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Electricity-Supplier (Con Edison) Did Not Owe a Duty of Care to a Shareholder in an Apartment Cooperative Who Fell in a Common Area During a Power Outage/Plaintiff’s Lack of Knowledge of the Cause of His Fall Was Fatal to the Lawsuit

The Second Department determined the electricity-supplier, Con Edison, did not owe a duty of care to plaintiff, a shareholder in an apartment cooperative, who fell in a common area of the building during a power outage. In addition, the plaintiff’s lack of knowledge re: the cause of his fall was fatal to the lawsuit:

The Court of Appeals has held that an electricity-supplying utility “is not answerable to the tenant of an apartment building injured in a common area as a result of [the utility’s] negligent failure to provide electric service as required by its agreement with the building owner” (Strauss v Belle Realty Co., 65 NY2d 399, 405; see Milliken & Co. v Consolidated Edison Co. of N.Y., 84 NY2d 469). Contrary to the plaintiffs’ contention, the injured plaintiff’s status as a shareholder in the cooperative corporation that owned the building did not make him a party to the contract with Con Edison, such that Con Edison owed him a duty of care… . * * *

“[A] plaintiff’s inability to identify the cause of the fall is fatal to the cause of action, because a finding that the defendant’s negligence, if any, proximately caused the plaintiff’s injuries would be based on speculation” … . Here, the injured plaintiff testified at his deposition that he did not know why he fell, did not know whether he tripped or slipped, and had no memory of the fall. When he was asked if he knew why he fell, the injured plaintiff testified: “That’s speculation. I don’t know.” In addition, the building defendants submitted the deposition testimony of two witnesses who stated that the injured plaintiff appeared to be intoxicated at the time of the accident. Thus, the building defendants demonstrated that it was just as likely that the accident was caused by some factor other than poor lighting conditions in the stairwell, such as a misstep, a loss of balance, or intoxication, and thus “any determination by the trier of fact as to causation would be based upon sheer conjecture” … . O’Connor v Metro Mgt. Dev., Inc., 2015 NY Slip Op 05921, 2nd Dept 7-8-15

 

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