Shaid v. Consolidated Edison Co. of New York, Inc.

OPINION OF THE COURT O’Connor, J. This is an action to recover damages for personal injuries allegedly sustained by plaintiff in a fall down a staircase in her apartment building during an interruption of electric power service to more than 3,000,000 households in New York City and Westchester County on the evening of July 13,1977. Plaintiff avers that defendant Con Edison Company of New York, Inc.’s (hereinafter Con Ed) gross negligence in permitting the blackout, which resulted in the sudden darkening of the stairway she was ascending, caused her accident. As in Goldstein v Consolidated Edison Co. (93 AD2d 589), plaintiff moved for partial summary judgment to preclude Con Ed from litigating the issue of its gross negligence on the basis of collateral estoppel arising from an earlier judgment against it in Food Pageant v Consolidated Edison Co. (54 NY2d 167). I agree with the decision of the majority in Goldstein (supra) that plaintiff was entitled to such offensive use of the Food Pageant (supra) decision in order to preclude defendant from relitigating this issue. In Food Pageant (supra) a jury awarded a grocery chain $40,500 in damages for food spoilage and lost business. The verdict was upheld on appeal despite Con Ed’s arguments that (1) there had been no evidence of gross negligence, (2) there had been no expert testimony on the negligence — 612 — issue, as part of plaintiff’s case, and (3) the verdict asked of the jury was a general one. Plaintiff argued in her moving papers that Food Pageant (supra) was dispositive on the issue of Con Ed’s gross negligence in causing the blackout. In opposing plaintiff’s motion, Con Ed made the following points: (1) more than 550 actions had been commenced against it to recover damages allegedly sustained as a consequence of the blackout, and of these 380 were still pending, claiming in the aggregate more than $200,000,000 in damages; (2) plaintiffs in some of these cases were moving for partial summary judgment on the gross negligence issue following the result in Food Pageant (supra); (3) the jury in Food Pageant (supra) awarded $40,500 in damages despite Food Pageant’s argument on summation that it had limited itself in its ad damnum clause to $75,000 but had nevertheless proved $38,000 in food spoilage and $43,000 in lost business for a total of $81,000 in damages, or precisely twice the amount awarded; (4) except for Food Pageant (supra), all decisions on the issue of Con Ed’s gross negligence in the blackout had been decided in its favor; (5) Con Ed was publicly blamed by New York City officials for the blackout, and one news article reported that the borough president of the Borough of Manhattan had commenced the first action against it, seeking $1,000,000,000 in damages; and (6) a number of “independent investigative reports” were prepared following the blackout, including one by a special consultant appointed by the Public Service Commission at the Governor’s request and another by a staff task force of the Department of Public Service. In reply, plaintiff pointed out that the decisions in Con Ed’s favor were made in the Small Claims Part of the Civil Court of the City of New York, that the contention that the jury in Food Pageant (supra) arrived at a compromise verdict was sheer speculation, and that Con Ed made no argument that it had newly discovered evidence that would impeach the verdict in Food Pageant (supra). Special Term granted plaintiff’s motion to the extent it sought to preclude relitigation of the issue of Con Ed’s gross negligence in causing the blackout, but held that — 613 — there were questions of fact, inter alla, as to whether Con Ed owed a duty of care to plaintiff. On appeal, Con Ed reiterates the arguments that there were inconsistent prior determinations and a compromise verdict in Food Pageant (supra), and raises several new arguments, namely: (1) that the issue of Con Ed’s gross negligence cannot be determined apart from plaintiff’s alleged negligence, therefore the issues in the case at bar are not identical to the issues in Food Pageant (supra), (2) that Con Ed’s incentive to fully litigate in Food Pageant (supra) was moderated by the size, absolute, and relative to outstanding aggregate claims, of the damages claimed in that case, (3) that “[t]he public at large, as rate-payers, will ultimately absorb the cost of any damage awards assessed against” defendant, and (4) that the official investigative reports which concluded that the blackout resulted from causes inconsistent with gross negligence on Con Ed’s part, had not been placed before the jury in the Food Pageant case. It is Con Ed’s position that these factors take this case out of the rule laid down by the Court of Appeals in Schwartz v Public Administrator of County of Bronx (24 NY2d 65, 71): “Although we have not previously said so, it is now evident that New York has adopted the full and fair opportunity test in applying the doctrine of collateral estoppel. (Zdanok v. Glidden Co., 327 F.2d 