Shaid v. Consolidated Edison Co. of New York, Inc.

Thompson, J.

(dissenting). On July 13, 1977, Consolidated Edison Company of New York, Inc.’s (hereinafter Con Ed) electric power system failed, leaving approximately 3,000,000 households in New York City and Westchester County in the dark. As a consequence of the blackout, more than 550 actions seeking in excess of $200,000,000 were instituted. In the case of Food Pageant v Consolidated Edison Co. (54 NY2d 167), an action initiated by a grocery store chain to recover for food spoilage and lost business, the jury returned a verdict on May 9, 1979 in favor of the plaintiff in the amount of $40,500 upon a finding that Con Ed’s gross negligence¹ had caused the power failure. The judgment entered upon the verdict was affirmed by the Appellate Division, First Department (78 AD2d 1016), and on November 19, 1981 the Court of Appeals concluded that the record on appeal adequately supported the jury’s finding of gross negligence (54 NY2d 167, supra). The issue presented by the instant appeal concerns the collateral estoppel effect of the Food Pageant decision upon a separate pending action arising out of the blackout.

I

Plaintiff Sadie Shaid initiated the instant action on December 7, 1977 to recover for the personal injuries she suffered as a result of Con Ed’s alleged gross negligence. She claimed that when the blackout occurred she became startled and disoriented, and this caused her to fall down a stairway at her residence and suffer severe injuries. By notice of motion dated January 20, 1982, Shaid moved for summary judgment on the issue of Con Ed’s liability, and included a request that at a minimum Con Ed be collaterally estopped from contesting the issue of its gross negligence as the proximate cause of the power failure. Shaid’s attorney argued in support of the motion that the Food Pageant decision should prevent Con Ed from being afforded an opportunity to relitigate the issue of its gross negligence, and applying collateral estoppel in this situation would assist in diminishing the tremendous litigation backlog that exists by providing an efficient and consistent resolution of what would be a recurring issue. He further argued that Con Ed had a full and fair opportunity to contest the issue of its gross negligence in Food Pageant (supra), and to introduce into evidence any relevant information in its possession as to the cause of the blackout. He contended that under the classic standard for invoking the doctrine of collateral estoppel set forth in Schwartz v Public Administrator of County of Bronx (24 NY2d 65) Con Ed should be estopped from contesting the issue of its gross negligence.

In opposition to the motion, Con Ed posited several arguments. It noted that prior actions instituted against it had resulted in determinations that it had not been grossly negligent with regard to the power failure. In addition, it contended that the Food Pageant decision resulted from a compromise verdict. Furthermore, it asserted that comprehensive independent investigative reports² prepared in connection with the reasons for the blackout contained exculpatory material absolving Con Ed of gross negligence. In light of the foregoing, Con Ed claimed that it would be inequitable to deny it its day in court on Shaid’s claim with respect to the question of gross negligence.

Special Term determined that Con Ed should be collaterally estopped from relitigating the issue of its gross negligence. The claim that the Food Pageant decision resulted from a compromise verdict was, according to Special Term, “mere speculation”. Special Term held that the prior decisions resulting in verdicts in Con Ed’s favor were of little consequence because the actions “appear to have been brought, for the most part, in small claims courts and to have been determined with little or no actual litigation of the issue of gross negligence”. Furthermore, Special Term concluded that “there is no reason to doubt the quality, extensiveness or fairness of the procedures followed in Food Pageant or defendant’s full participation and opportunity to be heard therein”. Special Term denied plaintiff summary judgment on the issue of liability because of unresolved factual issues concerning plaintiff’s contributory negligence and whether the blackout was the proximate cause of the injury. Partial summary judgment was granted pursuant to CPLR 3212 (subd [e]), precluding Con Ed from relitigating the question of its gross negligence as the cause of the blackout.³ Con Ed has appealed from so much of a resettled order of the Supreme Court, Queens County, dated September 13, 1982, as granted partial summary judgment on the issue in question. For the reasons set forth herein I believe the resettled order should be reversed insofar as appealed from and plaintiff’s motion for summary judgment should be denied in its entirety.

