Last week the NYS Senate and Assembly heard testimony for 12 hours about the recent Con Ed outages. The link to the testimony can be found below. Municipal officials (including me) testified around the 11th hour of the hearing. I recommended that the state give the Governor emergency powers to overrule Con Ed. I also believe that the National Guard should be called in after the storm to assist Con Ed removing downed trees that block roads. That would expedite restorations in the future. And pointed out that Con Ed only trims tree branches impacting Con Ed wires. Verizon and Altice have wires below Con Ed wires. Con Ed doesn’t have an agreement to trim those wires. Makes no sense. If a tree branch falls on a Altice or Verizon wire Con Ed’s power could also be lost. i also suggested that Con Ed give ratepayers automatic refunds for days on which they do not have power.
A SUGGESTION- NYS LEGISLATURE SHOULD AMEND THE LAW TO MAKE IT EASIER TO SUE UTILITIES FOR DAMAGES - IN EVENT OF FUTURE OUTAGES IF CON ED WAS NOT PREPARED The hearing that the State Legislature held last week is not the first time the Legislature held hearings or conducted investigations about power outages. After each prolonged power outage Con Ed apologies, usually is fined, elected officials express outrage, and then the next time there is a major storm the same thing happens again.
I think the Legislature and Governor should approve a law that would make it easier to successfully file a lawsuit and seek damages for property damage and storm caused expenses if it is proven that Con Ed did not use reasonable care in preparing for the storm by having adequate crews on the ground immediately after a storm and in responding to outages caused by the storm. I will be contacting lawmakers.
Lawsuits by ratepayers have been tried before. They generally assert the utility has a legal duty to provide service. Lawsuits of this ilk have not been successful. See article in Reuters below. The Legislature and the Governor need to give to ratepayers more protection.
http://blogs.reuters.com/alison-frankel/2012/11/09/can-customers-sue-power-companies-for-outages-yes-but-its-hard-to-win/.
ANOTHER POSSIBLE LEGAL ALTERNATIVE FOR SOME MUNICIPALITIES
A review of the Town’s franchise grant with Con Ed’s predecessor in interest indicates that the utility is responsible for any damages caused by its negligence.
I think it may be worth considering the Town and other local governments suing Con Ed for damages. The suit would be based on the straight-forward claim that Con Ed’s preparation for the storm and the post-storm remedial response were negligent, and thus Con Ed is responsible for damages. I would support an action if an attorney would offer to take a case on contingency (no taxpayer dollars would be used).
This would be different from the class actions brought by ratepayers before that have not been successful. This suit would be by the Town and other government entities which choose to participate which granted the franchise, and based on the specific language in the franchise grant holding the utility responsible for damages caused by its negligence. Direct Damages: The Town incurred direct damages. These include substantial clean-up expenses and Police Dept. and other public safety expenses. Consequential Damages: The Town probably also incurred consequential damages in the form of reduced revenues from its share of sales taxes due to the decreased commercial activity following the storm.
Presumably, the franchise grants from other Westchester municipalities have similar “responsibility for damages caused by negligence” language, and other Westchester municipalities might be willing to join the lawsuit.
Parens Patriae: Additionally, the Town might also be able to sue
parens patriae on behalf of damages incurred by its residents. I believe the Charter of the City of New York gives NYC the right to bring suits on behalf of its residents. We are looking into this. If the Town has the right to sue on behalf of residents, the claims could be quite large.
If you are an attorney and interested in discussing representing municipalities and their residents on a contingency basis, please e mail me at
pfeiner@greenburghny.com.