utility-linesAlong with the multitude of recent events involving natural disaster throughout the nation, comes the plethora of angry utility customers displaced by power outages occurring in such disasters as those in Hurricanes Katrina and Irene, and more recently Hurricane Sandy. However, the consumer anger caused by such displacement, may be rightfully asserted, says the attorneys that represent these individuals in negligence actions against utility providers, who are concerned over breaches of duty in preparation and communication.

In a 2012 publication entitled, Prior Preparation, Good Communication Key to Recovering Costs after Storms, authors Calvin E. Stewart Jr. and Miki Deri comment on this dilemma:

“Storm restoration cost recovery efforts vary widely depending on a variety of factors, both inside and outside a utility’s immediate control. Despite the variables, utilities that have the most successful restoration cost recovery efforts are those that prepare comprehensive emergency planning programs, respond effectively, and communicate with all stakeholders in a proactive, timely, and useful manner. Simply put, the more prepared you are for a broad-based outage both operationally and through public communication, the more successful you will be at recovering costs.”

Utilities lawsuits involving negligence necessarily involve a two-part analysis when considering issues of duty and breach. The first part of the analysis requires examination of the duties owed by utility providers prior to the occurrence of events causing loss in power such as natural disasters. The second part of the analysis requires evaluation of the manner and duration of response time in addressing utility problems, as well as how such information was provided, and therefore communicated, to the consumer. Either analysis presents issues concerning causation when dealing with matters such as hurricanes, due to the intervening source of damages related to power outages having ascended from naturally occurring events. Consequently providing sufficient proof in a utilities lawsuit, especially those involving natural disasters, often demand presentation of evidence from utility industry expert witnesses, such as power line experts or civil engineer experts.

As commented by Stewart and Deri’s in the above referenced article, “according to a new report by the Intergovernmental Panel on Climate Change, climate changes are affecting weather patterns—altering the frequency, intensity, duration, and timing of extreme weather events.” When such unpredictable weather patterns are viewed in conjunction with pending litigation regarding recent natural disasters such as the current utility actions pending as a result of hurricane Sandy, the outcomes in such matters could perhaps result in landmark decisions that would undoubtedly have a profound effect on similarly litigated matters in the future. As stated by attorney Ken Mollins, who represents utility victims of Hurricane Sandy in a class action suit against Long Island Power Authority (LIPA), “This has the potential to be the biggest class-action lawsuit ever with possibly 1 million individuals joining.”  Mollins’ statement might be further legitimated in light of the resignation of Mike Hervey, the chief operating officer of LIPA, following criticism over the actions, or lack thereof, taken by LIPA both before and after the onset of Hurricane Sandy.

Accordingly, much can be learned from recent natural disasters, and their resulting litigation, namely the old adage, ‘Preparation, Preparation, Preparation.’ It can be said that utility providers have been put on notice, that their negligence cannot be guised nor negotiated through the placement of blame on naturally occurring events. Attorneys involved in the litigation surrounding these matters are hopeful that the useful insight provided by utility industry experts may resolve much of the controversy over these issues, thereby working toward the ultimate goal of preparation for future storms to come.

By: Alicia McKnight, J.D.