II

In Schwartz v Public Administrator of County of Bronx (supra, p 71), the Court of Appeals proclaimed: “[T]here are but two necessary requirements for the invocation of the doctrine of collateral estoppel. There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and, second, there must have been a full and fair opportunity to contest the decision now said to be controlling”. The court further noted (p 74) that the value of the application of the collateral estoppel doctrine was that it serves to “reduce the number of inconsistent results which are always a blemish on a judicial system * * * [I]n this day of great delays in accident litigation, a single trial of all claims growing out of the same accident will constitute a great savings of judicial manpower and time, without any true unfairness to the parties”.

It must be recognized, however, that the advantages of judicial economy, uniformity, and certainty provided by application of the doctrine of collateral estoppel are not to be pursued without regard for the overriding concern of achieving fairness in each individual case. It is for this reason that the doctrine is not rigidly or mechanically applied (Schwartz v Public Administrator of County of Bronx, supra, p 73). “Because the doctrine is based on general notions of fairness there are few immutable rules” (Gilberg v Barbieri, 53 NY2d 285, 291). Rather, broad discretion exists in the application of the doctrine (see Parklane Hosiery Co. v Shore, 439 US 322). “Collateral estoppel involves a policy judgment balancing the interests of an individual litigant against the interests of the administration of justice” (State Farm Fire & Cas. Co. v Century Home Components, 275 Ore 97, 105).

Ill

Con Ed argues that the first prong of the Schwartz test was not satisfied because the issue of gross negligence with regard to the blackout in the instant case is not identical with the question of gross negligence necessarily decided in Food Pageant (supra). New York utilizes the comparative negligence rule (CPLR 1411) and each determination of negligence must focus upon the questions of causation, duty, and comparative fault presented by the facts of each individual case. Thus, the finding of negligence in Food Pageant (supra) was made within the context of a very specific situation involving the causation, the duty owed, and the comparative fault of the parties. This is simply not identical with the same factors as they relate to the Con Ed-Shaid relationship, and so in the absence of the identical issue necessarily decided by the first action, Con Ed argues that collateral estoppel is inapplicable.

In support of its argument, Con Ed places great reliance upon Shanley v Callanan Inds. (54 NY2d 52). In that case Shanley and James were involved in a head-on automobile collision. A jury found Shanley to be 100% at fault. Shanley, in a second action, claimed that Callanan Industries, which was not a party in the first action, caused the accident. In rejecting Callanan Industries’ claim that Shanley was collaterally estopped from denying that he caused the accident, the court stated (p 56): “Nor can we say * * * that the jury verdict in the first action necessarily precludes a different determination of negligence in a second litigation between different parties based upon a different claim of negligence even though both cases arose as a result of the same accident”.

I reject Con Ed’s claim with regard to identity of issue as completely devoid of merit. Taken to its logical conclusion, Con Ed’s argument would mean that any constituent element of a finding of negligence in a comparative negligence situation could never be given collateral estoppel effect where a second action is commenced by a stranger to the first action. Such a conclusion is not supported by reason or case law. The issue of Con Ed’s gross negligence as the cause of the blackout is identical in both Food Pageant and the instant case, and this issue was squarely addressed and specifically decided in Food Pageant (see, generally, O’Connor v G&R Packing Co., 53 NY2d 278, 280). Any existing contributory negligence in Food Pageant (supra) or by Shaid could not in any way have caused the blackout, but would involve only the question of the proximate cause of the injuries of the respective plaintiffs. Con Ed is free to claim and prove that Shaid’s own negligence caused her to fall, but there is no rule of law which prevents application of governing collateral estoppel principles in all comparative negligence situations. The Court of Appeals recognized the continuing viability of collateral estoppel in comparative negligence cases when it stated in Shanley v Callanan Inds. (supra, p 57): “[I]t is now the rule that a determination between two parties on the issue of negligence no longer necessarily bars recovery against a stranger to the first action unless the issue was litigated on the merits in the prior trial” (emphasis supplied). In Shanley (supra), the second action involved a completely separate theory of causation, never litigated in the first action in anticipation of it being litigated in the second action, and so it is thoroughly distinguishable on its facts from the instant case.

