With Hurricane Sandy blowing through many people and businesses are expected to lose power. As a result of the loss of power there are likely to be many injuries and damages. People may trip and fall in darkened staircases, food in homes and grocery stores will go bad without refrigeration, and car accidents may occur due to lack of traffic lights. Can the power companies be held liable for loss of power during a storm? Usually, the electric companies, such as Con Ed, LIPA, etc. cannot be held accountable for loss of power during a storm except under special circumstances.
The New York State Court of Appeals has held that the liability of a public utility should be limited to damages arising from the utility’s willful misconduct or gross negligence. This is because most suppliers of electricity in New York under the tariff or rate schedule filed with the Public Service Commission (PSC) has a provision which sates that they:
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.
Current New York Law on the issue was clarified following the 1977 New York City wide blackout caused by two lightning strikes hitting Con Ed equipment. At a trial in the case of FOOD PAGEANT, INC., v. CONSOLIDATED EDISON CO., it was held that Con Ed was grossly negligent in maintaining their facilities and reacting to the storm and lightning strikes. A jury agreed and the courts upheld the verdicts. Thus any person who had a contract for power with Con Ed and who was damaged due to a loss of that power was entitled to recover for their damages. However, the utility did not owe any duty to those persons who lacked a direct contractual arrangement with it.
Specifically the New York State Court of Appeals has held that:
that in the case of a blackout of a metropolis of several million residents and visitors, each in some manner necessarily affected by a 25-hour power failure, liability for injuries in a building’s common areas should, as a matter of public policy, be limited by the contractual relationship
The issue has since been revisited following other storms. In the case of DUNLAY v. NIAGARA MOHAWK POWER CORPORATION the court held that
The storm of October 3–4, 1987 was an unprecedented “Act of God.” Nature caused the outage, not any negligence on the part of the defendant. But, what of the restoration? Can any gross negligence be imputed to defendant regarding the restoration efforts? On the record before it, the Court thinks not.
Similarly, following another blackout it was held in the case of SCHLESINGER v. CON EDISON COMPANY OF NEW YORK, INC. that:
This Court finds that the evidence gathered to date indicates that the August 14, 2003 blackout resulted from events outside of Con Edison’s service area and was not caused by a failure of Con Edison’s local distribution system. No evidence has been presented proving that Con Edison was either negligent or grossly negligent in causing the August 14, 2003 blackout. Con Edison restored service as soon as practical. Under the circumstances in the instant case, there is no liability by defendant for claimant’s food spoilage and therefore for any damages proximately caused by the August 14–15, 2003 interruption of electric service to claimant’s premises.
So, will the power companies be held liable for damages caused by blackouts in October of 2012? Only if it can be shown that the damages were caused by the gross or willful negligence of the power company, and that the damages were incurred by a customer of the power company due to loss of power to be supplied under an agreement.
Of course the electric companies can be sued for their ordinary negligence in many other situations, other than loss of power, and an attorney should be contacted to determine your rights in any specific situation. Also, entities other than the power company may be responsible for accidents incurred during a blackout.
If you believe that you have been injured due to the actions or negligence of a Power or Utility Company, or any other entity, you should contact an attorney. Zalman Schnurman & Miner are personal injury attorneys dedicated to representing the accident victims. For a free consultation call 1-800-LAWLINE (1-800-529-5463).
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