Shankman v. Consolidated Edison Co.

• Decision Date: 07 April 1978
• Citation: 94 Misc.2d 150,404 N.Y.S.2d 787
• Parties: Harold SHANKMAN, Plaintiff, v. CON EDISON, Defendant.
• Court: New York City Court

Page 787

404 N.Y.S.2d 787

94 Misc.2d 150

Harold SHANKMAN, Plaintiff, v. CON EDISON, Defendant.

Civil Court of the City of New York,Kings County, Small Claims Part.

April 7, 1978.

Harold Shankman, pro se.

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

OPINION

BERNARD KLIEGER, Judge.

At the outset, the Court ordered the consolidation for purposes of trial of the actions brought against Consolidated Edison Company of New York by the named plaintiff and Paula Telni, Solomon Bakalchuck, Roger Ahearn, Alan Ihne, Keith Myers, Fay Willner, Orazio Pellitteri, Robert Taylor, Frank Gallo, Fred Shor and Richard Russel. Others have since been referred to this Court for the same purpose.

All of the actions seek recovery for damages suffered as the result of the power blackout which started in New York City and its environs at approximately 9:37 P.M. on July 13, 1977 and continued until sometime on July 14, 1977.

The proof in the Shankman case consisted of a concession of the occurrence and the amount of that plaintiff's damages. The defendant moved to dismiss on the ground that plaintiff failed to make a prima facie case and that defendant's rate schedule, filed with and approved by the Public Service Commission, provides that it would not be liable for damages resulting from ordinary negligence.

The Court reserved decision on the defendant's motion with the stipulation that the motion would be treated as relating to all the other plaintiffs' cases. If the Court decided the motion adversely to the defendant, the other plaintiffs in the consolidated trial would be given the opportunity to produce evidence bearing on their individual damage claims.

In a community in which each citizen's welfare depends in large degree on continuous electrical service, the occurrence of a power failure is evidence that "there is a defect somewhere. Where and what it is is known only to the experts in the use and management of electricity". (Texas Power & Light Co. v. Bristow, 213 S.W. 702, 705 (Texas Civ.App. writ refused)).

The difficulty in the case at bar is that the "experts" who are under the control of the defendant have not come forth to enlighten the Court. The Court is therefore relegated to those inferences which may be drawn from the occurrence itself.

There are theoretically many causes for the blackout which brought New York City to a standstill the night of July 13, 1977. The possible causes which point to defendant's negligence are so probable, in view of the circumstances, and those which exonerate defendant are so improbable, that it is unnecessary for a plaintiff to illustrate how the event occurred. The instrumentality being in the exclusive control of defendant, the circumstances call for the application of the doctrine of res ipsa loquitur (Bressler v. New York R.T. Corp., 270 N.Y. 409, 413, 1 N.E.2d 828, 829).

"The doctrine (res ipsa loquitur) merely means that certain occurrences contain within themselves a sufficient basis for an inference of negligence, and it does not differ from ordinary cases of circumstantial evidence except in the respect that the facts and circumstances from which the inference of negligence is drawn are immediately attendant on the occurrence." (Foltis, Inc. v. City of New York, 287 N.Y. 108, 116, 38 N.E.2d 455, 460).

The defendant contends that res ipsa loquitur may lead to the conclusion that a defendant has not exercised reasonable care. Since its tariff schedule provides that it will not be liable for ordinary negligence, defendant claims plaintiff has not made out a prima facie case by reason of the failure to prove gross negligence. Defendant also claims that the limitation on its liability has found approval in many courts of this state, citing Hamilton Employment Service v. New York Telephone Co., 253 N.Y. 468, 171 N.E. 710, and other cases.

Hamilton dealt with an error in a telephone directory, the publication of which the Court of Appeals held was not the primary business of a telephone company. Hence, the court found the company could limit its liability.

Defendant also relies on a decision of the Appellate Term, Second and Eleventh Judicial Districts, Newman v. Consolidated Edison Co., Inc., 79 Misc.2d 153, 360 N.Y.S.2d 141, which indicates that this defendant's exemption from liability for ordinary negligence might be based on Hamilton (supra), Leitner v. N.Y. Telephone Co., 277 N.Y. 180, 13 N.E.2d 763, and Public Service Law § 66, subdivisions 5 and 12. None seems in point.

Leitner involved the refusal of the New York Telephone Company to reinstate coin box service in two cigar stores. The Public Service Law sections involve the power of the Public Service Commission to investigate and approve rates and forms of contracts. If rules of liability are to be formulated or changed, such formulation or change should derive from pronouncements of the Legislature or Court of Appeals. (Bierman v. Cons. Ed....