944, 956 [2d Cir., Friendly, J.], cert. den. 377 U.S. 934; Graves v. Associated Transp., 344 F.2d 894, 900 [4th Cir.]; Teitelbaum Furs v. Dominion Ins. Co., 58 Cal. 2d 601 [following through on Chief Justice (then Justice) Traynor’s seminal decision in Bernhard v. Bank of America, 19 Cal. 2d 807]; Ordway v. White, 14 A D 2d 498, 500-501 [Halpern, J., concurring], supra; see, also, Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan. L. Rev. 281; Currie, Civil Procedure: The Tempest Brews, 53 Calif. L. Rev. 25, 31; Polasky, Collateral Estoppel — Effects of Prior Litigation, 39 Iowa L. Rev. 217, 250.) New York law has now reached the point where there are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a — 614 — full and fair opportunity to contest the decision now said to be controlling.” Among the elements to be considered in determining if there has been a full and fair opportunity to contest the decision, i.e., “whether a party has had his day in court”, are “such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation” (Schwartz v Public Administrator of County of Bronx, supra, p 72). Con Ed argues not only that plaintiff has failed to meet the Schwartz test for identity of issue and for a full and fair opportunity to previously litigate the issue, but also that such preclusive effect would deprive it of its constitutional right to due process of the law because the adversarial system is inescapably flawed (citing Parklane Hosiery Co. v Shore, 439 US 322; Blonder-Tongue v University Foundation, 402 US 313). These arguments are without merit. As to the question of the identity of the gross negligence issue in both Food Pageant (supra) and the case at bar, it is obvious that Con Ed’s gross negligence was not causally interrelated with culpable conduct on the part of plaintiff in either of these cases. Therefore, the issue resolved in Food Pageant (supra) was a discrete one and, having been resolved against Con Ed in that case, the factual determination may be used against Con Ed in the case at bar if the second prong of the Schwartz test has been met. As to that “full and fair opportunity” prong of the test, Con Ed essentially makes two arguments: (1) that the Food Pageant determination is intrinsically suspect because of certain “indications of a compromise verdict” and (2) that that determination is extrinsically suspect because of the existence of inconsistent judgments and exculpatory investigation reports. As to the compromise verdict argument, Special Term properly characterized it as “mere speculation”. Apart from the obvious fact that the award of $40,500 in Food Pageant (supra) was exactly one half the amount of damages allegedly proved, Con Ed failed even to suggest a — 615 — reason for a jury’s discounting by half this total sum, nor attempted to rebut plaintiff’s point that the damages were roughly attributable half to inventory losses and half to the less easily ascertainable loss of business. More significantly, however, Con Ed did not raise this issue on its appeal from the judgment in Food Pageant (supra); its belated collateral attack is therefore unpersuasive. As to the extrinsically suspect nature of the Food Pageant decision, Con Ed argues, dehors the record, that exculpatory material in the “authoritative” reports (e.g., its inability to raise new capital for systems improvements) was ruled inadmissible during the Food Pageant trial. Again, of course, this alleged error was cognizable upon appeal and, not having been pressed on direct appeal from the judgment, is entirely unpersuasive in what would amount to collateral review here. Nor would the hearsay conclusion of these reports, no matter how “authoritative”, be competent as evidence, whether newly discovered or otherwise. The main thrust of Con Ed’s appeal, however, is the fundamental unfairness of being caught in the multiple claimant anomaly described in Parklane Hosiery Co. v Shore (439 US 322, 330, n 14, supra), in that its defeat for a mere $40,500 in Food Pageant (supra) has exposed it to the catastrophic liability of more than $200,000,000. Under the test in Schwartz (supra) the size of the claim is relevant to whether a party has had a full and fair opportunity to litigate. It obviously relates to the party’s incentive to litigate. Thus, in Berner v British Commonwealth Pacific Airlines (346 F2d 532, cert den 382 US 983), an unappealed $35,000 wrongful death judgment was held not to preclude defendant from litigating a subsequent $7,000,000 wrongful death action. The court reasoned that defendant had insufficient incentive to litigate (and appeal) the earlier judgment in light of the fact that, at the time, offensive use of collateral estoppel was not permitted, absent mutuality. Certainly the history of the litigation, including appeals, in the Food Pageant case belies any argument that the relatively small exposure there lulled Con Ed into a false sense of its importance for collateral — 616 — estoppel purposes in future litigation arising from the blackout. Con Ed’s attack, however, is