Shaid v. Consolidated Edison Co. of New York, Inc.

• Decision Date: 24 October 1983
• Citation: 95 A.D.2d 610,467 N.Y.S.2d 843
• Parties: Sadie SHAID, Respondent, v. CONSOLIDATED EDISON COMPANY, OF NEW YORK, INC., Appellant.
• Court: New York Supreme Court — Appellate Division

Page 843

467 N.Y.S.2d 843

95 A.D.2d 610

Sadie SHAID, Respondent, v. CONSOLIDATED EDISON COMPANY, OF NEW YORK, INC., Appellant.

Supreme Court, Appellate Division,

Second Department.

Oct. 24, 1983.

Ernest J. Williams, New York City (Cahill, Gordon & Reindel, New York City, William E. Hegarty, Thomas J. Kavaler, Vincent E. Gentile and Lisa Schilit, New York City, of counsel), for appellant.

Abbott & Bushlow, P.C., Ridgewood (Bruce E. Bushlow and Richard Cary Spivack, Ridgewood, of counsel), for respondent.

Before DAMIANI, J.P., and GIBBONS, THOMPSON, O'CONNOR and BOYERS, JJ.

O'CONNOR, Justice.

This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a fall down a staircase in her apartment building during an interruption of electric power service to more than three million households in New York City and Westchester County on the evening of July 13, 1977. Plaintiff avers that defendant Con Edison Company of New York, Inc.'s (hereinafter Con Ed) gross negligence in permitting the blackout, which resulted in the sudden darkening of the stairway she was ascending, caused her accident. As in Goldstein v. Consolidated Edison Co. of N.Y., 93 A.D.2d 589, 462 N.Y.S.2d 646, plaintiff moved for partial summary judgment to preclude Con Ed from litigating the issue of its gross negligence on the basis of collateral estoppel arising from an earlier judgment against it in Food Pageant v. Consolidated Edison Co., 54 N.Y.2d 167, 445 N.Y.S.2d 60, 429 N.E.2d 738. I agree with the decision of the majority in Goldstein (supra) that plaintiff was entitled to such offensive use of the Food Pageant (supra) decision in order to preclude defendant from relitigating this issue.

In Food Pageant (supra) a jury awarded a grocery chain $40,500 in damages for food spoilage and lost business. The verdict was upheld on appeal despite Con Ed's arguments that (1) there had been no evidence of gross negligence, (2) there had been no expert testimony on the negligence issue, as part of plaintiff's case, and (3) the verdict asked of the jury was a general one.

Plaintiff argued in her moving papers that Food Pageant (supra) was dispositive on the issue of Con Ed's gross negligence in causing the blackout. In opposing plaintiff's motion, Con Ed made the following points: (1) more than 550 actions had been commenced against it to recover damages allegedly sustained as a consequence of the blackout, and of these 380 were still pending, claiming in the aggregate more than two hundred million dollars in damages; (2) plaintiffs in some of these cases were moving for partial summary judgment on the gross negligence issue following the result in Food Pageant (supra); (3) the jury in Food Pageant (supra) awarded $40,500 in damages despite Food Pageant's argument on summation that it had limited itself in its ad damnum clause to $75,000 but had nevertheless proved $38,000 in food spoilage and $43,000 in lost business for a total of $81,000 in damages, or precisely twice the amount awarded; (4) except for Food Pageant (supra), all decisions on the issue of Con Ed's gross negligence in the blackout had been decided in its favor; (5) Con Ed was publicly blamed by New York City officials for the blackout, and one news article reported that the Borough President of the Borough of Manhattan had commenced the first action against it, seeking one billion dollars in damages; and (6) a number of "independent investigative reports" were prepared following the blackout, including one by a special consultant appointed by the Public Service Commission at the Governor's request and another by a staff task force of the Department of Public Service.

In reply, plaintiff pointed out that the decisions in Con Ed's favor were made in the small claims part of The Civil Court of the City of New York, that the contention that the jury in Food Pageant (supra) arrived at a compromise verdict was sheer speculation, and that Con Ed made no argument that it had newly discovered evidence that would impeach the verdict in Food Pageant (supra).

Special Term granted plaintiff's motion to the extent it sought to preclude relitigation of the issue of Con Ed's gross negligence in causing the blackout, but held that there were questions of fact, inter alia, as to whether Con Ed owed a duty of care to plaintiff.

