Food Pageant, Inc. v. Consolidated Edison Co.

OPINION OF THE COURT

The case and appeal submitted for our review arises from the 1977 New York City blackout, which left approximately three million customers of Consolidated Edison of New York located in New York City and Westchester County without electrical power. Plaintiff, a grocery store chain, brought suit seeking damages for food spoilage and loss of business. Presented for our consideration is whether a jury verdict finding defendant to have been grossly negligent may stand.

In response, Con Edison maintained that the Hudson-Farragut tie was out of operation because of the prior failure of a complex piece of machinery, that the Indian Point 2 plant was also justifiably out of service for repairs, and that the gas turbines were not in operation at the time of the incident because the anticipated period of peak power demand, during which the turbines were normally used, had expired earlier in the evening. Con Edison also maintained that its inspection program for circuits and relays conformed to the appropriate engineering standards and that the lightning protection on the Con Edison towers and lines was adequate and properly designed. In respect to its employee, Con Edi

Before submitting the case to the jury, the trial court instructed its members that they could return a verdict for the plaintiff only if they found that defendant had been grossly negligent. As Trial Term recognized, under the terms of Con Edison’s rate schedule, the utility cannot be held liable for interruption of service due to the ordinary negligence of its agents and employees. It does, however, remain liable for gross negligence. In Weld v Postal Telegraph-Cable Co ( 199 NY 88 , 98), this court recognized that the liability of a public utility should be limited to damages arising from the utility’s willful misconduct or gross negligence. Later, after a retrial, the court further addressed the meaning of this standard (Weld v Postal Telegraph-Cable Co., 210 NY 59 ). Briefly, gross negligence had been termed as the failure to exercise even slight care. In the present case, following the charge to the jury which incorporated the standard of gross negligence, the jury returned a verdict finding that the defendant had indeed been grossly negligent; that this gross negligence was the proximate cause of the plaintiff’s damage; and that plaintiff was entitled to compensation in the amount of $40,500. The Appellate Division affirmed the judgment, without opinion, and granted leave to appeal to this court.

Defendant now argues, initially, that the evidence was insufficient to warrant submission of plaintiff’s case to the jury. Our review of the record indicates, however, that there was sufficient evidence of the defendant’s gross'negligence to present this issue for jury determination. It is also urged that although plaintiff attempted to detail the manner in which the blackout occurred, it never identified any standard of care from which Con Edison departed. Specifically, defendant maintains that a fatal defect in plaintiff’s case was its failure to demonstrate, by expert testimony, the sound engineering and other practices which Con Edison failed to follow.

Generally, the particular standard of care which a defendant is judged against in a given case is a factual matter for the jury (Prosser, Torts [4th ed], p 207). In the ordi

It is clear that certain issues, because of their scientific or technical complexity, require the special expertise of an expert witness (see 7 Wigmore, Evidence [Chadbourn rev, 1978], § 2090). However, even assuming that the scientific or technical complexity of certain cases may necessitate the introduction of expert testimony relating to the appropriate standard of care, the alleged failure to introduce such testimony in this case is not fatal because there was ample evidence upon which the jury could have based its determination of gross negligence unaided by the guidance of expert testimony concerning the appropriate standard of behavior. Thus, by analogy, although expert testimony is ordinarily called for in medical malpractice actions, “when common sense and ordinary experience suggest that the condition [for which suit is brought] is incompatible with skillful or successful treatment”, expert testimony may not be necessary (1 NY PJI2d 393) and, indeed, where the facts can be placed before a jury, and they are of such a nature that jurors generally are just as competent to form opinions in reference to them, then there is no occasion to resort to expert or opinion evidence.

In support of its contention that defendant had acted with gross negligence, plaintiff alleged and proved the existence of several circumstances under defendant’s control which could have contributed to the eventual blackout. It was well within the competence of the jury to evaluate defendant’s actions based upon the factual presentation alone. Chief among these actions was the behavior or lack of action of Con Edison’s system operator on the night of the blackout. Within seven minutes of the initial lightning bolt which struck the Con Edison system at 8:37 P.M., the New York

Defendant’s final contention concerns the use of a general verdict in this case. Defendant argues that the several alleged shortcomings in its procedures which plaintiff sought to prove, including Con Edison’s failure to have sufficient power sources on the night of the blackout and its ultimate handling of the evolving emergency situation, were each discrete theories of liability presented to the jury. Because not all of these discrete “theories of liability” were, according to defendant, supported by legally sufficient evidence, the rendering of a general verdict requires a new trial because it is impossible from this verdict to determine if the jury based its judgment on a theory supported by the evidence. In Davis v Caldwell ( 54 NY2d 176 , 178 [decided herewith] ), we noted that “ [w] hen multiple theories of liability have been submitted to a jury which is instructed to return a general verdict only, a judgment entered on such a verdict in favor of the plaintiff must be reversed when the proof was insufficient for submission as to one or more of those theories.” There, the court presented the jury with five separate theories of liability and instructed the jury that although it was to decide all five of plaintiff’s claims, it was to return only one general verdict. The court further instructed the jury that if it found in favor of plaintiff on any one claim, it would award a dollar amount but would not make known on which of the claims it had found for plaintiff.

Accordingly, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.