Torts - Cases, Principles, and Institutions Fifth Edition, 2016a

Witt & Tani, TCPI 8. Duty Problem
Additionally, we deal here with a system-wide power failure occasioned by what has
already been determined to be the utility’s gross negligence. If liability could be found here, then
in logic and fairness the same result must follow in many similar situations. For example, a
tenant’s guests and invitees, as well as persons making deliveries or repairing equipment in the
building, are equally persons who must use the common areas, and for whom they are maintained.
Customers of a store and occupants of an office building stand in much the same position with
respect to Con Edison as tenants of an apartment building. . . . [P]ermitting recovery to those in
plaintiff’s circumstances would, in our view, violate the court’s responsibility to define an orbit of
duty that places controllable limits on liability. . . .
In sum, Con Edison is not answerable to the tenant of an apartment building injured in a
common area as a result of Con Edison’s negligent failure to provide electric service as required
by its agreement with the building owner. Accordingly, the order of the Appellate Division
should be affirmed, with costs.
MEYER, J., dissenting.
My disagreement with the majority results not from its consideration of public policy as a
factor in determining the scope of Con Ed’s duty, but from the fact that in reaching its public
policy conclusion it has considered only one side of the equation . . . .
As Professors Prosser and Keeton have emphasized, “The statement that there is or is not
a duty begs the essential question—whether the plaintiff’s interests are entitled to legal protection
against the defendant’s conduct . . . .”
. . .
The majority’s blind acceptance of the notion that Consolidated Edison will be crushed if
held liable to the present plaintiff and others like him ignores the possibility that through
application to the Public Service Commission Con Ed can seek such reduction of the return on
stockholders’ equity . . . , or increase in its rates, or both, as may be necessary to pay the
judgments obtained against it. It ignores as well the burden imposed upon the persons physically
injured by Con Ed’s gross negligence or, as to those forced to seek welfare assistance because
their savings have been wiped out by the injury, the State. Doing so in the name of public policy
seems particularly perverse, for what it says, in essence, is the more persons injured through a
tortfeasor’s gross negligence, the less the responsibility for injuries incurred.
WACHTLER, C.J., and SIMONS, ALEXANDER and TITONE, JJ., concur with KAYE, J.
MEYER, J., dissents and votes to reverse in a separate opinion in which JASEN, J., concurs.
Notes
1. Liability for public utilities. Unlike the New York Court of Appeals in Moch and Strauss,
other courts have refused to immunize utility companies from liability incurred by third parties.
After the New York Court of Appeals decided Moch, the Pennsylvania Supreme Court held that a
defendant-utility company could be liable for negligence even though the plaintiff had no
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