Groncki v. Detroit Edison Co.

557 N.W.2d 289, 453 Mich. 644

• Court: Michigan Supreme Court
• Decided: December 30, 1996
• Docket: 101954, 102212, 102650 and 103455, Calendar Nos. 11-13
• Status: Published

Opinions

Brickley, C.J.

These cases were combined for review because they all concern allegations of negligence on the part of a power company resulting in harmful contact with uninsulated overhead power lines. Each of the cases against Detroit Edison was decided on summary disposition regarding the issue of duty. This Court reviews summary judgments de novo and must review the entire record to see if the defendant was entitled to summary disposition. Adkins v Thomas Solvent Co, 440 Mich 293, 302; 487 NW2d 715 (1992). The existence of a legal duty is a question of law for the Court to decide. Trager v Thor, 445 Mich 95; 516 NW2d 69 (1994).

Also before the Court is Barbara Bohnert’s suit against defendant Carrington Homes, Inc. This suit alleges that Carrington is also liable for the electrocution death of her husband under Funk v General Motors Corp, 392 Mich 91; 220 NW2d 641 (1974). This case was also decided by a grant of summary judgment for the defendant, which was reversed by the Court of Appeals. Therefore, the standard of review is also de novo. The issues relating to Carrington will be discussed separately from those concerning Edison.

I. FACTS

A. PARCHER v DETROIT EDISON

Theodore Parcher¹ was electrocuted while moving a twenty-nine-foot high scaffold on a forklift on July 25, 1990. He was twenty-nine years old at the time of the accident and was working as a forklift operator at the construction of a supermarket. The power lines were sixty-five feet from the building, and thirty-five feet above the ground. The accident occurred as Mr. Parcher attempted to reverse around a pile of debris, bringing the scaffolding into contact with the power lines. Edison owned and operated the lines at the time of the accident, knew of the ongoing construction, and had agreed to move one of the poles to accommodate a parking lot that was being built along with the building. The power lines had been in place for a number of years before the construction began. Further, Mr. Parcher’s employer had warned workers at the site of the presence of the power lines. Mr. Parcher’s injuries resulted in the amputation of his right arm, right leg, and left foot.

The defendant was granted summary disposition on December 23, 1992. This decision was affirmed by the Court of Appeals on January 24, 1995. In its opinion, the Court of Appeals found that the accident was not legally foreseeable and therefore, the defendant owed the plaintiff no legal duty. 209 Mich App 495; 531 NW2d 724 (1995).

B. GRONCKI v DETROIT EDISON

Gerald Groncki was a maintenance supervisor at a condominium complex and was injured when a ladder that he was moving came into contact with an uninsulated overhead electrical line. As a result, the plaintiff went into cardiac arrest and suffered bums of his left foot. He remained in the hospital for approximately ten days and a toe on his left foot was amputated. Mr. Groncki also alleges that various cognitive difficulties and personality changes resulted from his injuries. Mr. Groncki’s wife has also filed a loss of consortium claim.²

On the day of the accident, Mr. Groncki was working on the roof of a condominium with another employee. The men were using a twenty-four-foot aluminum ladder to gain access to the roof. Mr Groncki had warned the other worker about the danger of working near the power lines. After the other employee left to work in a different area, Mr. Groncki attempted to move the ladder by himself. Unfortunately, he lost control of the ladder, which fell onto the power lines. The power lines where twenty-one feet high and 14V2 feet from the building. The lines had been in place for six years before the portion of the complex on which Mr. Groncki was working had been built. Further, Mr. Groncki worked on the construction of the complex and was familiar with its facilities.

Edison was awarded summary disposition by the circuit court on May 27, 1992. The Court of Appeals reversed this decision on December 27, 1994, in an unpublished opinion per curiam (Docket No. 153538). The Court of Appeals determined that it was foreseeable that someone using an aluminum ladder could be injured by the power lines. This ruling is now appealed by the defendant to this Court.³

C. BOHNERT v DETROIT EDISON

This case concerns the fatal electrocution of Wendell Bohnert on October 10, 1989, at a home construction site.⁴ Mr. Bohnert was a delivery man for National Cement Products of Toledo, Ohio. At the time of the accident, he was fifty-eight years old and had been delivering masonry supplies for National Cement Products for forty years. On October 10, 1989, Mr. Bohnert was delivering a load of cement blocks that had been ordered by the president of Carrington, Stephen Dick. No one was at the site when Mr. Bohnert arrived, so he began to unload his truck unsupervised. In doing so, despite the presence of specific warnings on the truck, Mr. Bohnert deployed the boom of his truck beneath power lines. Unfortunately, the boom touched the power lines and Mr. Bohnert was killed. The electrical lines were located twelve feet from the house and at a height of twenty-six feet. The power lines were uninsulated. Edison, who owned and controlled the lines, was aware of the construction and had inspected the site. Edison refused to insulate or move the power lines free of expense, but informed the homeowner that this could be done for a fee. However, Edison reviewed the planned location of the house and requested that the homeowners move it four feet farther away from the lines in order to achieve a twelve-foot clearance. The homeowners complied with this request.

