Schultz v. Consumers Power Co.

506 N.W.2d 175, 443 Mich. 445

• Court: Michigan Supreme Court
• Decided: August 31, 1993
• Docket: 92313, (Calendar No. 11)
• Status: Published

Opinions

Mallett, J.

In this wrongful death action brought by Alice Schultz, personal representative of the estate of Duane Schultz, we granted leave to determine whether defendant Consumers Power Company owed a duty of care to Duane Schultz to reasonably inspect, repair, and install its electric conductors. The Court of Appeals concluded, as a matter of law, that defendant owed no such duty. We reverse.

I

On July 13, 1983, the decedent, Duane Schultz, was electrocuted while assisting a friend, Keith Osmond, paint his house in Merrill, Michigan. The fatal electric current emanated from defendant’s medium-voltage wire, installed in approximately 1937. The line contained two wires, one neutral and one uninsulated¹ primary wire carrying a current of 4,800 volts. The primary wire was situated roughly fifteen feet, six inches from the house at a height of twenty-four feet.

The two men completed most of the painting from a moveable scaffold. However, to reach the peak of the house, they ascended a twenty-seven foot aluminum extension ladder. Once the peak was painted, Mr. Osmond began lowering the ladder. He testified that he pulled the ladder away from the house and, as it stood vertically, the decedent grabbed the ladder from the other side. At that instant, "there was a brilliant flash,” and Mr. Schultz was electrocuted. Mr. Osmond, who survived, denied that the ladder contacted the wire.

Plaintiff filed suit, alleging that Consumers Power negligently failed to inspect and repair the wire that fatally injured the decedent. Additionally, plaintiff claimed that Consumers Power negligently installed the wire dangerously close to the Osmond residence. She asserted that the frayed wire allowed the electric current to "arc”² from the wire to the nearby ladder. A jury found defendant negligent and awarded plaintiff $750,000. The jury concluded that plaintiff’s decedent was not comparatively negligent.

The Court of Appeals reversed, ruling as a matter of law that plaintiff failed to establish that defendant owed the decedent a duty of care. The Court characterized the accident as a "fortuitous circumstance, not a contingency reasonably anticipated.” Unpublished opinion per curiam, decided May 22, 1991 (Docket No. 118323), p 2. We granted leave to appeal.³

II

Generally, negligence is conduct involving an unreasonable risk of harm. The requisite elements of a negligence cause of action are that the defendant owed a legal duty to the plaintiff, that the defendant breached or violated the legal duty, that the plaintiff suffered damages, and that the breach was a proximate cause of the damages suffered. Roulo v Automobile Club of Michigan, 386 Mich 324; 192 NW2d 237 (1971). In the present case, we are only required to determine whether defendant owed a duty to plaintiff’s decedent. The duty element questions whether an actor has a legal obligation "to so govern his actions as not to unreasonably endanger the person or property of others.” Clark v Dalman, 379 Mich 251, 261; 150 NW2d 755 (1967). As Prosser & Keeton wrote:

In other words, "duty” is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same — to conform to the legal standard of reasonable conduct in the light of the apparent risk. [Prosser & Keeton, Torts (5th ed), § 53, p 356.]

In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk. Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992). Most importantly,⁴ for a duty to arise there must exist a sufficient relationship between the plaintiff and the defendant. As this Court stated in Samson v Saginaw Professional Bldg, Inc, 393 Mich 393, 406; 224 NW2d 843 (1975):

[T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law Usually refers to as a duty on the part of the actor.

Clearly, the relationship between the utility company and the decedent was sufficient to impose a duty under the circumstances. It is well established that those who undertake particular activities or enter into special relationships assume a distinctive duty to procure knowledge and experience regarding that activity, person, or thing.⁵ For example, a landlord must inspect a premises to keep it in a reasonably safe condition. Samson, supra; Lipsitz v Schechter, 377 Mich 685; 142 NW2d 1 (1966); 2 Restatement Torts, 2d, § 360, p 250. Physicians must keep reasonably abreast of current advances in their field. Koch v Gorrilla, 552 F2d 1170 (CA 6, 1977). Manufacturers must diligently inspect their products to discover lurking dangers. Livesley v Continental Motors Corp, 331 Mich 434; 49 NW2d 365 (1951); 2 Restatement Torts, 2d, comment, § 395, pp 326-332. Lastly, a carrier owes to its passengers the duty of discovering all detectable defects. Trent v Pontiac Transportation Co, Inc, 281 Mich 586; 275 NW 501 (1937).

