Lee v. Consolidated Edison Co. of New York

• Decision Date: 01 June 1978
• Citation: 95 Misc.2d 120,407 N.Y.S.2d 777
• Parties: William J. LEE, Plaintiff, v. CONSOLIDATED EDISON CO. OF NEW YORK, Defendant. * Civil Court of the City of New York, New York County
• Court: New York City Court

Page 777

407 N.Y.S.2d 777

95 Misc.2d 120

William J. LEE, Plaintiff, v. CONSOLIDATED EDISON CO. OF NEW YORK, Defendant. ^*

Civil Court of the City of New York, New York County.

June 1, 1978.

Plaintiffs pro se.

Williams & O'Neill by Ronald A. P. Rock, New York City, for defendant.

Public Utility Law Project, Albany, Laura Jacobson, Albany, of counsel and on the brief, amicus curiae for plaintiffs Charles Bloom and Hilliard A. Cohen.

New York State Food Merchants Association, Inc. by Howard B. Weinreich, New York City, amicus curiae for plaintiff Harry Feldstein.

MYRIAM J. ALTMAN, Judge.

The July 13-14, 1977 system-wide blackout in the New York metropolitan area brought public attention to the fact that the Consolidated Edison Company of New York (Con Ed) claims an exemption from liability for ordinary negligence based upon an exculpatory clause in its tariff, or rate schedule, on file with the Public Service Commission (PSC). At a time when "the uninterrupted continuity" of electric service "is essential to health and safety" (Memphis Light, Gas and Water Division v. Craft, --- U.S. ----, ----, n.15, 98 S.Ct. 1554, 1563, n.15, 56 L.Ed.2d 30) the impact of such an exemption demands that its validity be seriously questioned. An examination of the applicable law leads me to the conclusion that the public policy and law of this State require rejection of Con Ed's exculpatory provision as a defense in the cases before me. Following a preliminary description of the history of those cases and my findings of fact and conclusions of law concerning ordinary and gross negligence, I will discuss the official status of the tariff, my jurisdiction to review the validity of the exemption, the New York law and public policy applicable to exculpatory agreements involving public interest and a determination of Con Ed's liability to the various plaintiffs.

These 14 plaintiffs instituted small claims actions against Con Ed to recover damages incurred as a result of the July, 1977 blackout. The plaintiffs fall into two categories, those who have a direct contractual relationship with Con Ed and those who lost wages because their places of employment were closed during the blackout.

After the cases were called, the parties in each case stipulated that a blackout occurred on July 13, 1977, and that power was restored at varying times to different locations in Manhattan on July 14, 1977. The Con Ed blackout report (Third Phase Report, System Blackout and System Restoration, July 13-14, 1977, 5 Volumes (hereinafter Third Phase Report)) was admitted into evidence in plaintiffs' cases as an admission of defendant. I then made the following findings in each case: 1) that the fact of the blackout's occurrence was prima facie evidence of negligence under the doctrine of res ipsa loquitur; and 2) that defendant, with exclusive knowledge of why the blackout occurred, had the burden of coming forward with evidence that the blackout did not occur as a result of its negligence and that it was not negligent in taking so much time to restore power. I then took testimony in each case as to damages and made findings on that issue.

At the close of all the plaintiffs' cases the defendant rested, relying predominantly on its tariff, which provides in relevant part:

"The Company will endeavor at all times to provide a regular and uninterrupted supply of service, but 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 therefor" (PSC No. 8, Sixth Revised Leaf No. 19, eff. June 17, 1977).

Defendant then moved to dismiss all of the cases on the grounds that a finding of gross negligence cannot be based upon res ipsa loquitur and that the plaintiffs had not proven gross negligence. With respect to the wage earners, Con Ed moved to dismiss on the additional ground that there is no liability to those persons because they do not have a direct contractual relationship with Con Ed. Decision was reserved.

I now find that defendant Con Ed was negligent. I make this finding on the basis of res ipsa loquitur and, independently, in reliance upon the various blackout reports which are described below. These two bases will be discussed in turn.

The res ipsa loquitur doctrine is a rule of evidence from which a permissible inference of negligence may be drawn (Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455). It is operative "where the agency causing the injury is under the control or management of the one charged with negligence and the surrounding circumstances are such that the accident would probably not have occurred if reasonable diligence had been exercised" (41 N.Y.Jur., Negligence, § 87, p. 105).