IV

The second prong of the Schwartz standard for applying collateral estoppel requires that the party against whom collateral estoppel is to be applied have a full and fair opportunity to contest the decision now said to be controlling. The Court of Appeals in Schwartz went on to more fully define “full and fair opportunity” as follows (24 NY2d 65, 72, supra): “A decision whether or not the plaintiff drivers had a full and fair opportunity to establish their nonnegligence in the prior action requires an exploration of the various elements which make up the realities of litigation. A comprehensive list of the various factors which should enter into a determination whether a party has had his day in court would include such considerations as the size of the claim, the forum of the prior litigation, the use of initiative, the extent of the litigation, the competence and experience of counsel, the availability of new evidence, indications of a compromise verdict, differences in the applicable law and foreseeability of future litigation”. An additional highly relevant factor which must be explored is whether “[t]he determination relied on as preclusive was itself inconsistent with another determination of the same issue” (Restatement, Judgments 2d, § 29, subd [4]; Parklane Hosiery Co. v Shore, supra, p 330; Zdanok v Glidden Co., 327 F2d 944, 955, cert den 377 US 934; State Farm Fire & Cas. Co. v Century Home Components, 275 Ore 97, supra). The party asserting the lack of a full and fair opportunity to contest an issue carries the burden of establishing this claim (Schwartz v Public Administrator of County of Bronx, supra, p 73).

A.

Within the foregoing context, several of the factors to be weighed may be quickly disposed of. There is no assertion that the forum of the Food Pageant decision is a concern in this case, or that differences in applicable law have any relevance to the instant claim. It is also clear that Con Ed was represented by competent and experienced counsel in Food Pageant (supra).

B.

Three somewhat related factors involve the extent of the initial litigation now claimed to be preclusive, the size of the claim in the first action, and the foreseeability of future litigation. In a situation where a defendant in the first action is sued for a nominal amount or fails to perceive the potential for future litigation and so assigns little significance to the outcome of the first action, courts may refuse to grant collateral estoppel effect against the same defendant in a subsequent action (Parklane Hosiery Co. v Shore, supra, p 330; Gilberg v Barbieri, supra, pp 293-294). Similarly, there is a hesitancy to afford collateral estoppel effect to the first action where the amount at issue is dramatically less than that at stake in the subsequent action (see Restatement, Judgments 2d, § 28, subd [5], par [c]; Comment j; Berner v British Commonwealth Pacific Airlines, 346 F2d 532, cert den 382 US 983). The underlying assumption is that it is fair to preclude a defendant from relitigating the same issue only when that defendant defended the first action with complete vigor and a full appreciation of the consequences of losing the action.

There is nothing in the record to cast doubt upon a conclusion that Con Ed defended the Food Pageant action to the best of its ability and with an appreciation of the close scrutiny of the case by the numerous other plaintiffs with pending actions generated by the blackout. Thus, in this instance, these factors seem to militate against Con Ed’s position. Despite this, there is an unsettling aspect to the foregoing. Under Schwartz (supra) we must be cognizant of the realities of litigation. One of the realities is the spiraling and potentially prohibitive costs of defending a lawsuit. Food Pageant (supra) involved a $75,000 ad damnum claim and proof allegedly establishing $81,000 of damages. Con Ed vigorously contested plaintiff’s claim in Food Pageant (supra) all the way through the Court of Appeals. It is not inconceivable that legal costs incurred by Con Ed approached or exceeded the amount of plaintiff’s claim. It may be argued that Con Ed incurred such costs because it appreciated the profound impact Food Pageant (supra) could have on the pending claims involving many millions of dollars, but this does not resolve this unsettling aspect of the case. Had Con Ed prevailed in Food Pageant (supra) upon a finding by the Court of Appeals that gross negligence had not been proven, it would have spent al-1 its money to win that single case. The next plaintiff waiting his turn, having never been afforded his day in court, would still be free to try and prove that Con Ed’s gross negligence caused the blackout (Parklane Hosiery Co. v Shore, supra, p 327, n 7; Gramatan Home Investors Corp. v Lopez, 46 NY2d 481, 485-486; Gilberg v Barbieri, supra, p 291). Thus the fact that future litigation is foreseeable does not mean that a defendant should feel compelled to defend each claim, regardless of its size, to the fullest extent possible at the risk of eventually losing a case and suffering far-reaching collateral estoppel consequences as a result thereof. It must be recognized, however, that if a defendant does defend the first action with vigor and prevails, that defendant will have a significant argument against the subsequent application of collateral estoppel, should the issue arise, based on the factor of inconsistency (to be discussed, infra).