based not only on application of the Schwartz criterion for a full and fair opportunity to litigate, but on its holding that “there are but two necessary requirements for the invocation of the doctrine of collateral estoppel”, namely, identity of issue and a full and fair opportunity to litigate (24 NY2d 65, 71; emphasis supplied). In effect, Con Ed complains that a fair trial is not sufficient if its outcome is inconsistent with the outcome of another fair trial. Con Ed relies on dictum of the United States Supreme . Court: “Allowing offensive collateral estoppel may * * * be unfair to a defendant if the judgment relied upon as a basis for the estoppel is itself inconsistent with one or more previous judgments in favor of the defendant” (Parklane Hosiery Co. v Shore, 439 US 322, 330, supra). Defendant points out that it is in the same position as the railroad in Professor Currie’s railroad collision example (Parklane Hosiery Co. v Shore, supra, p 330, n 14, citing Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan L Rev 281). In that familiar illustration of the multiple claimant anomaly, a single accident — a railroad collision — injures 50 persons, and the railroad is subjected to a series of actions, winning the first 25 but losing the 26th. Currie argued that it would be absurd to permit the remaining parties to preclude the railroad from relitigating its culpability established in the 26th case, which he characterized as an aberration in light of the results in the first 25. The difficulty with this position, of course, is that it would undermine the principle of finality in litigation to permit a litigant to escape the fact-finding process of a fair trial. As stated by the Supreme Court of Oregon in State Farm Fire & Cas. Co. v Century Home Components (275 Ore 97, 106-107): “There is no foundation in either experience or policy for accepting the suggestion that a decision rendered after a full and fair presentation of the evidence and issues should be considered either substantially suspect or infected with variables indicating the question might be decided differently in another go-round. Currie — 617 — subsequently conceded the untenability of his initial position and retreated from it, stating that '* * * so long as we retain sufficient faith in the institution of trial by jury to retain it for civil cases at all, what warrant is there for mistrusting the verdict for purposes of collateral estoppel when there is no suggestion that there has been compromise or other impropriety?’ Currie, Civil Procedure: The Tempest Brews, 53 Calif L Rev 25, 36 (1965).” As the Supreme Court of the United States put it when it breached the mutuality citadel in a case involving patents (Blonder-Tongue v University Foundation, 402 US 313, 328-329, supra): “The broader question is whether it is any longer tenable to afford a litigant more than one full and fair opportunity for judicial resolution of the same issue. The question in these terms includes as part of the calculus the effect on judicial administration, but it also encompasses the concern exemplified by Bentham’s reference to the gaming table in his attack on the principle of mutuality of estoppel. In any lawsuit where a defendant, because of the mutuality principle, is forced to present a complete defense on the merits to a claim which the plaintiff has fully litigated and lost in a prior action, there is an arguable misallocation of resources.” While conceding that the jury trial is less an engine for the scientific ascertainment of ultimate truth than a mechanism for finally resolving disputes between citizens, the Supreme Court of Oregon anticipated the United States Supreme Court’s concern in Parklane Hosiery Co. v Shore (supra), by remarking that “we are not free to disregard incongruous results when they are looking us in the eye” (State Farm Fire & Cas. Co. v Century Home Components, 275 Ore 97, 108, supra). The gist of its complaint is expressed in Comment g to section 29 of the Restatement of Judgments, Second: "[T]aking the prior determination at face value for purposes of the second action would extend the effects of imperfections in the adjudicative process beyond the limits of the first adjudication, within which they are accepted only because of the practical necessity of achieving finality” (emphasis supplied; see, also, Restatement, Judgments 2d, § 29, Comment f). Furthermore, according to Parklane Hosiery Co. v Shore (439 US 322, 329-330, supra), “offensive use of collateral — 618 — estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely ‘switching adversaries.’ * * * Thus defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment * * * Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action”. There are three replies to these arguments against offensive use of collateral estoppel in so-called multiple claimant anomalies such as the one presented for resolution here. In the first place, resurrection of the mutuality of estoppel rule in a multiple claimant situation where there have been inconsistent results cannot possibly restore public confidence in the integrity of the jury trial system. The possibility of inconsistent results is forever present: it is inherent in the adversarial system. Once the inconsistency appears, it cannot be made to disappear by permitting further litigation of the facts in dispute. The unanalyzed assumption in Currie’s railroad illustration is that the minority result (in which the defendant lost after a string of 25 victories) is the aberrational result — in short, it is (or may be perceived to be) the erroneous fact finding. This conclusion is neither logical nor wise. It is intuitively obvious that, of an infinite number of trials of the disputed issue, at least one would be at variance with the rest. A measure of confidence would attach to the conclusion that the minority of one was an erroneous fact finding. Assuming it were possible to take á statistically valid sample of these trials, a reasonable measure of confidence would attach to the conclusion that if the — 619 — deviant decisions represented a sufficiently small minority, such would demonstrate that the majority decisions represented the more accurate fact finding. Possibly an inconsequential degree of error would be introduced into this process if, as a cost-cutting measure, the initial trial was video taped and subsequent trials were limited to playing back the tape to different juries. Yet would anyone seriously suggest that the definition of a fair trial be expanded to incorporate such a process in order to improve its accuracy? Obviously, accuracy has its costs. In a very real sense, litigants are entitled to only that justice which society is prepared to pay for, and that justice is a single fair trial.1 In the second place, the practical consequences of the distinction between offensive and defensive use of collateral estoppel are more seeming than real. In Parklane Hosiery Co. v Shore (439 US 322, supra), the Supreme Court suggested that defensive use is fair and efficient because it encourages a plaintiff to join all defendants in a single trial lest he be estopped from litigating his claim against other defendants. In apparent contrast, said the court, offensive use creates a holdout situation: defendant is confronted with a war of attrition, fending off one challenger after another, until one perseveres and the remainder then invoke collateral estoppel in order to share in the victory without having incurred the costs of severally or jointly litigating the dispositive issue. There is, however, no inherent unfairness or inefficiency in permitting both offensive and defensive use of collateral estoppel. It must be remembered that in cases involving personal injury or wrongful death — in which the typical multiple-claimant anomaly arises — parties’ rights to their persons are never put in issue, but a property action — 620 — necessarily calls into question the parties’ rights to their property. Litigation, however, vindicates the rights of the parties only if they have been violated at some point in time. Obviously defensive use of collateral estoppel by an alleged tort-feasor, trespasser or infringer against the injured plaintiff is efficient because it precludes the plaintiff from commencing further actions against different defendants after losing the dispositive issue against one defendant. Contrary to the Parklane Hosiery Co. v Shore (supra) dictum, however, this efficiency cannot encourage plaintiff in a property action to join all potential challengers to his property right in one action for the simple reason that they cannot be made defendants until they have violated his purported right. Thus, by its very nature, the institution of property compels a property owner to stand eternally vigilant against all the world: to do nothing in response to acts of trespass or infringement risks loss of his property by prescription; to litigate against violators risks an adverse decision forever terminating his claim as against all the world. Can it be said that there is some fundamental unfairness in using collateral estoppel against a defendant accused of committing a wrong against many parties in a single event at one point in time — such as in the case at bar — in a society that will collaterally estop a plaintiff from defending his title or patent from trespass or infringement occurring from time to time? Is there a rational difference between being put to the test in action after action because of repeated trespasses against one’s property and being put to the test in action after action because of the multitude of persons injured by one’s gross negligence on one occasion? In the third place, the argument that offensive use of collateral estoppel creates a holdout situation overstates the incentive among plaintiffs to wait and see the result of litigation commenced by the first plaintiffs to act. Militating against this incentive is the expense of commencing and prosecuting separate actions and the substantial discouragement created by defendant’s initial victories among would-be