Trip and Fall During a Power Outage

I tripped and fell while walking in a strip mall parking lot. This trip and fall during a power outage occurred at night, with the electric power out for several blocks around and including the mall. I did not see a concrete block in front of a parking spot and fell. Do I have any claim for my injuries?

You probably do not have a claim for this accident.

There are two possible defendants for your injury claim. One possible claim would be against the mall owner. The other possible claim would be against the utility company, Con Edison.

Admittedly, the concrete block in front of a parking space is an open and obvious condition. You, as the pedestrian, have a duty to see what there is to be seen. Of course the reason you did not see the open and obvious condition was due to the power outage. However, cell phones are nearly ubiquitous. If you had one, you could have used the flashlight function on the cell phone to illuminate the area where you were walking.

Also, the mall owner had no duty to illuminate the parking lot during a blackout. See Kopsachilis v 130 East 18 Owners Corp., 11 NY3d 512 (2008) and Viera v Riverbay Corp., 44 AD3d 577 (1st Dept. 2007). Therefore, since the mall owner had no duty to illuminate the parking lot during a power outage, you would not have a claim against the mall owner.

The second possible claim could be against Con Edison for failure to provide electric service. However, Con Edison owed no duty to you as a pedestrian in a parking lot. The power company only owes a duty to its customer for the interruption of service. You are not the customer. Only the mall owner only has a claim for interruption of service if it can prove willful misconduct or gross negligence against Con Edison. Food Pageant, Inc. v Consolidated Edison Co., Inc., 54 NY2d 167, 445 NYS2d 60 (1981).

Furthermore, as a matter of public policy, Con Edison is not liable for injuries sustained during a power outage. So even if the mall owner had a duty during a blackout to illuminate the parking lot, there can be no contribution to those damages from Con Edison. Crane v New York, 65 NY2d 859, 493 NYS2d 292 (1985). See also Goldstein v Consolidated Edison Co. of New York, Inc., 115 AD2d 34, 499 NYS2d 47 (1st Dept 1986).

Thus, you would not have a claim for your injuries.

By James Santner, Esq.

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