C.

A reason for refusing to afford collateral estoppel effect to a prior judgment is provided when the initial determination is based on a compromise verdict (Restatement, Judgments 2d, § 29, subd [5]; Taylor v Hawkinson, 47 Cal 2d 893; Katz v Lilly & Co., 84 FRD 378). The rationale for this is set forth in Comment g to section 29 of the Restatement of Judgments, Second: “Particularly where the issues have been tried to a jury, the circumstances may suggest that the issue was resolved by compromise or with more or less conscious reference to such matters as insurance coverage or the litigants’ relative financial position. In these and similar situations, taking the prior determination at face value for purposes of the second action would extend the effects of imperfections in the adjudicative process beyond the limits of the first adjudication, within which they are accepted only because of the practical necessity of achieving finality”.

Con Ed argues that Food Pageant (supra) was a compromise verdict. Plaintiff therein sought to prove $81,000 in damages, consisting of $38,000 in food spoilage and $43,000 of lost profits. The jury awarded $40,500, exactly half of this amount.

This argument is without merit. Although the record fails to indicate the basis for the damages awarded in Food Pageant⁴ the fact that the award was exactly half of the amount allegedly established provides an insufficient basis for concluding that a compromise verdict was involved. There is no indication that there is any precedent for this “percentage of the damages” assertion, and I agree with Special Term’s characterization of Con Ed’s position in this regard as “mere speculation”.

D.

The availability of new evidence is an important factor to consider in deciding whether to apply collateral estoppel. The development of new evidence subsequent to the determination now claimed to be controlling, which evidence might have affected the initial determination, militates against giving the first determination collateral estoppel effect (Vincent v Thompson, 50 AD2d 211, 221). Con Ed argues that certain investigative reports⁵ completed after the blackout contained exculpatory evidence with regard to the issue of its gross negligence in causing the blackout, and that it was prevented from introducing this material into evidence at the Food Pageant trial. The record herein supports Con Ed’s assertion that the material in the investigative reports may have assisted it in demonstrating the absence of gross negligence, and it is unchallenged on this record that this material was not before the Food Pageant jury.

It may be argued that the investigative reports were available prior to the Food Pageant trial, and they thus do not constitute newly available evidence. The answer to this is set forth in Comment j to section 29 of the Restatement of Judgments, Second, as follows: “Important among such other circumstances is the disclosure that the prior determination was plainly wrong or that new evidence has become available that could likely lead to a different result. It is unnecessary that the party seeking to avoid preclusion show, as he must in seeking to set aside a judgment, that the evidence could not have been discovered with due diligence; the question is not whether a prior determination should be set aside but whether it should be treated as conclusive for further purposes”.

Although the foregoing factor provides a basis for refusing to afford Food Pageant collateral estoppel effect, troubling questions remain. May a defendant keep certain evidence and defenses applicable to other potential plaintiffs in reserve so that should the first plaintiff prevail, the ensuing judgment will not be useful for collateral estoppel purposes? Was Con Ed required to assert during the Food Pageant appeal that the exclusion of the material now sought to be introduced was reversible error? Should Con Ed be required to pursue such an argument on the appeal of a $40,500 verdict when the acceptance of the argument could lead to a new trial and further litigation expenses? Although a basic sense of fairness leads me to believe that evidence should not be held back and that an appeal should be pursued with full forcefulness, I cannot ignore the fact that other evidence does exist, and the question before this court is not whether the evidentiary ruling in Food Pageant (supra) was correct or whether the Food Pageant judgment should be set aside, but whether the Food Pageant decision should be deemed conclusive in the instant case. The record herein does not provide a sufficient basis for concluding that Con Ed should be estopped from urging its new evidence argument, and this new evidence weighs heavily in favor of refusing to treat Food Pageant (supra) as conclusive on the gross negligence issue.

E.