Similarly, compelling reasons mandate that a company that maintains and employs energized power lines must exercise reasonable care to reduce potential hazards as far as practicable. First, electrical energy possesses inherently dangerous properties. Second, electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity. Lastly, although a reasonable person can be charged with the knowledge of certain fundamental facts and laws of nature that are part of the universal human experience, such as the dangerous properties of electricity, Koehler v Detroit Edison Co, 383 Mich 224, 231; 174 NW2d 827 (1970); Prosser & Keeton, supra, § 32, pp 182-184; 3 Harper, James & Gray, Torts (2d ed), § 16.5, pp 405-408, it is well settled that electricity possesses inherently dangerous properties requiring expertise in dealing with its phenomena. Therefore, pursuant to its duty, a power company has an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.

Another important variable in determining whether defendant owed a duty is foreseeability— "whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim . . . Moning v Alfono, 400 Mich 425, 439; 254 NW2d 759 (1977). In Samson, supra, this Court further explained the foreseeability element:

Foreseeability . . . depends upon whether or not a reasonable man could anticipate that a given event might occur under certain conditions. But the mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act. [Id. at 406.]

To paraphrase Samson, a reasonable person could certainly anticipate that a painter could be electrocuted if his aluminum ladder came close to, or touched, a pitted, corroded and frayed electric wire.⁶ Furthermore, a reasonable person could confidently conclude that this event would cause serious injury or death to the painter.

Those engaged in transmitting electricity are bound to anticipate ordinary use of the area surrounding the lines and to appropriately safeguard the attendant risks. 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.⁷ Here, Consumers Power should have realized that homeowners generally maintain their homes. This may include washing windows, cleaning troughs, repairing the roof, cleaning gutters, and, certainly, painting. Considering the proximity of the uninsulated primary wire to the house (roughly fifteen horizontal feet and twenty-four vertical feet from the ground), it was foreseeable that someone making repairs could be injured by a dilapidated wire. In fact, Consumers Power’s alleged failure to conduct routine inspections of the wires, or conducting such inspections in a careless or deficient manner, made it reasonably foreseeable that the company’s failure to discover or repair the damaged wires could result in injury or death to persons using an aluminum extension ladder in proximity to the wire.⁸ Having found a sufficient relationship and a foreseeable risk of harm, it would be contrary to the rules and principles previously announced by this Court to hold that Consumers Power owed decedent no duty to properly inspect and maintain its wires so as to reasonably safeguard against injury or death.⁹

Where service wires erected and maintained by an electric utility company carry a powerful electric current, so that persons coming into contact with or proximity to them are likely to suffer serious injury or death, the company must exercise reasonable care to protect the public from danger. The degree of care required is that used by prudent persons in the industry, under like conditions and proportionate to the dangers involved, to guard against reasonably foreseeable or anticipated contingencies. Laney v Consumers Power Co, 418 Mich 180, 186; 341 NW2d 106 (1983). Electric companies must exercise ordinary care to guarantee that equipment is kept in a reasonably safe condition.¹⁰ Although we do not follow a rule of absolute liability, the defendant’s duties to inspect and repair involve more than merely remedying defective conditions actually brought to its attention.

