Co-authored by: Brianna Robert & Niki Abossedgh
In April 2023, Judge Barbara Jongbloed of the Connecticut Superior Court for the Judicial District of New Haven denied summary judgment to a public utility provider after Biller, Sachs & Robert successfully argued that electricity was a product under the Connecticut Product Liability Act in Clemmons v. Connecticut Light and Power Co.
Judge Jongbloed also agreed with Biller, Sachs & Robert that the electricity supplied to the plaintiffs’ home was defective and was provided in an unreasonably dangerous condition.[1]This ruling followed an electrical fire that caused significant damage to the insured’s residence on March 7, 2018.
After a winter storm caused local power lines to fall, the plaintiff homeowners, Mr. and Mrs. Clemmons, contacted Eversource and immediately advised the company that they had lost their power. The Clemmons’ were unaware at the time that, not only were there widespread power outages, but a very large tree had fallen and caused electrical wires on their property to also come down. When they learned this, they called Eversource back to try to alert the company. Unfortunately, Eversource had changed their telephone prompts in order to decrease their call volume. Specifically, the prompts that were available in the evening, which directed callers to push a specific number if they had wires down, were no longer available the next morning.
Left with no ability to notify Eversource that there was a tree down on the wires on their property, the Clemmons’ notified the Madison police, who reported to the home and confirmed that the wire on their property was in fact dead.
Moments after the police had left, and without notifying the insured, Eversource restored power to the property, igniting a devastating fire that erupted from that wire. As a result, the fire destroyed the home.
Attorneys Jon Biller and Brianna Robert represented the homeowners in the lawsuit against Eversource. Biller, Sachs & Robert filed a Motion for Summary Judgment in the case claiming electricity was a product under the Connecticut Product Liability Act.
When a utility company has notice of a potentially dangerous condition, and then allows that condition to damage an insured’s property, there are a number of legal theories that may be available to the insured. At issue in Clemmons v. Connecticut Light and Power Co., was the question of when electricity becomes a product as opposed to a service, and if determined to be a product, whether the electricity supplied to the insured’s home was in an unreasonably dangerous condition.
In this case, the utility company attempted to argue, in a cross motion for summary judgment, that electricity was not considered a “product,” but a “service,” within the meaning of the Connecticut Product Liability Act (“CPLA”) and that Public Utilities Regulatory Act (“PURA”) precluded application of the CPLA. It also alternatively argued that the homeowners failed to establish that the electricity provided was in a defective condition unreasonably dangerous to them as consumers.
The Court rejected Eversource’s arguments and determined it was appropriate to apply the doctrine of strict liability to a products liability action involving electricity supplied to a home. Biller, Sachs & Robert provided prior case law to the court, including the Connecticut Superior Court case of Travelers Indem. Co. of Am. v. Connecticut Light & Power Co., to point out that “a majority of courts have held that electricity becomes a product when it passes through the customer’s meter and enters the customer’s premises.”[2] The court agreed and also held that “the weight of authority supports the determination that electricity is a product for purposes of the CPLA.”[3]
The court further rejected Eversource’s argument that PURA precluded liability under the CPLA. Eversource argued that its role in transmitting and delivering electricity is heavily regulated by PURA, classifying it as a “service” provider under these regulations. Eversource claimed PURA’s rules prevent imposing strict liability on public utilities.[4]
The court found the analysis from a prior case cited by Biller, Sachs & Robert involving Eversource, O’Neil v. Connecticut Light & Power Co., persuasive as well. In O’Neil, the court held PURA does not limit liability for negligence or misconduct.[5] The court in O’Neil stated that “there is no precedent cited by Connecticut Light and Power in Connecticut which recognizes the authority of PURA to approve tariffs which include a limitation on the liability of a public utility for even simple negligence, yet alone wanton and willful misconduct….”[6] Therefore, the court concluded that PURA’s regulations do not prevent the application of the CPLA. [7]
The court also found Attorneys Biller and Robert submitted sufficient evidence to establish that the electricity had been sold in a defective condition that was unreasonably dangerous to the consumer for purposes of establishing a CPLA claim. The court stated that whether the electricity was in a defective condition unreasonably dangerous to the consumer or user was a question of fact, which meant the Clemmons’ would be able to pursue their strict liability claim against Eversource in court.[8]
This case represents a significant victory by Biller, Sachs & Robert for consumers, as product liability claims provide important remedies to Connecticut residents who have been injured as a result of companies, including public utility companies, selling defective products.
[1] Clemmons v. Connecticut Light & Power Co., No. NNHCV-19-6109350-S, 2023 WL 2986797, at *1 (Conn. Super. Ct. Apr. 14, 2023).
[2] Id. at *5, citing Travelers Indem. Co. of Am. v. Connecticut Light & Power Co., No. CV075012441S, 2008 WL 2447351 (Conn. Super. Ct. June 4, 2008) (citing Restatement (Third) of Torts § 19)
[3] Clemmons, 2023 WL 2986797, at *5.
[4] Clemmons, 2023 WL 2986797, at *6; Regs. Conn. State Agencies §16-11-102(a): “[e]very utility shall use every effort to properly warn and protect the public from danger and shall exercise all possible care to reduce the hazard to which employees, customers and others may be subjected by reason of its equipment and facilities.”
[5] O’Neill v. Connecticut Light & Power Co., No. HHDCV186089044S, 2020 WL 1889124, at *11 (Conn. Super. Ct. Feb. 21, 2020).
[6] Id.
[7] Clemmons, 2023 WL 2986797, at *6.
[8] Id. at *3