The plaintiff, Mr. Bohnert’s wife, alleges that Edison was negligent in failing to insulate, relocate, or deenergize the wires, and in failing to warn her husband of their presence. Mrs. Bohnert also alleges that Carrington, a licensed general contractor, is liable as a general contractor under this Court’s decision in Funk. Carrington disputes this and claims to have been one of many subcontractors performing work on a “cost plus” basis. Carrington argues that it only performed construction as requested by the homeowners, who were their own general contractors. However, a local ordinance requires a licensed general contractor to manage the construction. Furthermore, Mr. Dick, the president of Carrington, gave deposition testimony that Carrington was the general contractor. Further, Carrington claimed to have been the general contractor during oral argument before the circuit court.

Both Edison and Carrington were awarded summary disposition in circuit court. However, these decisions were reversed by the Court of Appeals in an unpublished opinion per curiam (Docket No. 158314). The Court of Appeals found that there was a question of fact regarding whether the injury was foreseeable by Edison and whether the site was a common work area under the authority of Carrington. Both defendants Edison and Carrington appeal this ruling.

n. CLAIMS ASSERTED AGAINST DETROIT EDISON

A. STATEMENT OF LAW APPLICABLE TO EACH PLAINTIFF

The scope of the duty owed by electrical companies to move, insulate or de-energize overhead power lines is a question of foreseeability. Schultz v Consumers Power Co, 443 Mich 445, 452; 506 NW2d 175 (1993). Utility companies, particularly electric companies, are charged with a duty to protect against foreseeable harm. Id.

In Dees v L F Largess, 1 Mich App 421; 136 NW2d 715 (1965), the plaintiff was electrocuted when a crane came into contact with overhead power lines owned by Detroit Edison. The plaintiff, a construction worker, was holding a hook hanging from a crane when the crane’s cable contacted a power line. The Court of Appeals upheld a directed verdict for Detroit Edison. The Court found that Detroit Edison was not negligent in failing to anticipate that a skilled workman, with full knowledge of the wires, would come into contact with these wires through the cable of a crane. Id. at 427.

In Koehler v Detroit Edison Co, 383 Mich 224; 174 NW2d 827 (1970), the plaintiff was killed while riding on the arm of a crane as part of his employment at a construction site, when the crane’s arm came into contact with overhead electrical cables. This Court upheld the trial court’s determination that the electrical company owed no duty to the plaintiff, despite its knowledge of the construction. Id. at 231. In reaching this conclusion, this Court stated:

The mere fact that Detroit Edison knew a building was under construction near its power line and that, from time to time, mobile cranes were being brought upon the premises to be used in construction work, would not, standing alone, create a duty upon Detroit Edison to remove the charge, insulate the line, or notify the parties of a dangerous condition. [Id.]

Thus, because Detroit Edison could not anticipate that cranes on construction sites would contact its power lines, it owed no duty to that plaintiff.

The Court of Appeals revisited the issue in Ransford v Detroit Edison Co, 124 Mich App 537; 335 NW2d 211 (1983). In that case two men were electrocuted, and the plaintiff’s decedent killed, when the wire-guided model planes they were flying crashed into electrical wires. Id. at 541-542. The Court found that there was no duty on the part of the power company because the occurrence was completely unforeseeable. Id. at 546. Rather, it stated that liability could not be based on such purely fortuitous circumstances. Id. Further, the Court explained that the issue of foreseeability should be determined at the time the lines were installed. Id.

This Court last spoke on this issue in Schultz v Consumers Power Co, supra. That case involved the death of a homeowner when a ladder that he was holding came into contact, either directly or through an electric arch, with a power Une. The electric line had been placed 15V2 feet away from the preexisting house. At the time of the accident, the line was frayed and pitted. In finding a duty, this Court noted that electrical companies occupy a special role as providers of an essential, yet extremely dangerous commodity. Id. at 450-451. This special relationship with the public was found to impose a duty upon electrical companies to “reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.” Id. at 451. The Court also formulated a test to determine when this duty existed in a particular case:

The. test to determine whether a duty was owed is not whether the company should have anticipated the 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. [Id. at 452.]

