Hay ex rel. Hay v. Memphis Light, Gas & Water Division

426 S.W.2d 182, 221 Tenn. 258, 25 McCanless 258, 1968 Tenn. LEXIS 461
CourtTennessee Supreme Court
DecidedMarch 18, 1968
StatusPublished
Cited by3 cases

This text of 426 S.W.2d 182 (Hay ex rel. Hay v. Memphis Light, Gas & Water Division) is published on Counsel Stack Legal Research, covering Tennessee Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hay ex rel. Hay v. Memphis Light, Gas & Water Division, 426 S.W.2d 182, 221 Tenn. 258, 25 McCanless 258, 1968 Tenn. LEXIS 461 (Tenn. 1968).

Opinion

Mr. Justice Humphreys

delivered the opinion of the Court.

[260]*260Thomas Hay, a child nine years old, climbed upon a platform supporting three electrical transformers, the property of Memphis, to fly a kite, where he suffered severe electrical burns. The three transformers were fed by primary wires and a neutral wire carrying a total of 12,500 volts between the two primary wires and 7,200 volts between each primary and the neutral wire. In some way, either by arcing or by contact, or both, Thomas was drawn against the transformer and burned. For these injuries, and expenses, etc., Thomas and his mother sued Memphis alleging facts invoking the “playground doctrine” and charging Memphis with acts of gross negligence and carelessness said to have directly and proximately caused the injuries and damages as follows:

“That on January 26, 1964, and for a long time prior thereto, the defendants owned the vacant lot on the south side of Willowview Street between 4057 and 4069 Willowview Street in Memphis, Shelby County, Tennessee, and the uninsulated high voltage electric wires, transformers and other1 electrical equipment and supporting structure located and situated on said lot.
“That on or about January 26, 1964, the plaintiff, Thomas Hay, a minor then nine (9) years of age and his ten year old brother were playing on said vacant lot and on said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment when said minor plaintiff, being unaware of the peril involved, inadvertently came in contact with or in close proximity to said uninsulated high voltage electric wires, transformers and other electrical equipment and thereby suffered serious, severe, painful and permanent personal injuries as will be hereinafter shown. [261]*261“That the defendants were gnilty of the following acts of gross negligence and carelessness which directly and proximately caused said accident and the resulting injuries and damages sustained by said minor plaintiff, to-wit:
“1. They knew that children of tender years habitually played upon said vacant lot to the extent that said lot became known as a playground for children, but failed to exercise ordinary care to see that said premises were reasonably safe for that purpose, thereby permitting said children to be exposed to a known danger.
“2. They made and permitted said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment to be easily accessible to the young children who frequently played upon said vacant lot although, they knew, or in the exercise of reasonable and ordinary care should have known, that such children would be attracted to and indeed did play upon said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment and, further, that because of their youth they would fail to discover and appreciate the danger inherent in the situation.
“3. They failed to erect a fence around, to post warnings, to insulate, or to otherwise guard said uninsulated high voltage electric wires, transformers and other electrical equipment and supporting structure despite the fact that the cost of such insulation and of erecting such a fence and posting warnings would have been small as compared to the likelihood and seriousness of injury to the young children playing on said vacant lot and supporting structure.
[262]*262“4. They failed to guard against just such an accident as did occur in this ease when they knew said vacant lot was being frequently used by young children as a playground and when they knew, or in the exercise of reasonable and ordinary care should have known, that such children would be attracted to and in fact did play upon said structure supporting said uninsulated high voltage electric wires, transformers and other electrical equipment thereby permitting said children to be exposed to a known danger and to an unreasonable risk of bodily injury which said children would fail to discover and appreciate because of their youth and inexperience.”

Later, their declarations were amended to plead and rely upon the doctrine of res ipsa loquitur; and upon Ordinance sec. 918 of the Memphis Municipal Code requiring electric wires of dangerously high voltage to be insulated. Memphis first pleaded the general issue. Then, after motion, filed special pleas which, as amended, denied it failed to use reasonable and ordinary care in the construction, maintenance and operation of the equipment, so that the premises were absolutely safe for children playing thereon; denied knowledge that children of tender years played on the lot to the extent it had become a playground for children; claimed Thomas was a trespasser upon their property; that he and his mother were guilty of contributory negligence. By special plea Memphis alleged Ordinance sec. 918 had been repealed by Ordinance 752 (sec. 2), and defendants pleaded and relied on this ordinance as a defense. This ordinance purported to repeal sec. 918 and substitute therefor a new section, 915, providing that all poles, lines and conduits authorized by the chapter should be installed and main[263]*263tained in accordance with, applicable provisions of tbe National Electrical Safety Code “as it is now written or as it may be revised or amended in tbe future. * * *”

Memphis also pleaded specially that tbe transformer bank installation was constructed and maintained so as to make it virtually physically impossible for a child of tender years to climb said structure, and that it was under no obligation to fence in the area containing the electrical installation or to post any warnings. It denied it knew or with reasonable care could have known that children could climb upon the transformer bank so as to be in danger, and denied that children had climbed there before Thomas did. It alleged by another special plea that an intervening cause relieved it of liability, in that unknown persons had placed a trailer adjacent to the transformer bank so it not only trespassed on Memphis’ property but was so located as to “enable children who might play in the area to negotiate the structure and ascend to any ama of danger”.

Summarizing, Memphis defended on the grounds (1) it had not been guilty of any negligence because it had constructed and maintained the transformer bank in the safest maimer possible and so as not to be climbable by children; (2) that the lot was not a playground, and it had no knowledge of facts charging it with responsibility or duty to Thomas and his mother under the playground doctrine; (3) that Thomas was a trespasser, particularly when he climbed upon the transformer bank platform, and so could not recover as Memphis had not entrapped him or otherwise wilfully or purposefully or wantonly injured him; (4) that the construction and maintenance of the transformer bank was in accord with generally accepted principles and practices with respect to such [264]*264installations; (5) and that the construction and maintenance of the transformer installation conformed to City-Ordinance 752, sec. 2, of the City of Memphis, providing for poles, lines and conduits to he installed and maintained according to the National Electrical Safety Code as written or as amended in the future.

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Cite This Page — Counsel Stack

Bluebook (online)
426 S.W.2d 182, 221 Tenn. 258, 25 McCanless 258, 1968 Tenn. LEXIS 461, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hay-ex-rel-hay-v-memphis-light-gas-water-division-tenn-1968.