On appeal, Con Ed reiterates the arguments that there were inconsistent prior determinations and a compromise verdict in Food Pageant (supra), and raises several new arguments, namely: (1) that the issue of Con Ed's gross negligence cannot be determined apart from plaintiff's alleged negligence, therefore the issues in the case at bar are not identical to the issues in Food Pageant (supra), (2) that Con Ed's incentive to fully litigate in Food Pageant (supra) was moderated by the size, absolute, and relative to outstanding aggregate claims, of the damages claimed in that case, (3) that "[t]he public at large, as rate-payers, will ultimately absorb the cost of any damage awards assessed against" defendant, and (4) that the official investigative reports which concluded that the blackout resulted from causes inconsistent with gross negligence on Con Ed's part, had not been placed before the jury in the Food Pageant case. It is Con Ed's position that these factors take this case out of the rule laid down by the Court of Appeals in Schwartz v. Public Administrator of County of Bronx, 24 N.Y.2d 65, 71, 298 N.Y.S.2d 955, 246 N.E.2d 725:

"Although we have not previously said so, it is now evident that New York has adopted the full and fair opportunity test in applying the doctrine of collateral estoppel. (Zdanok v. Glidden Co., 327 F.2d 944, 956 [2d Cir., FRIENDLY, J.], cert. den. 377 U.S. 934 [84 S.Ct. 1338, 12 L.Ed.2d 298]; Graves v. Associated Transp., 344 F.2d 894, 900 [4th Cir.]; Teitelbaum Furs v. Dominion Ins. Co., 58 Cal.2d 601 [25 Cal.Rptr. 559, 375 P.2d 439] [following through on Chief Justice (then Justice) TRAYNOR's seminal decision in Bernhard v. Bank of America, 19 Cal.2d 807, 122 P.2d 892]; Ordway v. White, 14 A D 2d 498, 500-501 [HALPERN, J., concurring], supra; see, also, Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan.L.Rev. 281; Currie, Civil Procedure: The Tempest Brews, 53 Calif.L.Rev. 25, 31; Polasky, Collateral Estoppel--Effects of Prior Litigation, 39 Iowa L.Rev. 217, 250.) New York law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling."

Among the elements to be considered in determining if there has been a full and fair opportunity to contest the decision, i.e., "whether a party has had his day in court", are "such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation" (Schwartz v. Public Administrator of County of Bronx, supra, 24 N.Y.2d p. 72, 298 N.Y.S.2d 955, 246 N.E.2d 725).

Con Ed argues not only that plaintiff has failed to meet the Schwartz test for identity of issue and for a full and fair opportunity to previously litigate the issue, but also that such preclusive effect would deprive it of its constitutional right to due process of the law because the adversarial system is inescapably flawed (citing Parklane Hosiery Co. v. Shore, 439 U.S. 322, 99 S.Ct. 645, 58 L.Ed.2d 552; Blonder-Tongue Labs. v. University of Ill. Foundation, 402 U.S. 313, 91 S.Ct. 1434, 28 L.Ed.2d 788). These arguments are without merit.

As to the question of the identity of the gross negligence issue in both Food Pageant (supra) and the case at bar, it is obvious that Con Ed's gross negligence was not causally interrelated with culpable conduct on the part of plaintiff in either of these cases. Therefore, the issue resolved in Food Pageant (supra) was a discrete one and, having been resolved against Con Ed in that case, the factual determination may be used against Con Ed in the case at bar if the second prong of the Schwartz test has been met. As to that "full and fair opportunity" prong of the test, Con Ed essentially makes two arguments: (1) that the Food Pageant determination is intrinsically suspect because of certain "indications of a compromise verdict" and (2) that that determination is extrinsically suspect because of the existence of inconsistent judgments and exculpatory investigation reports.

As to the compromise verdict argument, Special Term properly characterized it as "mere speculation". Apart from the obvious fact that the award of $40,500 in Food Pageant (supra) was exactly one-half the amount of damages allegedly proved, Con Ed failed even to suggest a reason for a jury's discounting by half this total sum, nor attempted to rebut plaintiff's point that the damages were roughly attributable half to inventory losses and half to the less easily ascertainable loss of business. More significantly, however, Con Ed did not raise this issue on its appeal from the judgment in Food Pageant (supra); its belated collateral attack is therefore unpersuasive.

As to the extrinsically suspect nature of the Food Pageant decision, Con Ed argues, dehors the record, that exculpatory material in the "authoritative" reports (e.g., its inability to raise new capital for systems improvements) was ruled inadmissible during the Food Pageant trial. Again, of course, this alleged error was cognizable upon appeal and, not having been pressed on direct appeal from the judgment, is entirely unpersuasive in what would amount to...