81 N.Y.

2d 649
621 N.E.2d 1195, 602 N.Y.S.2d 588, 62 USLW 2237, 153 P.U.R.4th 562, Util. L. Rep. P 26,347
(Cite as: 81 N.Y.2d 649)

Page 1

Am Jur 2d, Eminent Domain, 312, 344, 345,

347.
Joseph Criscuola et al., Appellants,
v.
Power Authority of the State of New York et al.,
Respondents.

NY Jur 2d, Eminent Domain, 29, 458.

ANNOTATION REFERENCES

Court of Appeals of New York

Fear of powerline, gas or oil pipeline, or related

structure as element of damages in easement
condemnation proceeding. 23 ALR4th 631.

Argued September 2, 1993;

POINTS OF COUNSEL

Decided October 12, 1993

Michael Rikon, P. C., New York City (Michael

Rikon ofcounsel), *650 for appellants. I. Claimants
should be compensated for the loss of value of their
land because of the public's fear of health hazards
emanating from electromagnetic fields generated by
the Power Authority's high voltage transmission line.
(Matter of City of New York [Lincoln Sq. Slum
Clearance Project], 15 AD2d 153, 16 NY2d 497;
Matter of Town of Islip [Mascioli], 49 NY2d 354;
Keator v State of New York, 23 NY2d 337;
McDonald v State of New York, 42 NY2d 900; Acme
Theatres v State of New York, 26 NY2d 385; Matter
of City of New York [Fourth Ave.], 255 NY 25; South
Buffalo Ry. Co. v Kirkover, 176 NY 301; Hill v
Mohawk & Hudson R. R. Co., 7 NY 152; Ross v State
of New York, 24 NY2d 80; Diocese of Buffalo v State
of New York, 24 NY2d 320.) II. New York should
adopt a rule allowing consequential damages which
result from the public's fear of electromagnetic
radiation.

SUMMARY
Appeal, by permission of the Court of Appeals, from
an order of the Appellate Division of the Supreme
Court in the Third Judicial Department, entered
December 31, 1992, which affirmed a judgment of
the Court of Claims (Peter A. McCabe, Jr., J.),
awarding claimants the total sum of $8,788.15 for
appropriation of property.
Criscuola v Power Auth., 188 AD2d 951, reversed.
HEADNOTES
Eminent
Domain--Consequential
Damages-Necessity of Proof of Reasonableness of Fear or
Perception of Danger from Exposure to Power Lines
(1) In an eminent domain proceeding arising from
defendants' acquisition of a high voltage power line
easement over claimants' property, there is no
requirement that the claimants, as a separate and
higher component of their market value proofs, must
establish the reasonableness of a fear or perception of
danger or of health risks from exposure to high
voltage power lines in order to recover consequential
damages for the taking. The issue in a just
compensation proceeding is whether or not the
market value has been adversely affected, and this
consequence may be present even if the public's fear
is unreasonable. While some credible, tangible
evidence that a fear is prevalent must be presented to
prove the adverse market value impact, to add the
extra component of reasonableness because the
condition may not be something within common
knowledge or experience is not supportable or
necessary.
TOTAL CLIENT SERVICE LIBRARY
REFERENCES

Bond, Schoeneck & King, Albany (Carl Rosenbloom

of counsel), Charles M. Pratt, New York City, and
Crowell and Moring, of the District of Columbia Bar,
admitted pro hac vice, for respondents. I. Appellants'
claim for consequential damages due to
cancerphobia, jointly litigated by appellants with 46
other claims and rejected in the Zappavigna case,
cannot be collaterally attacked on this appeal. (Miller
v State of New York, 117 Misc 2d 444; Matter of
Gowan v Tully, 45 NY2d 32; Schuylkill Fuel Corp. v
Nieberg Realty Corp., 250 NY 304; Matter of Kempf
v Town of Esopus, 92 AD2d 1076; Business Council
of N. Y. State v Cooney, 102 AD2d 1001; Matter of
Jackson v New York State Urban Dev. Corp., 67
NY2d 400; Matter of City of New York v New York
State Bd. of Equalization & Assessment, 65 NY2d
656.) II. It is an affirmed finding of fact that
appellants have failed to offer sufficient proof that
installation of a transmission line on their property