The Court determined that an accident involving a homeowner was foreseeable, given the location and disrepair of the power line.

The plaintiffs in Parcher and Bohnert also allege that Edison owed a duty to warn of the presence of dangerous power lines.⁵ However, there is no duty to warn someone of a risk of which that person is aware. Bullock v Gulf & Western Mfg, 128 Mich App 316; 340 NW2d 294 (1983). Specifically, there is no duty to warn of known overhead power lines. Wilhelm v Detroit Edison Co, 56 Mich App 116; 224 NW2d 289 (1974) (finding no duty to warn severally, but finding a question of fact because the plaintiff believed the lines to be insulated). Further, the duty to warn only arises when there is a foreseeable victim. Thus, this duty, like the duty to inspect and repair, does not arise where it is not foreseeable to Edison that the plaintiff would come into harmful contact with the wires.

B. APPLICATION

1. PARCHER v DETROIT EDISON

The Court of Appeals correctly found that no duty arose on the part of Edison to protect Mr. Parcher. This case is closely analogous to Dees and Koehler. Edison, like the defendant in Dees, could not have reasonably foreseen that a skilled workman, with full knowledge of the power lines, would bring a crane into contact with those power lines. As in Koehler, Edison knew that there was ongoing construction, but had no reason to know that any high profile machinery would be used near its power lines. Therefore, under Dees and Koehler, Edison did not owe a duty to Mr. Parcher.

Similarly, the circumstances of Mr. Parcher’s accident are fortuitous. The forklift Mr. Parcher was driving only came into contact with the wire because Mr. Parcher was transporting an uncollapsed scaffold while reversing around a pile of debris. Edison could not have reasonably foreseen that a worker would reverse around a pile of debris and bring a twenty-nine-foot high uncollapsed scaffold into contact with its electric wire. Thus, summary disposition was appropriate because these events were not foreseeable, and, therefore, no duty arose. Ransford, supra.

Further, this was not a poorly maintained wire that had been placed close to a home as in Schultz. Rather, this wire was on a commercial construction site and was sixty-seven feet from the building at a height of thirty-five feet. Not only is there no evidence showing that this wire was not adequately maintained, but the distance from the building is sufficient to make this accident unforeseeable. Thus, Schultz is easily distinguishable from this case.

Finally, Edison did not owe Mr. Parcher a duty to warn. Mr. Parcher’s contact with the wire was clearly unforeseeable, and, thus, no duty to warn arose. Further, Mr. Parcher had been warned about the wires by supervisors on the job site. Thus, Mr. Parcher was fully aware of the presence of the wires. Edison owed no duty to warn about a known danger. Wilhelm, Bullock, supra.

2. GRONCKI v DETROIT EDISON

Mr. Groncki alleges that Edison owed him a duty to: inspect, repair, and insulate the power lines; place the lines in a safe location; and erect safety barriers around them. Similar to the allegations of Mr. Parcher, Mr. Groncki’s claim rests on the question of foreseeability. The Court of Appeals reversed the trial court’s grant of summary judgment, finding that Edison owed a duty to Mr. Groncki. We disagree and restore the award of summary disposition for Edison.

Mr. Groncki bases his claim on Schultz’ language that a power company owes a duty on the basis of “the probability that injury might result from any reasonable activity done on the premises for business, work or pleasure.” Schultz at 452. Mr. Groncki claims that he was engaged in reasonable activity while repairing the roof of the condominium and, therefore, was owed a duty by Edison. However, there are several facts that distinguish this case from Schultz. In Schultz, the probability of injury was based upon a frayed line that had been placed next to a preexisting structure. Further, the plaintiff in Schultz was a homeowner making repairs to his own home. In this case, there is no evidence suggesting that the line was in poor condition or was not properly maintained. Further, Mr. Groncki was not a homeowner unfamiliar with the dangers of electric lines. Rather, he was an experienced workman who was fully aware of the presence of the wires. Indeed, he warned a coworker to take exceptional care around the power lines. Thus, it was not foreseeable that he would ignore his own warnings and attempt to move the fully extended metal ladder himself,⁶ and Edison owes no duty to Mr. Groncki.

