Case v. Consumers Power Co.

615 N.W.2d 17, 463 Mich. 1

Opinions

Young, J.

We granted leave in this case to address the proper standard of care applicable to providers of electricity in stray voltage cases. We conclude that the general standard of care is always “reasonable care,” and it is for the jury to determine whether the defendant’s conduct in a given case fell below that standard.

In this case, the trial court instructed the jury that electricity is inherently dangerous and, therefore, that defendant was required to inspect and repair its electrical lines. Because the instruction imposed an obligation to inspect and repair, it was improper. Further, we cannot conclude that the error in this case was harmless. Accordingly, we vacate the judgment for plaintiffs and remand for a new trial.

FACTS AND PROCEDURAL BACKGROUND

Plaintiffs Kenneth and Diana Case were dairy farmers during the 1970’s and 1980’s. In 1986, plaintiffs sold their dairy cows in a government buyout program. According to plaintiffs, the sale was induced by financial stress, which was a result of low milk production. In 1993, plaintiffs bought a new herd and resumed dairy farming. Shortly after buying the new herd, plaintiffs concluded that their earlier milk-production problems were caused by stray voltage, and sued Consumers Power Company.

Stray voltage (technically referred to as neutrai-toearth voltage, or nev) is an electrical phenomenon that can sometimes affect livestock, causing decreased milk production in dairy cows, among other problems. According to the parties, the voltage is so low that humans cannot detect it.¹ Stray voltage can have different causes, and stray voltage on a farm may be caused by a problem on the farm, a problem in Consumers’ wires off the farm, or even a problem on another customer’s property, such as a neighboring farm.² There is a procedure, sometimes referred to as “separating the neutrals,” that, according to the parties, will eliminate all off-farm sources.

In this case, plaintiffs alleged that stray voltage depressed milk production on their farm until the neutrals were separated, whereupon milk production returned to normal. Defendant responded that it was not negligent, and that plaintiffs’ milk-production problems were not caused by stray voltage. After hearing evidence regarding stray voltage and the problems on plaintiffs’ farm, a jury rendered an award for plaintiffs, although the jury also found plaintiffs partially at fault (fifty-five percent). Defendant filed motions for directed verdict, judgment notwithstanding the verdict, and a new trial, all of which the trial court denied. Defendant appealed, and the Court of Appeals affirmed.³ We then granted defendant’s application for leave to appeal.⁴

The only issue before this Court concerns a jury instruction regarding the standard of care owed by Consumers to plaintiffs. Over Consumers’ objection,⁵ the trial court instructed the jury as follows:

It was the duty of the Defendant in connection with this occurrence to use ordinary care for the safety of the Plaintiffs’ property.

It is well settled that electrical energy possesses inherently dangerous properties requiring expertise in dealing with its phenomena. Therefore Consumers Power Company has a duty to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects. Consumers Power Company, being engaged in the transmission of electricity, is bound to anticipate ordinary use of the area surrounding the lines and to . . . appropriately safeguard an attendant risk. The test to determine whether a duty was owed is not whether Consumers Power Company should have anticipated a particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable activity done on the premises for business, work or pleasure.

STANDARD OF REVIEW

We review claims of instructional error de novo. In doing so, we examine the jury instructions as a whole to determine whether there is error requiring reversal. The instructions should include all the elements of the plaintiff’s claims and should not omit material issues, defenses, or theories if the evidence supports them. Instructions must not be extracted piecemeal to establish error. Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Murdock v Higgins, 454 Mich 46, 60; 559 NW2d 639 (1997). We will only reverse for instructional error where failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Johnson v Corbet, 423 Mich 304; 377 NW2d 713 (1985).

ANALYSIS

To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,⁶ and (4) damages. Schultz v Consumers Power Co, 443 Mich 445, 449; 506 NW2d 175 (1993). The disputed instruction in this case was intended to aid the jury in determining whether defendant breached its duty to plaintiffs to exercise “reasonable care.”⁷ This is the so-called “general stan dard of care” applicable in negligence cases. See Moning v Alfono, 400 Mich 425, 443; 254 NW2d 759 (1977). Ordinary care means the care that a reasonably careful person would use under the circumstances. See SJI2d 10.02; Detroit & Milwaukee R Co v Van Steinburg, 17 Mich 99, 118-119 (1868) (“Negligence . . . consists in a want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury”).