Copr. 2000 Alexander Treadwell, Sec of State, NY

81 N.Y.2d 649
621 N.E.2d 1195, 602 N.Y.S.2d 588, 62 USLW 2237, 153 P.U.R.4th 562, Util. L. Rep. P 26,347
(Cite as: 81 N.Y.2d 649)
caused any devaluation of their remainder. (Matter of
Adirondack Mtn. Reserve v Board of Assessors, 64
NY2d 727; Hylan Flying Serv. v State of New York,
49 NY2d 840.) III. This Court should not reject the
majority rule that proof of a rational basis for fear of
cancer is a prerequisite to recovery of consequential
damages resulting from the fear. (Loretto v
Teleprompter Manhattan CATV Corp., 58 NY2d 143;
New York, Ontario & W. Ry. Co. v Livingston, 238
NY 300; Searl v School Dist., Lake County, 133 US
553; Garrison v City of New York, 88 US 196;
Windham v State of New York, 34 AD2d 590, 27
NY2d 481; Priestly v State of New York, 23 NY2d
152; Smith v State of New York, 49 Misc 2d 985, 29
AD2d 1050; *651Hicks v United States, 266 F2d
515; Hare v State of New York, 143 Misc 2d 281, 173
AD2d 523; Doe v Doe, 136 Misc 2d 1015.)
OPINION OF THE COURT
Bellacosa, J.
Appellants are claimants who seek direct and
consequential market value damages for a high
voltage power line easement acquired by the Power
Authority of the State of New York (PASNY) over
their Delaware County property. The only issue
before us centers on the claim for consequential
damages, based on the claimants' assertion that
"cancerphobia" and the public's perception of a health
risk from exposure to electromagnetic emissions
from power lines negatively impact upon the market
value of their property and "will render the remainder
valueless." They argue that they should not have to
prove the "reasonableness" of this perception as a
separate, additional component of diminished market
value. We agree and reverse the order of the
Appellate Division.
A bit of procedural context is necessary. For
purposes of establishing consequential damages from
"cancerphobia," claimants here successfully moved to
have their claim tried together with 47 other similar
claims in a case with the lead title of Zappavigna v
State of New York. The Court of Claims in
Zappavigna, as affirmed by the Appellate Division
(186 AD2d 557), held, inter alia, that claimants had
not met their burden of proving that the
"cancerphobia" was reasonable, and therefore denied
consequential damages. Nonetheless, claimantsappellants here are not precluded from raising the
issue of whether reasonableness of a perceived
danger must be proven in an eminent domain
proceeding. The determination of the reasonableness
aspect of the evidentiary issue in Zappavigna became

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an integral part of each claimant's case. It does not

bind and bar the present claimants-appellants because
of the limited purpose of the joint trial arrangement
and because the claimants- appellants here had no
independent right to appeal and seek discrete review
of the evidentiary issue.
Thus, we conclude that the evidentiary issue is
before us pursuant to this Court's grant of leave to
appeal. We must thus resolve whether proof of
reasonableness is required before a claimant can
recover consequential damages for an eminent
domain taking of property, whose value may be
affected by a perceived public fear of danger or of
health risks.
We are satisfied that there should be no requirement
that *652 the claimant, as a separate and higher
component of its market value proofs, must establish
the reasonableness of a fear or perception of danger
or of health risks from exposure to high voltage
power lines. The issue in a just compensation
proceeding is whether or not the market value has
been adversely affected (see, San Diego Gas & Elec.
Co. v Daley, 205 Cal App 3d 1334, 253 Cal Rptr 144;
see generally, 4A Nichols, Eminent Domain 14.02
[1] [b], at 14- 30 [Sackman 3d ed 1993]). This
consequence may be present even if the public's fear
is unreasonable. Whether the danger is a
scientifically genuine or verifiable fact should be
irrelevant to the central issue of its market value
impact. Genuineness and proportionate dollar effects
are relevant factors, to be sure, but in the usual
evidentiary framework. Such factors should be left to
the contest between the parties' market value experts,
not magnified and escalated by a whole new battery
of electromagnetic power engineers, scientists or
medical experts. "Adverse health effects vel non is
not the issue in eminent domain proceedings: full
compensation to the landowner for the property taken
is" (Florida Power & Light Co. v Jennings, 518 So
2d 895, 897 [Fla]). As the Court of Appeals of
Kansas has noted:
"Logic and fairness ... dictate that any loss of market
value proven with a reasonable degree of probability
should be compensable, regardless of its source. If no
one will buy a residential lot because it has a high
voltage line across it, the lot is a total loss even
though the owner has the legal right to build a house
on it. If buyers can be found, but only at half the
value it had before the line was installed, the owner
has suffered a 50% loss" (Willsey v Kansas City
Power & Light Co., 6 Kan App 2d 599, 611, 631 P2d
268, 277-278).

Copr. 2000 Alexander Treadwell, Sec of State, NY

81 N.Y.2d 649
621 N.E.2d 1195, 602 N.Y.S.2d 588, 62 USLW 2237, 153 P.U.R.4th 562, Util. L. Rep. P 26,347
(Cite as: 81 N.Y.2d 649)

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not a factor that need be considered.