3. BOHNERT v DETROIT EDISON

The Court of Appeals erred in overturning the grant of summary disposition on Mrs. Bohnert’s claim against Edison. Mr. Bohnert’s injury was not foreseeable to Edison. Therefore, Edison owed no duty to warn Mr. Bohnert or to move, insulate, or de-energize the power lines. As in Dees, Mr. Bohnert was a skilled and experienced workman with years of experience. Indeed, Mr. Bohnert had been delivering masonry supplies for forty years. Further, Mr. Bohnert had knowledge of the dangers of operating the boom on his truck near power lines. Indeed, there was a warning against such operation only a few inches above the boom’s controls. Simply put, it was not foreseeable to Edison that an experienced, skilled workman would disregard clear instructions and operate his delivery vehicle directly beneath power lines. Thus, no duty arose on the part of Edison to plaintiff.

Further, Edison had not been notified that any type of machinery would be operating at that location on that day. It clearly had no knowledge that a large delivery truck equipped with a boom would be operated directly beneath its lines. While Edison did know that a house was being built at that location and could reasonably expect that machinery would be used, this degree of knowledge was found insufficient to create a duty in Koehler. Plaintiff’s argument that the driveway was the only place where such material could be delivered does not change this conclusion. Edison cannot be expected to know all probable delivery locations on any given construction site. Rather, it can reasonably expect that trained workmen will not operate delivery vehicles directly under power lines or, if such operation is required, will properly inform Edison.

The mere location of the power line does not impose a duty on Edison. While this line was closer than that in Schultz, there are significant factors that distinguish this case. First, there is no evidence that the power line in this case was in disrepair. In Schultz, the wire was pitted and frayed and susceptible to arching. Secondly, the power line had been placed in its location by Edison before the commencement of construction. In Schultz, the power company had placed the line dangerously close to a preexisting house. Indeed, Edison had informed the homeowners in this case of the danger of building too close to power lines, and had convinced them to move the structure several feet to achieve additional clearance. These factors weigh in favor of not imposing a duty on Edison.

c. public policy considerations

Public policy also mitigates against the imposition of a duty in these cases. Sound public policy is a factor in deciding duty. Sizemore v Smock, 430 Mich 283, 293; 422 NW2d 666 (1988); Antcliff v State Employees Credit Union, 414 Mich 624, 630-631; 327 NW2d 814 (1982), see also Prosser & Keeton, Torts (5th ed), § 53, p 358. As this Court has recognized, “Social policy must intervene at some point to limit the extent of one’s liability.” Sizemore at 293. Further, these plaintiffs contend that the duty to inspect and repair imposed by Schultz includes the duties to relocate, insulate, de-energize, warn, and erect safety barriers around power lines. Schultz at 455. Inasmuch as such a holding would expand Schultz, it is proper that this Court consider the public policy ramifications of such a decision.

The social policy at issue is the public’s need for electric power at a reasonable cost. To impose a duty to relocate, insulate, or de-energize power lines whenever third parties construct buildings near power lines would interfere with this policy. The costs of insulating or moving these lines would be significant. Edison alone has over 35,000 miles of power lines in this state. To impose the duty the plaintiffs request would certainly amount to a huge cost that would be passed on to the consuming public. Further, it may often be impossible for Edison and other power companies to move power lines away from new construction without moving them closer to preexisting structures. In any event, the costs of injuries such as those suffered by these plaintiffs will have to be met in another societal forum.

HI. BOHNERT v CARRINGTON HOMES

The Court of Appeals correctly overturned the award of summary disposition for Carrington. The liability of Carrington is governed by Funk, supra. Funk involved an elevated work area shared by many subcontractors and created an exception to the general rule that a general contractor is not liable for the injuries of a subcontractor’s employee.

We regard it to be a part of the business of a general contractor to assure that reasonable steps within its supervisory and coordinating authority are taken to guard against readily observable, avoidable dangers in common work areas which create a high degree of risk to a significant number of workmen. [Id. at 104.]

Thus, for there to be liability under Funk, there must be: 1) a general contractor with supervisory and coordinating authority over the job site, 2) a common work area shared by the employees of more than one subcontractor, and 3) a readily observable and avoidable danger in that common work area, 4) that creates a high degree of risk to a significant number of workers.

Carrington seeks to avoid liability by arguing that it was not a general contractor with supervisory control over the work area. It claims merely to be one of many subcontractors hired by the homeowners. However, the president of Carrington stated in his deposition that Carrington was the general contractor. Furthermore, he admitted that he ordered the supplies Mr. Bohnert was delivering and normally supervised this type of delivery. Finally, Carrington took the position that it was the general contractor before the circuit court. Thus, considering these facts in the light most favorable to the nonmoving plaintiff, there' is a genuine question of material fact with regard to whether Carrington was the general contractor and had supervisory and coordinating control over the workplace.