Collateral estoppel effect will not be given to a determination which is itself inconsistent with a prior determination (Restatement, Judgments 2d, § 29, subd [4]; State Farm Fire & Cas. Co. v Century Home Components, 275 Ore 97, supra). The rationale for this, as stated in Comment f to section 29 of the Restatement of Judgments, Second, is as follows: “Giving a prior determination of an issue conclusive effect in subsequent litigation is justified not merely as avoiding further costs of litigation but also by underlying confidence that the result reached is substantially correct. Where a determination relied on as preclusive is itself inconsistent with some other adjudication of the same issue, that confidence is generally unwarranted. The inference, rather, is that the outcomes may have been based on equally reasonable resolutions of doubt as to the probative strength of the evidence or the appropriate application of a legal rule to the evidence. That such a doubtful determination has been given effect in the action in which it was reached does not require that it be given effect against the party in litigation against another adversary”.

The problem of whether collateral estoppel should ever be applied where there are multiple plaintiffs in a single accident, based upon a general skepticism as to the reliability of the initial decision, was thoroughly discussed in State Farm Fire & Cas. Co. v Century Home Components (supra, pp 105-108), as follows:

“The ‘multiple-claimant anomaly’ was first hypothesized by Brainerd Currie as one instance where, absent mutuality, the unrestrained application of collateral estoppel might produce unfair results. Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan L Rev 281 (1957). Currie posed the situation of a train wreck resulting in 50 separate claims being filed against the railroad for negligence. If the defendant railroad won the first 25 cases and subsequently lost the 26th, Currie characterized as an ‘absurdity’ the notion that the remaining 24 claimants could ride in on the strength of the 26th plaintiff’s judgment and estop the defendant on the issue of negligence. The reason was that the 26th judgment would clearly seem to be an aberration. Currie then reasoned that, if we should be unwilling to give preclusive effect to the 26th judgment, we should not afford such effect to an adverse judgment' rendered in the first action brought because ‘we have no warrant for assuming that the aberrational judgment will not come as the first in the series.’ Currie, supra at 289. Currie thus concluded that, absent mutuality, collateral estoppel should not be applied where a defendant potentially faces more than two successive actions. Currie, supra at 308.

“Those courts which have discarded the rule of mutuality and permit the offensive assertion of collateral estoppel have generally rejected Currie’s solution to the multiple-claimant anomaly in situations where the first judgment is adverse to the defendant, and have precluded a defendant from relitigating multiple claims where it has been concluded that the defendant had in actuality the incentive and complete opportunity to contest the issue fully in the first action. Currie’s reservations were based on the apprehension that the first judgment might well be an aberration, but this view failed to recognize that the very notion of collateral estoppel demands and assumes a certain confidence in the integrity of the end result of our adjudicative process. There is no foundation in either experience or policy for accepting the suggestion that a decision rendered after a full and fair presentation of the evidence and issues should be considered either substantially suspect or infected with variables indicating the question might be decided differently in another go-around. Currie subsequently conceded the untenability of his initial position and retreated from it, stating that

“ ‘* * * so long as we retain sufficient faith in the institution of trial by jury to retain it for civil cases at all, what warrant is there for mistrusting the verdict for purposes of collateral estoppel when there is no suggestion that there has been compromise or other impropriety?’ Currie, Civil Procedure: The Tempest Brews, 53 Calif L Rev 25, 36 (1965).

“Thus, once it is accepted that the propriety of collateral estoppel is dependent upon the existence of a prior full and fair opportunity to present a case, there seems little reason to limit its application simply because there are multiple claimants in the picture. Although in our adversary system There is always a lingering question whether the party might have succeeded in proving his point if he had only been given a second chance at producing evidence,’ James Talcott, Inc. v. Allahabad Bank, Ltd., 444 F2d 451, 463 (5th Cir), cert, denied, 404 US 940, 92 S Ct 280, 30 L Ed 2d 253 (1971), the unsubstantiated and conjectural possibility that a party might receive a favorable judgment somewhere down the road is an insufficient reason for refusing to apply collateral estoppel. As we stated in In re Robert Neil Gygi, 273 Or 443, 448-49, 541 P2d 1392 (1975),

“ ‘* * * the prior judgment is treated as conclusive, not because it is actually conclusive evidence of the ultimate truth as to those issues necessarily determined, but because of the public interest in the finality of judgments and in the efficient administration of justice.’