Our conclusion that utility companies must reasonably inspect and repair their electric lines complies with the decisions of foreign jurisdictions.¹¹ Miner v Long Island Lighting Co, 40 NY2d 372; 353 NE2d 805 (1976), is representative of courts’ treatment of the issue. There, the plaintiff, while preparing to trim an oak tree, inadvertently contacted a 7,620-volt uninsulated electric wire owned and maintained by the defendant. A jury rendered verdicts in favor of the plaintiff. The Appellate Division reversed the judgment, and dismissed the complaint on the ground that the plaintiff failed to establish a breach of duty. In holding that the power company had an affirmative duty to exercise reasonable care in the operation and maintenance of its power lines, the New York Court of Appeals reversed, emphasizing a number of factors. First, the court looked at the proximity and accessibility of the power lines to the public. The court noted that "where high-voltage lines were strung between closely spaced private residences, the risk to be foreseen was of the highest order; thus, the corresponding duty devolving upon the power company must be considered equally great.” Id. at 379. Second, neither the condition nor the location of the wires had been inspected in over thirty years, "thereby leaving a lethal instrumentality in an area where it could, and of course did, cause enormous harm . . . .” Id. at 380. Accordingly, the New York Court of Appeals held that the Appellate Division erroneously dismissed the complaint.¹²

III

Defendant further claims that it was not negligent because the location of the power lines exceeded the clearance requirements published in National Electric Safety Code (nesc) Table 234-4, which requires a three-foot horizontal clearance between power lines and adjacent buildings.¹³ It is uncontroverted that in the present case the placement of the wires exceeded the guidelines five-fold. Defendant argues that because the nesc guidelines delineate the appropriate standards for the design, maintenance, and operation of electric conductors, conformity with the standards proscribes negligence as a matter of law. While we agree with defendant that custom and industry practices are relevant to the issue of due care, they are not dispositive with respect to duty.

Compliance with the nesc or an industry-wide standard is not an absolute defense to a claim of negligence. While it may be evidence of due care, conformity with industry standards is not conclusive on the question of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances. Owens v Allis-Chalmers Corp, 414 Mich 413, 422-423; 326 NW2d 372 (1982); 2 Restatement Torts, 2d, § 295A, p 62. 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. If the plaintiff can convince a jury that a reasonably prudent company would have taken auxiliary measures beyond those required by industry standards, then the jury is clearly at liberty to find that the defendant breached its duty, regardless of the industry’s guidelines. As the Supreme Court of Oklahoma has explained:

"Although compliance with such safety requirement [sic] does not of itself establish that the defendant company was free from negligence inasmuch as such a regulation is a minimum requirement to conform with the dictates of reasonable care, apart from unusual conditions the regulation stands as a reasonable guide in measuring due care.”

Assuming that this is the standard, it is a minimum standard only and plaintiff must have the opportunity to show non-compliance or that unusual circumstances do exist requiring [a higher standard of care.] [Rotramel v Public Service Co, 546 P2d 1015, 1017-1018 (Okla, 1975), partially quoting Rudd v Public Service Co of Oklahoma, 126 F Supp 722 (ND Okla, 1954).]

Second, by its express language, the nesc guidelines set only minimum safety standards. The introduction to the nesc provides:

The purpose of these rules is the practical safeguarding of persons during the installation, operation, or maintenance of electric supply and communication lines and their associated equipment. They contain minimum provisions considered necessary for the safety of employees and the public. They are not intended as a design specification or an instruction manual. [Emphasis added.][¹⁴]

Whether a company acted negligently, although it complied with industry standards or customs, is determined by the trier of fact under proper instructions by the court. Because it is not the province of this Court, we do not resolve the question whether defendant used reasonable care when it installed the wires roughly fifteen feet, six inches from the Osmond residence. The evidence presented at trial supports the jury’s conclusion that Consumers Power acted negligently in this case. We conclude, however, that a power company has a duty to reasonably install its power lines so as to safeguard the public from foreseeable injuries.

IV

Accordingly, we reverse the Court of Appeals decision and find that Consumers Power has a duty to reasonably protect members of the general public from any foreseeable danger from its power lines. We reinstate the trial court’s verdict and remand the case to the Court of Appeals to resolve the issues previously raised, but not addressed by this Court.

Levin, Brickley, and Boyle, JJ., concurred with Mallett, J.

1 Technically, according to defendant, the air space surrounding a transmission line serves as insulation because electricity cannot conduct through air. Nonetheless, the wires at issue were not protected by any tangible insulating cover.

