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.