Defendant manufactures chemicals in Tonawanda, New York. On March 1, 1973 an explosion occurred in
Special Term’s order denying the motion to dismiss should be affirmed. The pleadings establish that plaintiff was within the zone of foreseeable danger from negligent acts of defendant (see Palsgraf v Long Is. R.R. Co.,
The circumstance which makes this case unique, however, is that the damages claimed by plaintiff stem not so much from the direct invasion of plaintiffs premises as from the interruption of power caused by destruction of Niagara Mohawk’s transmission lines. The amended complaint alleges that "the explosion and fire created a substantial interference with the right and ability of plaintiff to carry on the production of tires
Plaintiff’s claim may be conveniently divided into damages representing lost profits sustained during the 24-hour shutdown resulting from the loss of energy ($170,000) and physical damage to the property which resulted both from the blast and from the loss of energy ($16,445). It is the claim for damages sustained when the electrical power failed, principally those for lost profits (anticipated sales less cost of production and selling) to which the parties address themselves on this appeal.
Furthermore, defendant’s duty and the foreseeability of harm to plaintiff was no less because part of the damage occurred as a result of the destruction of power lines rather than directly by concussion and flying objects, because the injury to plaintiff came from the same physical force (the explosion of stored chemicals) which required the exercise of care towards it generally (see Matter of Kinsman Tr. Co., supra, pp 723-726). Plaintiffs physical damage, losses in materials or equipment and cost of clean-up resulting from flying debris and concussion, are compensable under familiar principles of law and to the extent that similar damages were sustained and are proved, which were caused by the interruption of electrical service, they are also compensable.
There remains for consideration plaintiffs claim for lost profits. Logically, if damage from the loss of power was foreseeable, then the interruption of production was also foreseeable and the lost profits resulting from the interruption should be compensable, if proved and if, indeed, lost profits are recoverable at all in a tort action. However, while there is some limited authority that lost profits may be recovered (see Turner v Reynolds,
Essentially plaintiff’s claim is that its profit from the production of tires during a 24-hour period is $170,000, that it was shut down 24 hours by defendant’s negligence and, therefore, it is entitled to these damages. A stoppage in production, however, does not necessarily result in lost profits and the damage which a manufacturer may sustain from a 24-hour shutdown in production as a result of an interruption of electrical power may well be too remote and speculative to be compensated (see Witherbee v Meyer,
Plaintiff has referred us to Newlin v New England Tel. v Tel. Co. (316 Mass 234, supra), a case in which plaintiff’s mushroom crop was lost when defendant negligently cut the power line which supplied the electricity regulating the room temperature. In that case the court sustained the complaint but there is no statement in its decision suggesting that the plaintiff was to be compensated beyond the value of the lost crop. Similarly in this case, plaintiff is entitled to be compensated for materials damaged or destroyed as a result of the electrical interruption. That, however, is not the same as permitting it to recover for lost profits (see Watts v Hewlett Bay Co.,
There are cases in which compensation for lost profits has been permitted, primarily those involving the sale of time or services. One example is the tortious interference with a hotel owner’s use of rented hotel space. The night having passed, the owner’s lost profit can never be recovered (see Turner v Reynolds, supra; Seaway Hotels v Gragg, supra; cf Nodine v State of New York,
The order should be affirmed.
Marsh, P. J., Moule, Goldman and Wither, JJ., concur.
Order unanimously affirmed, with costs.
Notes
. The action arises out of the same incident as does the claim in Beck v FMC Corp. (
. The bill of particulars also includes other damages apparently attributable to the loss of electrical power, e.g., motor repairs, tires downgraded or scrapped, heating oil, etc.
. Plaintiff has cited several out-of-State cases involving watercourses in support of its argument. The cases are distinguishable because riparian owners may have proprietary rights in the watercourse or riparian rights incident to ownership of the realty. Plaintiff does not have a similar interest in Niagara Mohawk’s power distribution system. Furthermore, under the usual New York rules, the measure of damages for pollution or diversion of watercourses is the diminution in rental value of the land (see 7B Warren, Negligence, § 1.11).
. The treatise citations rely primarily upon the general language found in Steitz v Gifford (infra) and should be read with the understanding that Steitz involved an individual plaintiff who sustained personal injury and evidence of lost profits was received to show his diminished earning capacity (see 1 NY PJI2d 651-653; 2 Harper and James, Law of Torts, § 25.3, Supp and authorities cited therein).