“The deference we lend prior adjudications is based on our reasonable confidence as to their correctness, rather than on a conviction of their unassailable truth. One of the purposes of the doctrine is to protect the authority of judicial decisions, and this purpose would obviously be ill-served by refusing to give effect to a prior determination on the hypothetical possibility of a contrary decision if the case were continuously retried. See Hazard, Res Nova in Res Judicata, 44 S Cal L Rev 1036, 1041-044 (1971)”.

Although rejecting a general rule of refusing to apply collateral estoppel in all multiple claimant anomaly situations, the court concluded that where a prior inconsistent decision did exist (pp 110, 114):

“We agree with the commentators to the extent at least that, where there are extant determinations that are inconsistent on the matter in issue, it is a strong indication that the application of collateral estoppel would work an injustice. There seems to be something fundamentally offensive about depriving a party of the opportunity to litigate the issue again when he has shown beyond a doubt that on another day he prevailed * * *

“We decline the invitation to decide which case was the better tried, in which case the evidence more truly presented the facts, and which ‘full and fair opportunity’ by defendant resulted in the ‘correct’ decision. The existence of conflicting determinations of similar issues demonstrates that different bodies can legitimately draw different conclusions. As noted previously, the application of collateral estoppel is a matter of policy, not a quest for certainty”. It is important to note that the observations of the Supreme Court of Oregon were made within the context of a situation where the prior determination in favor of the defendant had not been appealed, whereas the two prior determinations in favor of the plaintiffs had been affirmed on appeal.

Another important element to be weighed within the context of the prior inconsistent determination factor and the multiple plaintiff anomaly situation generally is the somewhat ethereal and esoteric nature of when a preponderance of evidence establishes negligence or gross negligence, and the difference between ordinary and gross negligence. Unlike ordinary negligence, gross negligence involves “the commission or omission of an act or duty owing by one person to a second party which discloses a failure to exercise slight diligence” (Weld v Postal Tel.-Cable Co., 210 NY 59, 72). The difference between ordinary and gross negligence “is oftentimes shadowy and unsatisfactory” (Dalton v Hamilton Hotel Operating Co., 242 NY 481, 487). Furthermore, the judgment in a lawsuit “does not represent an incontrovertible finding of absolute truth, but only reflects a decision as to probabilities” (Semmel, Collateral Estoppel, Mutuality and Joinder of Parties, 68 Col L Rev, 1457, 1465). In light of the foregoing, it gives me great pause to think that when a plaintiff carries his burden of proving gross negligence by a 51% preponderance of the evidence and thereafter proves thousands of dollars of damages, the resultant judgment forecloses the defendant from contesting the issue of gross negligence in hundreds of other actions involving hundreds of millions of dollars in alleged damages.

Con Ed points to a number of decisions in which it was found to have been free of gross negligence in causing the blackout (Lee v Consolidated Edison Co., 95 Misc 2d 120; Penichet v Consolidated Edison Co., NYLJ, May 1, 1980, p 7, col 2; Lehman v Consolidated Edison Co., NYLJ, March 25,1980, p 10, col 6; Finkelstein v Consolidated Edison Co., NYLJ, May 1, 1979, p 13, col 3). I believe that the existence of these decisions, standing alone, provides a sufficient basis for refusing to apply collateral estoppel on the issue of gross negligence in the instant case. The rationales of the Restatement of Judgments, Second, and State Farm Fire & Cas. Co. v Century Home Components (supra) are fully applicable herein.

It is no answer to say that the prior inconsistent decisions merely arose in a Small Claims Court context. At least some of the decisions were based on a careful analysis of the gross negligence issue, and I have serious reservations as to whether the jurors who decided the Food Pageant case appreciated and analyzed the complexities of the gross negligence issue to the same degree as evidenced by Judge Altman’s decision in Lee v Consolidated Edison Co. (supra). As a general proposition, there is also something inherently wrong with the concept that a defendant must try each case to the fullest so that he will avoid serious collateral estoppel consequences for foreseeable future actions, but a series of independent plaintiffs can proceed with whatever minimum effort they wish to expend in establishing their respective claims, and the consequences of a plaintiff losing are unimportant for purposes of invoking the inconsistency ingredient of collateral estoppel. A plaintiff with a substantial claim should not be free to sit back and wait for a smaller case to proceed with the expectation that the defendant prevailing in the small case can be ignored because the plaintiff with the lesser claim lacked the ability to try the case to the fullest, yet if the defendant loses, collateral estoppel will apply because of the defendant’s knowledge of the pendency of the larger claim. It is true that a plaintiff with a large claim has no control over a plaintiff with a small claim proceeding ineptly and losing, but all this means is the plaintiff with the greater claim must establish his case for himself.