Thus, relying on Willsey, the Supreme Court of
Kansas concluded, and we agree, that "evidence of
fear in the marketplace is admissible with respect to
the value of property taken without proof of the
reasonableness of the fear" (Ryan v Kansas Power &
Light Co., 249 Kan 1, 7, 815 P2d 528, 533).
Although this issue is a matter of first impression in
this Court, it has been well ventilated in sibling
jurisdictions whose precedents offer some useful
instruction. The Court of Appeals of Kansas
summarized the three prevailing views as of 1981 in
Willsey v Kansas City Power & Light Co. (6 Kan
*653 App 2d 599, 631 P2d 268, supra). The Willsey
court noted that the characterizations and labels
attached to the varieties of test are inaccurate. Thus,
the so-called "majority" view, in which evidence of
the effect on market value of a fear of danger from
power lines was unequivocally rejected, was actually
followed by only four States in 1981 (id., 631 P2d, at
273-274 [Ala, Fla, Ill, W Va]). In contrast, the
"minority" view, in which such evidence is routinely
admitted on a simple showing that the fear exists and
affects market value, was followed by 11 States and
the Sixth Circuit (id., 631 P2d, at 274 [Ark, Cal, Ind,
Iowa, La, NC, Ohio, Okla, SD, Va, Wash]). In these
jurisdictions, the reasonableness of the fear is either
assumed or deemed irrelevant or collateral to the
market value issue and the considerations that
customarily pertain to its just resolution. Although it
preferred the so- called "minority rule," the Willsey
court held it was unnecessary to determine whether to
adopt that rule since, on the facts of that case, the
"intermediate" test, "the most stringent rule which
can justifiably be applied," was met (Willsey v
Kansas City Power, 6 Kan App 2d, at 611, 631 P2d,
at 278, supra).
Recently, Florida, California and Kansas reaffirmed
that reasonableness is not a factor in determining
whether consequential damages may be awarded for
a diminution or elimination of market value due to a
fear of health risks from exposure to power lines. In
Florida Power & Light Co. v Jennings (518 So 2d
895, supra), the Supreme Court of Florida held the
"public's 'fear' as a factor which may be relevant to
the issue of just compensation may be utilized as a
basis for an expert's valuation opinion regardless of
whether this fear is objectively reasonable." In San
Diego Gas & Elec. Co. v Daley (205 Cal App 3d
1334, 1349, 253 Cal Rptr 144, 152, supra), the
California Court of Appeal added that "the question
was whether the fear of the danger existed and would
affect market value" in holding that reasonableness is

We, of course, do not hold that claimants are

relieved from giving any proof to establish their
claims and just compensation damages. Rather,
claimants must still establish some prevalent
perception of a danger emanating from the
objectionable condition. As the Ryan court noted, "no
witness, whether expert or non-expert, may use his or
her personal fear as a basis for testifying about fear in
the marketplace. However, any other evidence that
fear exists in the public about the dangers of high
voltage lines is admissible" (*654Ryan v Kansas
Power & Light Co., 249 Kan 1, 7, 815 P2d 528, 533534, supra). This standard protects, as a
countermeasure, the legitimate municipal concern
against spurious claims and unjust encroachments
against the public treasury. Some credible, tangible
evidence that a fear is prevalent must be presented to
prove the adverse market value impact. Claimants
should have to connect the market value diminution
of the property to the particular fear in much the
same manner that any other adverse market effects
are shown, e.g., by proffering evidence that the
market value of property across which power lines
have been built has been negatively affected in
relation to comparable properties across which no
power lines have been built (see generally, 4 Nichols,
Eminent Domain 12.02 [Sackman 3d ed 1993]).
To add the extra component of reasonableness, as
PASNY urges, because the condition may not be
something within common knowledge or experience,
like an obscured lovely landscape view, is not
supportable or necessary. Thus, while a personal or
quirky fear or perception is not proof enough, the
public's or the market's relatively more prevalent
perception should suffice, scientific certitude or
reasonableness notwithstanding.
Accordingly, the order of the Appellate Division
should be reversed, with costs, and the case remitted
to the Court of Claims for further proceedings in
accordance with this opinion.

Chief Judge Kaye and Judges Simons, Titone,

Hancock, Jr., and Smith concur; Judge Levine taking
no part.
Order reversed, etc.*655

Copr. (c) 1999, Alexander Treadwell, Secretary of

State, State of New York.

Copr. 2000 Alexander Treadwell, Sec of State, NY

81 N.Y.2d 649
621 N.E.2d 1195, 602 N.Y.S.2d 588, 62 USLW 2237, 153 P.U.R.4th 562, Util. L. Rep. P 26,347
(Cite as: 81 N.Y.2d 649)

N.Y. 1993.
CRISCUOLA v PASNY
END OF DOCUMENT

Copr. 2000 Alexander Treadwell, Sec of State, NY

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