Ordinarily, it is for the jury to determine whether a defendant’s conduct fell below the general standard of care. Stated another way, the jury usually decides the specific standard of care that should have been exercised by a defendant in a given case. Moning, supra at 438. However, the court sometimes decides the specific standard of care if it is of the opinion “that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy . . . .” Id.

For example, in Schultz, supra, the plaintiff was electrocuted and died after an aluminum ladder he was using came too close to Consumers Power Company’s 4,800 volt transmission lines. This Court recognized that “electricity possesses inherently dangerous properties” and that “electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity.” Schultz at 451. Accordingly, the Schultz Court held not only that electric utility companies owed a duty to exercise reasonable care in maintaining their wires, but that those companies are required to “reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.” Id. at 451.⁸ The Court in Schultz cited a number of cases in support of its conclusion, all but one of which involved the dangers of unintended contact with high-voltage electricity.⁹ In this case, the trial court concluded that it was bound to instruct the jury consistently with the standard articulated in Schultz, although it expressed some reservation about doing so.¹⁰

The “duty” of inspection and repair imposed in Schultz was intended to protect against the likelihood of serious injury or death. Id. at 453-454. Clearly, “reasonable care under the circumstances” represents a sliding scale. The more severe the potential injury, the more resources a reasonable person will expend to try and prevent that injury. Similarly, the greater the likelihood that a severe injury will result, the greater the lengths a reasonable person will go to prevent it. This principle is widely recognized.¹¹

With this principle in mind, we think it beyond dispute that the dangers of high-voltage electricity (fire, electrocution, and death among them) are different in kind, and more severe, than the dangers of stray voltage. Schultz represents a very limited exception to the general rule that the jury determines the specific standard of care owed by a defendant in a particular case, and stray voltage simply does not qualify for that unusual treatment. Thus, we conclude that the obligation to inspect and repair that was articulated in Schultz is inapplicable in stray-voltage cases. Rather, we conclude that a jury must determine the precise actions required to meet the reasonable care standard in stray-voltage cases.

As the United States Supreme Court recognized long ago:

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms “ordinary care,” “reasonable prudence,” and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. [Grand Trunk R Co v Ives, 144 US 408, 417; 12 S Ct 679; 36 L Ed 485 (1892).]

Plaintiffs argue that, even if the disputed instruction was erroneous, it was harmless. Indeed, as plaintiffs point out, most of the instructions read to the jury properly cited the ordinary care standard. However, the disputed instruction specifically required defendant to “inspect and repair” its lines to prevent stray voltage. The instruction thus took from the jury one of the crucial questions before it: in light of the level of danger and likelihood of injury posed by stray voltage, what actions was defendant required to take in order to prevent such injury? Put differently, the instructions failed to present one of Consumers’ primary defenses to the jury — that Consumers had no obligation to discover and repair unknown stray volt age problems. The essence of Consumers’ position was that it was acceptable to wait for problems to be reported before it had to take action. Under these circumstances, we must reverse the verdict and remand for a new trial. Gapske v Hatch, 347 Mich 648, 657-659; 81 NW2d 337 (1957).

By our analysis we do not intend to suggest that ordinary care regarding stray voltage requires less than reasonable inspection and repair, or that it requires more than merely waiting for problems to be reported. Rather, we simply acknowledge that the jury must decide on the basis of the evidence before it exactly what actions defendant was required to take under the circumstances of this case.

For the reasons stated, we vacate the judgment for plaintiffs and remand for a new trial consistent with this opinion.

Weaver, C.J., and Taylor and Markman, JJ., concurred with Young, J.

Footnotes

1

The parties agree that humans cannot detect the stray voltage at issue, but they use different terminology to explain that fact. While the parties have not specified the range of voltage involved, they generally refer to quantities of less than three volts.

