Opinion
January 26, 1981
In an action to recover damages for negligence and breach of contract, defendant appeals from a judgment of the Supreme Court, Rockland County, dated September 27, 1979, which was in plaintiffs' favor, upon a jury verdict. Judgment reversed, on the law, without costs or disbursements, and new trial granted. The portion of the charge with respect to the standard of liability applicable to the defendant was erroneous. Once accepted by the Public Service Commission, a tariff schedule, including a limitation on liability provision, "takes on the force and effect of law and governs every aspect of the utility's rates and practices; neither party may depart from the measure of compensation or standard of liability contained therein" (Lee v Consolidated Edison Co. of N.Y., 98 Misc.2d 304, 305-306; Public Service Law, § 65, subd 5; § 66, subd 12; Lo Vico v. Consolidated Edison Co., 99 Misc.2d 897). Since the tariff schedule herein established that defendant could be held liable only if the damage caused resulted from defendant's negligence, the court erred when it charged that defendant could be held absolutely liable pursuant to subdivision 1 of section 65 Pub. Serv. of the Public Service Law. Furthermore, the charge was ambiguous insofar as the court charged that defendant could be liable for a breach of subdivision 1 of section 65 Pub. Serv. of the Public Service Law on both the theory of absolute liability and negligence per se. A new trial is necessary since the charge left the jury with an ambiguous and confused statement of the law (see Clarke v. Schmidt, 210 N.Y. 211; Nourse v. Welsch, 23 A.D.2d 618). Damiani, J.P., Gibbons, Rabin and Thompson, JJ., concur.