restricts the termination of service to the hours of 8 a. m. to 6 p. m. The only...