F.

The final distinct factor to be evaluated is that of the use of initiative (Schwartz v Public Administrator of County of Bronx, supra; Restatement, Judgments 2d, § 29, subd [3]). As explained in Comment e to section 29 of the Restatement of Judgments, Second: ‘Failure to effectuate party joinder. A person in such a position that he might ordinarily have been expected to join as plaintiff in the first action, but who did not do so, may be refused the benefits of ‘offensive’ issue preclusion where the circumstances suggest that he wished to avail himself of the benefits of a favorable outcome without incurring the risk of an unfavorable one. Such a refusal may be appropriate where the person could reasonably have been expected to intervene in the prior action, and ordinarily is appropriate where he withdrew from an action to which he had been a party. See also § 42, Comment d, on opting out by a member of a class. Due recognition should be given, however, to the normally available option of a plaintiff to prosecute his claim without the encumberance of joining with others whose situation does not substantially coincide with his own”.

The value of the initiative was set forth by Professor Currie (Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan L Rev 281, 288): “Plaintiffs possess the initiative — a priceless strategic advantage in litigation as in war. Within broad limits, they can determine the time when and the place where action is to be brought. Moreover, there is latitude for a considerable amount of collaboration between numbers of plaintiffs similarly situated — collaboration which, in fact or in terms of available proof, would fall short of subjecting the collaborators to the binding force of the judgment in the ‘test’ case. A case in which the factors exciting sympathy for the plaintiff are very strong may be brought in a very inconvenient forum, where the opportunity to present an effective defense is subject to maximum handicaps. The jury may indulge the well-known inclination to render a compromise verdict; in all probability, the jury will act without the slightest understanding of the fact that its verdict may determine the rights of forty-nine (or one hundred and ninety-two) persons who are not parties to the case”.

The initiative possessed by plaintiffs leads to results which decrease rather than enhance the positive values that application of the collateral estoppel doctrine is meant to achieve. As stated by the United States Supreme Court in Parklane Hosiery Co. v Shore (supra, pp 329-330): “First, offensive use of collateral estoppel does not promote judicial economy in the same manner as defensive use does. Defensive use of collateral estoppel precludes a plaintiff from relitigating identical issues by merely ‘switching adversaries.’ Bernhard v. Bank of America Nat. Trust & Savings Assn., 19 Cal. 2d, at 813, 122 P. 2d, at 895. Thus defensive collateral estoppel gives a plaintiff a strong incentive to join all potential defendants in the first action if possible. Offensive use of collateral estoppel, on the other hand, creates precisely the opposite incentive. Since a plaintiff will be able to rely on a previous judgment against a defendant but will not be bound by that judgment if the defendant wins, the plaintiff has every incentive to adopt a ‘wait and see’ attitude, in the hope that the first action by another plaintiff will result in a favorable judgment. E. g., Nevarov v. Caldwell, 161 Cal. App. 2d 762, 767-768, 327 P. 2d 111, 115; Reardon v. Allen, 88 N.J. Super. 560, 571-572, 213 A.2d 26, 32. Thus offensive use of collateral estoppel will likely increase rather than decrease the total amount of litigation, since potential plaintiffs will have everything to gain and nothing to lose by not intervening in the first action”. I am cognizant of the substantial practical difficulties that would be encompassed in a situation where hundreds of otherwise unrelated plaintiffs would join in a single action, even for purposes of resolving a single issue. At this time this practical problem remains academic, however, because there is no procedural device which exists that would have enabled Con Ed to capture the initiative and resolve the issue of gross negligence in a single action covering all pending claims arising out of the blackout.

G.

