Consumer Attorney - Hurricane Irene Power Outage

Image from Nasa.gov, captured by the
GOES-13 satellite at 8:32 a.m. EDT
(Credit: NASA/NOAA GOES Project)

--- Click here for information regarding Hurricane Sandy

--- Click here for the Public Service Commission general claim form.

Multiple people have asked me about the idea of a lawsuit or class action against LIPA based upon their response to the Hurricane Irene power outage.  A significant swath of the North Shore of Long Island has been without power for days, with minimal information as to when we can expect power restored.  While some areas are being restored, reports suggest that in many locations the power outages caused by Hurricane Irene may remain out for the rest of the week, if not until next week.

Hopefully, LIPA is doing everything it can to get the power restored as quickly as possible and, when all the details are finally known, the utility will be lauded for its exceptional work.  Ideally, New York will be able to provide the rest of the country with an example of how to prepare for and respond to a natural disaster.  

Nonetheless, it is always good for people to know and preserve their rights. I have some experience with this area of law, having handled the initial filing of a number of cases related to the Queens blackout in 2006.  (See Wikipedia; NY Times).

As a utility, LIPA operates under a Tariff with the State, which is basically the equivalent of its contract with its customers.  Under LIPA's Tariff, "the Authority shall try, at all times, to provide regular and uninterrupted service," but it is not liable for "interruption of service to make permanent or temporary repairs." It is, however, liable for up to $150 in food spoilage if it "by mistake, does not restore service within twelve (12) hours to a Customer whose service it has disconnected intentionally" and the customer makes a claim within ninety days.  LIPA Tarriff, Section I(C)(1)(a, f). 

At common law, a utility is not responsible for losses caused by service outages except where there has been "gross negligence."  Strauss v. Belle Realty Co., 65 N.Y.2d 399 (1985).  The reason why utilities are only responsible for "gross" negligence, rather than ordinary negligence, is because, as public service providers, the courts decided “to limit the legal consequences of wrongs to a controllable degree and to protect against crushing exposure to liability” as a matter of public policy. Id.

Right now, we have no idea whether LIPA was negligent at all, let alone grossly negligent.  What we do know is that there were numerous trees down, and undoubtedly a tremendous amount of work to be done to restore power in certain areas.  

Anyone desiring to claim losses should preserve their rights by filing a PSC Complaint within ninety days.  With such a large event, it would be appropriate for the Public Service Commission to conduct a review, and odds are they will.  Although the Tariff does not explicitly cover this situation, the most comparable scenario, where LIPA mistakenly fails to restore power that it intentionally cut off, requires a complaint to be filed within ninety (90) days.   In the event LIPA is culpable for failing to timely restore power, causing food spoilage (save your receipts), or there are power spikes causing equipment damage (which would be much harder to prove), the PSC process may provide some recovery for your uninsured losses, albeit likely not 100%.   The PSC's general complaint form is here, or you can send a letter to: 3 Empire State Plaza, Albany, New York 12223. 

First Amendment Civil Rights

The First Amendment, made applicable to State action through the Fourteenth Amendment, states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Among other things, including protecting public dissemination of information and opinions from unreasonable government interference, "the First Amendment protects a public employee's right, in certain circumstances, to speak as a citizen addressing matters of public concern." Garcetti v. Ceballos, 547 U.S. 410, 126 S. Ct. 1951 (2006).  "A plaintiff making a First Amendment retaliation claim under § 1983 [the statute permitting a private right of action for constitutional torts] must initially demonstrate by a preponderance of the evidence that: (1) his speech was constitutionally protected, (2) he suffered an adverse employment decision, and (3) a causal connection exists between his speech and the adverse employment determination against him, so that it can be said that his speech was a motivating factor in the determination. If a plaintiff establishes these three factors, the defendant has the opportunity to show by a preponderance of the evidence that it would have taken the same adverse employment action even in the absence of the protected conduct." Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999).

In a First Amendment Retaliation claim, “the causal connection must be sufficient to support the inference e that the speech played a substantial part in the employer's adverse employment action." Diesel v. Town of Lewisboro, 232 F.3d 92, 107 (2d Cir.  2000) quoting Ezekwo v. NYC Health & Hospitals Corp., 940 F.2d 775, 780-81 (2d Cir. 1991).  Such causation may be established through a "showing that the protected activity was closely followed in time by the adverse action." Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996).

The damages that may be awarded in a First Amendment retaliation case include injunctive relief, compensation for economic loss (i.e., lost wages), attorneys fees, and emotional distress.  

Emotional distress awards within the Second Circuit can generally be grouped into three categories of claims: garden-variety, significant and egregious.” Olsen v. County of Nassau, 615 F. Supp. 2d 35, 46 (E.D.N.Y. 2009).  The amount of damages in any particular case is a highly fact-sensitive inquiry, and the amount awarded is subject to judicial review.  See e.g. Thorsen v. County of Nassau, 722 F. Supp. 2d 277, 292 (E.D.N.Y. 2010)(reducing $1.5 Million Award to $500,000 for a ‘serious’ emotional distress claim in the context of retaliation for supporting the losing political camp in an election); Phillips v. Bowen, 278 F.3d 103, 106 (2d Cir. 2002)($400,000 emotional distress award for First Amendment Retaliation based upon supporting an opposing candidate for Sherriff where “defendants' animosity permeated plaintiff's work environment).  See also Long Island Legal News, "Jury Awards 350K in First Amendment Civil Rights Lawsuit.") 

Constitutional Civil Rights Litigation

I find Constitutional cases extremely interesting.  In addition to providing an avenue of redress for people who have had their civil rights violated, these types of cases also deal with larger policy issues.    The Judicial branch is an important component of our system of checks and balances, but it only works by deciding upon the cases and controversies that are presented by litigants.  Thus, this is an area of law where, through litigating over harms that have been caused to specific individuals, the courts define the rights of broad classes within our society.  The same can be said for any type of litigation, but in constitutional litigation the larger issues are more easily apparent.


The main articles of the Constitution deal mostly with the structure and administration of the Federal government as an entity.  The Bill of Rights, however, is directed at the rights of individuals, and sets boundaries against governmental overreaching and intrusion.  Initially, the Bill of Rights was only applicable to the Federal government, not the individual states (and thus not state and local entities, like police departments). The Fourteenth Amendment, however, made these rights applicable to state actors as well.  Additionally, each individual state has its own constitution, which may provide broader protections than the Federal constitution.

THE FIRST AMENDMENT - Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

THE SECOND AMENDMENT - A well-regulated militia, being necessary to the security of a free State, the right of the people to keep and bear arms, shall not be infringed.

THE THIRD AMENDMENT - No soldier shall, in time of peace be quartered in any house, without the consent of the owner, nor in time of war, but in a manner to be prescribed by law.

THE FOURTH AMENDMENT - The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

THE FIFTH AMENDMENT - No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.

THE SIXTH AMENDMENT - In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

THE SEVENTH AMENDMENT - In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.

THE EIGHTH AMENDMENT  - Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

THE NINTH AMENDMENT - The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

THE TENTH AMENDMENT - The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

THE FOURTEENTH AMENDMENT (SECTION 1) - All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.


--------------------------


Useful Links: 

• National Archives
• Library of Congress
• Wikipedia

New Job

Announcing (after 6 months) my new job.  (Read more).