In relying on res ipsa loquitur, plaintiffs need not demonstrate single control by defendant over the New York City power supply (see Corcoran v. Banner Super Market, 19 N.Y.2d 425, 430-33, 280 N.Y.S.2d 385, 387-390, 227 N.E.2d 304, 305-307; Schroeder v. Bank of Albany, 293 N.Y. 370, 374, 57 N.E.2d 57, 59) and, indeed, Con Ed stated as much when it relied on the same cases in a recent unrelated Court of Appeals case, De Witt Properties, Inc. v. City of N.Y. and Consol. Edison Co. of New York, 44 N.Y.2d 417, 406 N.Y.S.2d 16, 377 N.E.2d 461 (dec. May 11, 1978)). Whatever roles lightning, the New York Power Pool and other utility companies played in the blackout are not significant at this point, for Con Ed's almost complete control (see Third Phase Report, Vol. V, p. 111) is sufficient indication "that it Probably was the defendant's negligence which caused" the blackout (Corcoran v. Banner Super Market, 19 N.Y.2d 425, 432, 280 N.Y.S.2d 385, 389, 227 N.E.2d 304, 306, supra). It is improbable that the blackout would have occurred if Con Ed had been reasonably careful (see Shankman v. Con Edison, Civ.Ct., 404 N.Y.S.2d 787 (Klieger, J.) and cases cited therein; see, also, Foltis, Inc. v. City of New York, 287 N.Y. 108, 38 N.E.2d 455). Plaintiffs' reliance on res ipsa loquitur is therefore appropriate.

Because no presumption arises through use of res ipsa loquitur, even if defendant fails to come forward with evidence to explain the occurrence, the burden of proof remains with plaintiff (Wetsell v. Reilly, 159 App.Div. 688, 145 N.Y.S. 167). The trier of fact must make the ultimate determination of whether defendant was negligent (Davis v. Goldsmith, 19 A.D.2d 514, 240 N.Y.S.2d 148). I find that, on the proof submitted at the trials, defendant was negligent.

Additionally, and on my own motion, I take judicial notice of: "A Report by a Staff Task Force from the Department of Public Service to the Governor of the State of New York on the Events Leading to the Consolidated Edison Company Blackout of July 13, 1977"; "Second Report The Events Leading to the Consolidated Edison Company Blackout of July 13, 1977 by a Staff Task Force from the Department of Public Service" (hereinafter Second Report); and "State of New York Investigation of the New York City Blackout July 13, 1977" (hereinafter State Report), which was issued in January, 1978 (see Matter of Siwek v. Mahoney, 39 N.Y.2d 159, 383 N.Y.S.2d 238, 347 N.E.2d 599; Matter of Sunhill Water Corp. v. Water Resources Comm., 32 A.D.2d 1006, 301 N.Y.S.2d 935; Public Service Law, § 16). Defendant cites the State Report in its reply brief, pp. 38-39.

I take judicial notice of these reports even though I do not have certified copies thereof (see Public Service Law, § 17). These are small claims actions where the aim is to do substantial justice between the parties and the court is not "bound by statutory provisions or rules of practice, procedure * * * or evidence" (CCA, § 1804).

I make independent findings that Con Ed was negligent in allowing the blackout to occur and that it was negligent in the restoration of power. I base these findings on the reports in their entirety, having also considered Con Ed's reports and having determined as the trier of fact that the PSC reports should receive more evidentiary weight. The following are examples of instances of negligence:

1. Incorrect relying operation, including the erroneous opening of the 345kv circuit breakers at Ladentown on line Y88 at 8:37 p. m. (Second Report, p. II-6).

2. Failure to shed load on at least 5 occasions between 8:57 p. m. and 9:22 p. m., after being told to do so by the Pool Senior Pool Dispatcher (Second Report, pp. III-4, IV-8; see, also, State Report, p. 13) and failure to exercise reasonable, independent judgment regarding the need for load shedding (State Report, p. 50).

3. Unsuccessful manual load shedding due either to faulty equipment or human failure (Second Report, p. III-6).

4. Unqualified or improperly trained personnel in charge of load shedding decision-making (Second Report, p. III-12).

5. Reliance on reserve power to be provided by gas turbines when some of these machines were not staffed around the clock and could not be started up by remote control (Third Phase Report, Vol. V, p. 85; Second Report, III-18).

6. Con Ed's supply of erroneous data to the Power Pool and its failure to update information previously furnished the Pool (Second Report, pp. III-17, IV-3; Third Phase Report, Vol. V, pp. 72-3; State Report, p. 30).

7. Improper design for contingency problems anticipated at Buchanan in 1973 (State Report, p. 34).

8. Inadequate testing procedures (State Report, p. 39).

9. Failure to treat the lack of reasonable safety margin as an emergency during the period between 8:37 p. m. and 8:55 p. m. (State Report, p. 42).

10. Failure to plan for high system voltage conditions during a blackout and the effects of high voltage on equipment, and over-reliance on pressure in underground cables which is lost several hours after loss of power (Third Phase Report, Vol. I, pp. 20-23).

My independent findings of negligence, made on my own motion, do not deprive p...