The broad discretion available in applying collateral estoppel, the many factors to be considered, and the flexibility of the doctrine all combine to create a complex and unpredictable area of law. In the multiple claimant anomaly situation, some courts have expressed grave reservations about invoking collateral estoppel against a defendant (Vincent v Thompson, supra; Berner v British Commonwealth Pacific Airlines, supra; Bahler v Fletcher, 257 Ore 1), while at least one court has decided that it is against public policy to allow offensive use of collateral estoppel in any multiple claimant cases because such use “would be promotive of litigation and in subversion of sound principles of judicial administration looking to equal justice for all” (Nevarov v Caldwell, 161 Cal App 2d 762, 775). I must observe that the complexity of this area of the law seems to promote substantial litigation simply insofar as the question of the applicability of the doctrine of collateral estoppel is concerned, and the goals of consistency, certainty, and judicial economy are not served as a result.

In light of the inconsistent decisions, the new evidence, the size of the original Food Pageant verdict relative to the size of the remaining claims, and the absence of an available realistic and practical procedural device which would have enabled Con Ed to seize the initiative, I am able to conclude in this case that the offensive use of collateral estoppel is inapplicable without having to address the question of whether it should ever be applicable in the multiple claimant situation. The facts of each case must be carefully scrutinized (see Currie, Civil Procedure: The Tempest Brews, 53 Cal L Rev 25, 29), and perhaps in certain situations it is fair to invoke collateral estoppel in the multiple claimant situation (see Hart v American Airlines, 61 Misc 2d 41). Perhaps it is fair to invoke collateral estoppel against a defendant who has won the first case but lost the next 20. There is no need to pass on these questions at this time.

It is not within the domain of this court to legislate, but I cannot conclude without noting my agreement with Professor Currie’s astute observation (Currie, Mutuality of Collateral Estoppel: Limits of the Bernhard Doctrine, 9 Stan L Rev 281, 320) that: “[i]t may be that the only satisfactory way to solve the problem will be to work our way somehow outside the whole framework in which the problem is set — for example, by requiring, so far as possible, that claims arising from a single transaction and involving the same issues be joined or consolidated in a single action.” Professor Semmel’s insightful article (68 Col L Rev 1457), contains several provocative suggestions regarding expanded concepts of compulsory joinder and class actions. We may have reached a point where the courts can mete out justice in the individual case, but the goals of judicial economy, consistency, and certainty will be best served by legislative initiative. Until such time as legislative action is taken, the judiciary must continue to expend its best efforts to apply the collateral estoppel doctrine in a manner that best serves the ends of justice in the individual case. Such ends are served here by refusing to apply collateral estoppel against Con Ed on the issue of gross negligence. Accordingly, I respectfully dissent.

Boyers, J., concurs in the opinion of O’Connor, J.; Gibbons, J., concurs in a separate opinion; Thompson, J., dissents and votes to reverse the resettled order insofar as appealed from and to deny plaintiff’s motion in its entirety, in an opinion in which Damiani, J. P., concurs.

Resettled order of the Supreme Court, Queens County, dated September 13, 1982, affirmed insofar as appealed from, with costs.

1 . Con Ed’s rate schedule on file with the Public Service Commission provides that it is not liable for service interruptions resulting from ordinary negligence.

2 . Clapp, State of New York Investigation of the New York City Blackout July 13, 1977 (Jan., 1978); Staff Task Force, Department of Public Service, Second Report: The Events Leading to the Consolidated Edison Company Blackout of July 13, 1977 (Sept. 15,1977); see, also, Third Phase Report, System Blackout and System Restoration, July 13-14, 1977 (Dec. 28, 1977).

3 . The conclusion reached by Special Term is consistent with that reached by some courts on the same issue (Russo v Consolidated Edison Co., Supreme Ct, App Term, 2d & 11th Jud Dists, Jan. 13,1983; Crane v City of New York, NYLJ, Aug. 9,1982, p 12, col 6; Koch v Consolidated Edison Co., NYLJ, June 16, 1982, p 6, col 4; Whitestone Packing Corp. v Consolidated Edison Co., NYLJ, Feb. 25, 1982, p 12, col 3). Other courts have refused to apply collateral estoppel in these circumstances (Howard Stores Corp. v Consolidated Edison Co., Supreme Ct, NY County, Jan. 13,1983, Kleiman, J.; Goldstein v Consolidated Edison Co., NYLJ, July 27, 1982, p 10, col 5, mod 93 AD2d 589).

4 . It has been speculated that the jury awarded the full $38,000 for food spoilage and concluded that $2,500 would be fair compensation for lost profits.

5 . See n 2, supra.