Further, a question of fact exists regarding the presence of a common work area. In Erickson v Pure Oil Corp, 72 Mich App 330; 249 NW2d 411 (1976), the Court of Appeals found that for a common work area to exist there must be an area where the employees of two or more subcontractors will eventually work. This holding was reaffirmed by the Court of Appeals in Phillips v Mazda Motor Mfg, 204 Mich App 401, 408; 516 NW2d 502 (1994). Carrington argues that this rule unduly extends Funk, creating liability any time employees of different contractors will eventually work in the same location. The common work area, however, is only one element of Funk. The mere presence of a common work area, without supervisory control by the general contractor and a readily observable and avoidable risk to a significant number of workers, will not necessarily impose liability. Thus, Erickson was not an improper extension of Funk, but merely established the test for one of Funk’s four elements.

However, there is a question of fact regarding whether employees of other subcontractors would be working in this area. The area in question appears to be the main driveway into the construction site. Mrs. Bohnert claims that this was used by all workmen on the project. Carrington simply asserts that Mr. Bohnert was the only person who worked in that area because he was the only person injured there. This dispute presents an unresolved factual question. Therefore, summary judgment is not appropriate at this juncture.

We also note that a factual question exists regarding the presence of a readily observable, avoidable risk to a significant number of workmen. Carrington argues that the line was in the plain view of Mr. Bohnert. Therefore, there is at least a question of fact with respect to whether it was observable to Carrington. The parties also dispute the feasibility of safety precautions that may have avoided any risk posed by the power line. Finally, there is a dispute about the number of employees exposed to any such risk. Mrs. Bohnert claims that most, if not all, the workers and their equipment passed along this driveway and directly beneath the power line. To support this claim, Mrs. Bohnert alleges that this driveway was the only feasible means of access to the construction site. Carrington asserts that this is not the case. Once again, this conflict demonstrates a question of fact that renders summaiy disposition inappropriate.

It is consistent to impose a duty for this accident on Carrington, but not on Edison. Edison could not foresee the accident because it was not informed that Mr. Bohnert would be operating a crane-like delivery track beneath its wires. However, if Carrington is shown to have had sufficient control of the job site, it may have been aware of the likelihood of this accident. Further, when the elements of Funk are satisfied, a general contractor is presumed to have been able to foresee that readily observable and avoidable risks will lead to accidents and injuries. Thus, this accident may have been foreseeable with respect to Carrington, but not to Edison. However, at this juncture there are material questions of fact with respect to each of the elements of Funk. Thus, summary disposition was not proper and the Court of Appeals decision reversing the judgment of the trial court is correct.

CONCLUSION.

Therefore, I would affirm the judgment of the Court of Appeals in Parcher, reverse in Groncki, and affirm in part and reverse in part in Bohnert. The claims against Edison should be dismissed, and Mrs. Bohnert’s suit against Carrington remanded to the circuit court for further proceedings consistent with this opinion.

Boyle, J., concurred only in the result.

1 To avoid confusion, all plaintiffs will be referred to by surname.

2 As this opinion addresses the duty of Edison to Mr. Groncki, Mrs. Groncki’s derivative claim does not require separate treatment.

3 Edison claims that the Court of Appeals expanded the scope of Mr. Groncki’s allegations. It asserts that Mr. Groncki only alleged negligence in the placement of the wires, while the Court of Appeals determined that Edison was also negligent in failing to properly insulate the lines, not properly inspecting and repairing the lines, and failing to erect barriers around the lines. However, Mr. Groncki’s complaint alleges that the defendant was negligent in its “construction, maintenance, operation, repair and/or inspection” of the lines. Given the requirements for pleading, the claims cited by the Court of Appeals were encompassed by the broad language of Mr. Groncki’s complaint.

4 The owners of the home, Roy and Ernestine Adkins, were initially codefendants in the suit. However, unlike Carrington and Detroit Edison, the plaintiff did not appeal the award of summary disposition for them. Thus, the Adkinses are no longer parties to this lawsuit.

5 At oral argument, Mr. Groncki’s counsel stated that her case did not involve a duty to warn.

6 Edison also argues that it met applicable safety standards set forth by the National Electric Safety Commission and adopted by the Michigan Public Service Commission. 1991 AACS, R 460.813. However, as recognized in Schultz, “An argument on the basis of industry standards, therefore, goes to the question whether a defendant breached its duty of ordinary care, not whether a duty existed.” Schultz at 456. Thus, the NESC standards are not applicable to the appeal before this Court, which solely concerns the issue of duty.