2

Indeed, Consumers argues that stray voltage exists even where there are no problems with the electrical system. Plaintiffs acknowledge that nev is always present. However, they counter that if there were no problems with the system, the voltage would be so low that even cows would not be affected.

3

230 Mich App 547; 584 NW2d 375 (1998). Chief Judge Corrigan concurred separately in the decision to affirm the trial court.

4

461 Mich 881 (1999).

5

Plaintiffs dispute whether Consumers objected to the entirety of this instruction. After reviewing the record, we conclude that Consumers objected to the instruction as a whole, properly preserving this issue. MCR 2.516(C).

6

As we explained in Skinner v Square D Co, 445 Mich 153, 162-163; 516 NW2d 475 (1994), causation is comprised of two separate elements: (1) cause in fact, and (2) legal, or proximate, cause.

7

We will use the terms “reasonable care” and “ordinary care” interchangeably.

8

Although the Schultz Court couched its analysis in terms of “duty” (“pursuant to its duty, a power company has an obligation to reasonably inspect and repair wires”), it is clear that the Court actually was deciding the specific standard of care required in order to avoid breaching the general standard of “reasonable care.” Thus, in Schultz, the Court made the very mistake warned of in Moning by blurring the distinctions between duty and the general and specific standards of care. Moning, supra at 438.

9

See Laney v Consumers Power Co, 418 Mich 180; 341 NW2d 106(1983) (involving death by electrocution after contact with an electric power line); Weissert v Escanaba, 298 Mich 443; 299 NW 139 (1941) (involving severe shock and serious bums after contact with an electric light wire); Mueller v Citizens Telephone Co, 230 Mich 173, 177; 203 NW 129 (1925) (involving a short circuit that started a fire); Black v Public Service Electric & Gas Co, 56 NJ 63; 265 A2d 129 (1970) (involving death by electrocution when a crane touched an uninsulated high voltage wire); Aguirre v Los Angeles, 46 Cal 2d 841; 299 P2d 862 (1956) (involving severe electric shock and bums after indirect contact with lines carrying over 4000 volts); Vieths v Ripley, 295 NW2d 659 (Minn, 1980) (involving injury after indirect contact with uninsulated, unmarked, high voltage power lines); Miner v Long Island Lighting Co, 40 NY2d 372; 386 NYS2d 842; 353 NE2d 805 (1976) (involving severe injuries sustained after contact with a 7,620 volt uninsulated power line).

The only exception was a case involving a power outage on a chicken farm. Rich, Mountain Electric Cooperative v Revels, 311 Ark 1; 841 SW2d 151 (1992). That case did not involve a general duty to inspect and repair. Instead, it involved a duty to remedy known damages caused by a storm.

10

The trial court voiced concern on a number of occasions, but the following quote is representative:

I guess I’ve said this before — though I was concerned about the ruling under the Schultz case and I personally as a judge believed as the trier of this case that a less stringent rule should apply in the stray voltage cases, but I believed it was my duty and I was bound to follow the rule set forth by the Supreme Court, that I was not in a position to overrate and/or distinguish the Schultz case.

In her Court of Appeals concurrence, Chief Judge Corrigan shared the trial court’s concerns regarding the disputed instruction. 230 Mich App 563-566. As further explained below, Chief Judge Corrigan was correct in noting that “[t]he scope of the duty should vary with the nature of the risk.” Id. at 566.

11

See Dembicer v Pawtucket Cabinet & Builders Finish Co, 58 RI 451, 455; 193 A 622 (1937) (“The greater the appreciable danger, the greater the degree of care necessary to constitute due or ordinary care”); Wyrulec Co v Schutt, 866 P2d 756, 762 (Wyo, 1993) (“[W]hat constitutes ordinary care increases as the danger increases. The concept of ordinary care accommodates all circumstances so that the degree of care varies with the circumstances.”); Webb v Wisconsin Southern Gas Co, 27 Wis 2d 343, 350; 134 NW2d 407 (1965) (“The degree of effort, caution, or diligence required of a person to reach or attain the standard of ordinary care necessarily varies with the degree of hazard inherent under the circumstances”).