plaintiffs. This, of course, is particularly significant in the case under review. The issue of gross negligence in the electric power blackout is a highly technical question. Furthermore, as a matter of strategy, Con — 621 — Ed was probably well advised to avoid a joint trial of all 550 or so actions commenced against it from among its more than 3,000,000 black-out households. Doubtlessly a significant fraction of the more than $200,000,000 in claims, though large when aggregated, comprised actions that would be litigated in the Small Claims Courts and therefore could not form the basis for collateral estoppel.2 Finally, Con Ed fails to suggest a meaningful set of criteria that would clearly distinguish those multiple claimant situations in which offensive use of collateral estoppel has been authorized (see, e.g., Kowalski v Mohsenin, 38 AD2d 274; Randolph v Nurse, 49 AD2d 354) from those in which it should not be permitted. It may very well be that the Public Service Commission, which regulates the defendant utility as a gas and electric corporation organized under the Transportation Corporations Law, may authorize Con Ed to increase its rates in an attempt to pass on the costs of any judgments to its customers, rather than to charge its shareholders. Nevertheless, there is no reason for this court to resurrect the mutuality requirement in order to preclude use of collateral estoppel against Con Ed in order to protect the rate payers or shareholders from the consequences of Con Ed’s gross rather than ordinary negligence. It is also of some significance that Con Ed nowhere suggests that it attempted to join all pending claims against it for purposes of trial, as was done in the multiple claimant situations in Appel v Braverman (NYLJ, Sept. 14, 1970, p 21, col 8), Sheeran v Sheeran (NYLJ, Feb. 5, 1973, p 20, col 5), and Ames v Condon (NYLJ, Aug. 1, 1969, p 10, col 4). The unresolved problem, of course, is joinder not only of pending actions but also of those actions expected from possible plaintiffs who would otherwise wait and see the results of initial litigation before commencing their own actions. Only a plaintiff can request that an action be — 622 — prosecuted as a class action under CPLR 902. Under CPLR 602 the Supreme Court is empowered to direct joint trials only of pending actions involving a common question of law or fact. There is no express authorization in any of the practice acts for any court of this State to stay pending actions, compel commencement of all related actions, and direct their joint trial. Nevertheless, as stated in subdivision 3 of section 2-b of the Judiciary Law, a court of record has power “to devise and make new process and forms of proceedings, necessary to carry into effect the powers and jurisdiction possessed by it”. Pursuant to its equity powers, a court may entertain a plenary action to enjoin all pending and prospective claimants from proceeding to trial and to direct a joint trial of such claims under a liberal interpretation of the process known as a bill of peace (see, e.g., Board of Supervisors v Deyoe, 77 NY 219; cf. Dresdner v Goldman Sachs Trading Corp., 240 App Div 242; see, also, Indestructible Metal Prods. Co. v Summergrade, 197 App Div 199). For these reasons, and those stated in the majority opinion in Goldstein v Consolidated Edison Co. (93 AD2d 589, supra), I conclude that Special Term properly precluded Con Ed from relitigating the issue of its gross negligence in the 1977 blackout. Accordingly, Special Term’s resettled order should be affirmed insofar as appealed from. Footnotes [1] This trade off between accuracy and societal cost is hardly a novel idea. In recognition of the frailty of human endeavors to ascertain truth, it has long been accepted that error can never be wholly banished from any fact-finding process, and that adjustments to the process must eventually give way to modifications that tolerate some types of error in order to reduce less desirable types of error. The most obvious example of this is the centuries-old, and recently revived, debate over the appropriate ratio of wrongful acquittals to wrongful convictions in criminal cases. Fortescue recommended 20 to 1; Hale recommended 5 to 1, and Blackstone 10 to 1. (See Nagel and Neef, Decision Theory and the Legal Process, pp 13, 195, 207-208; Tribe, Trial by Mathematics: Precision and Ritual in the Legal Process, 84 Harv L Rev 1329, 1376, 1381-1382, 1391; Kaplan, Decision Theory and the Factfinding Process, 20 Stan L Rev 1065, 1072.) [2] CCA 1808, which is typical of the various small claims provisions in the local court acts, proscribes use of small claims judgments for collateral estoppel purposes: “A judgment obtained under this article may be pleaded as res judicata only as to the amount involved in the particular action and shall not otherwise be deemed an adjudication of any fact at issue or found therein in any other action or court.” The apparent necessity of this provision arises from the informal nature of the small claims trial procedure (CCA 1804).