2 There was considerable disagreement at trial about whether the ladder physically contacted the wire or whether the electric charge "arced.” Arcing is a scientifically proven and accepted phenomenon that allows an electric impulse to transmit through the air to another conductive object. It is often caused by pollution that breaks down air molecules. Plaintiff’s expert testified that under ideal circumstances, nobody knows how far electricity can arc. He further testified that in ionized and moist air, like that on the day of the accident, electricity arcs farther than in other conditions. Additionally, expert testimony was presented that the ladder could not have touched the line because there were no marks on the ladder indicative of such physical contact.

Plaintiff did not, however, contend that the arc was thrown between three and seven feet as the Court of Appeals suggests. Rather, the evidence simply showed that the base of the ladder was three to seven feet from the power line. The exact distance the top of the ladder was from the line is, of course, unknown. However, defendant’s expert testified that if a twenty-seven foot ladder moved six inches at the bottom, it would move 32.4 inches at the top. Nevertheless, this factual dispute was properly presented to the jury.

3 440 Mich 893 (1992).

4 See Buczkowski, supra, for a more thorough discussion of the variables examined when determining whether defendant owed a duty to the plaintiff.

5 See, generally, 3 Harper, James & Gray, Torts (2d ed), § 16.5, pp 397-415; Levi v Southwest Louisiana Electric Membership Cooperative, 542 So 2d 1081 (La, 1989).

6 Plaintiff’s expert testified that because of the wire’s age, it was "pitted, corroded and broken.”

7 A plaintiff need not establish that the mechanism of injury was foreseeable or anticipated in specific detail. It is only necessary that the evidence establishes that some injury to the plaintiff was foreseeable or to be anticipated. See Clumfoot v St Clair Tunnel Co, 221 Mich 113; 190 NW 759 (1922); LaPointe v Chevrette, 264 Mich 482; 250 NW 272 (1933).

8 Although we do not judge its reasonableness, in its answer to plaintiff’s interrogatories, defendant stated that it inspected the wires in March 1983, four months before Mr. Schultz’ fatal injury.

9 Without expressly so holding, this Court has implicitly ruled that utility companies owe a general duty to the public to maintain equipment in a reasonably safe condition. Most recently, in Laney v Consumers Power Co, 418 Mich 180; 341 NW2d 106 (1983), we held that the applicable standard of care of a public utility that maintains electric power lines is "one of reasonable care measured by what a reasonably careful person or company engaged in maintaining electric power lines would do under the same circumstances.” Id. at 186. In order to have addressed the appropriate standard of care, we first implicitly found that the utility company owed decedent a duty of care.

10 Long ago this Court held that utility companies owed the public "the duty of safeguarding by reasonable inspection and supervision its wire . . . and this duty was not met by a showing of suitable installation alone . . . .” Mueller v Citizens Telephone Co, 230 Mich 173, 177; 203 NW 129 (1925). The Court further explained that "[r]easonable supervision to maintain the integrity of the wire was required. The purpose of inspection is to discover need of repair and by repair prevent injury to persons and damage to property, and the duty is inclusive of wanton interference by human agency as well as wear and interference by the elements.” Id. at 178. See also Weissert v Escanaba, 298 Mich 443; 299 NW 139 (1941).

11 See, e.g., Black v Public Service Electric & Gas Co, 56 NJ 63; 265 A2d 129 (1970); Aguirre v Los Angeles, 46 Cal 2d 841; 299 P2d 862 (1956); Vieths v Ripley, 295 NW2d 659 (Minn, 1980); Rich Mountain Electric Cooperative, Inc v Revels, 311 Ark 1; 841 SW2d 151 (1992).

12 Although the Court of Appeals may have erroneously consolidated independent elements of a negligence cause of action, it nonetheless held that a power company has an affirmative duty to reasonably operate and maintain its power lines. By discussing Miner, we do not intend to eradicate the distinct elements of negligence. See Buczkowski, supra.

13 See also Michigan Public Service Comm, Order No. 1679.

14 The mpsc similarly states:

The rules state the minimum requirements for spacings, clearances, and strength of construction. More ample soacings and clearances or greater strength of construction may be provided if other requirements are not neglected in so doing.