Smithbower v. Southwest Central Rural Electric Cooperative, Inc.

542 A.2d 140, 374 Pa. Super. 46, 1988 Pa. Super. LEXIS 1729
CourtSuperior Court of Pennsylvania
DecidedMay 25, 1988
DocketNo. 1230
StatusPublished
Cited by4 cases

This text of 542 A.2d 140 (Smithbower v. Southwest Central Rural Electric Cooperative, Inc.) is published on Counsel Stack Legal Research, covering Superior Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Smithbower v. Southwest Central Rural Electric Cooperative, Inc., 542 A.2d 140, 374 Pa. Super. 46, 1988 Pa. Super. LEXIS 1729 (Pa. Ct. App. 1988).

Opinion

DEL SOLE, Judge:

This is an appeal from Judgment entered August 27, 1987, in the Court of Common Pleas of Cambria County, Civil Division.1 We affirm.

The instant case was filed by and on behalf of the estates and the next of kin of Timothy W. Smithbower, George A. Smithbower and George J. Boland, who were electrocuted and died when a portable grain auger (elevator) which they were moving came into contact with a high voltage overhead distribution power line. The accident occurred September 21, 1982, at the Robert C. Varner farm located in East Carroll Township, Cambria County, Pennsylvania.

[49]*49Appellants filed suit against: Southwest Central Rural Electric Cooperative, (hereinafter referred to as “Southwest Central”), whose distribution line the grain auger touched; Pennsylvania Electric Co., (hereinafter referred to as “Pennsylvania Electric”), which sold the electricity to Southwest Central; and Cresson Feed Mill, Inc., t/d/b/a Hines Equipment, the company which sold the auger to Robert Varner. New Idea Farm Equipment, a Division of AVCO Corporation, and Speed King Manufacturing Co., distributor and manufacturer of the auger, were later joined in the suit as additional defendants.

Pennsylvania Electric filed a motion for summary judgment which was granted. This appeal followed.

The bases of liability asserted against Pennsylvania Electric are: (1) absolute liability, Restatement (Second) of Torts §§ 519, 520 (1977); (2) strict liability in tort, Restatement (Second) of Torts § 402 A (1965); and (3) negligence.

Summary judgment may be granted under Pa.R.C.P. 1035(b) which provides, in pertinent part:

The judgment sought shall be rendered if the pleadings, depositions, answer to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party in entitled to a judgment as a matter of law.

See also Ferguson v. King, 362 Pa.Super. 543, 524 A.2d 1372 (1987).

In the court’s determination of whether a motion for summary judgment should be granted, the following principles have application:

The moving party bears the burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Thompson Coal Company v. Pike Coal Company, 488 Pa. 198, 412 A.2d 466 (1979); Weiss v. Keystone Mack Sales Inc., 310 Pa.Super. 425, 456 A.2d 1009 (1983). In determining whether the moving party has met this burden, the court must examine the record in the light most favorable to [50]*50the non-moving party, giving that party the benefit of all reasonable inferences. Thompson Coal Company v. Pike Coal Company, supra; Schacter v. Albert, 212 Pa.Super. 58, 239 A.2d 841 (1968). All doubts as to the existence of a genuine issue of material fact must be resolved against the moving party. Thompson Coal Company v. Pike Coal Company, supra; Breslin v. Ridarelli, 308 Pa.Super. 179, 454 A.2d 80 (1982). Summary judgment should be granted only in the clearest case, where the right is clear and free from doubt. Thompson Coal Company v. Pike Coal Co., supra; Weiss v. Keystone Mack Sales, Inc., supra.

Bertani v. Beck, 330 Pa.Super. 248, 251-52, 479 A.2d 534, 535-36 (1984). See also, Ferguson v. King, supra.

Initially, Appellant contends that the supplying as well as the transmission of high voltage electric current is an abnormally dangerous activity which exposes Pennsylvania Electric, the supplier of electrical current, to strict liability for harm therefrom under Restatement (Second) of Torts §§ 519-520.

Restatement (Second) of Torts §§ 519-520 provides:
(1) One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.
(2) This strict liability is limited to the kind of harm, the possibility of which makes the activity abnormally dangerous.
Section 520. Abnormally Dangerous Activities In determining whether an activity is abnormally dangerous, the following factors are to be considered:
(a) existence of high degree of risk of some harm to the person, land or chattels of others;
(b) likelihood that the harm that results from it will be great;
(c) inability to eliminate the risk by the exercise of reasonable care;
[51]*51(d) extent to which the activity is not a matter of common usage;
(e) inappropriateness of the activity to the place where it is carried on; and
(f) extent to which its value to the community is outweighed by its dangerous attributes.

Appellate courts in Pennsylvania have not addressed the issue of whether the sale of electricity at an unmarketable voltage constitutes an abnormally dangerous activity. We find no Pennsylvania case law which extends liability arising from abnormally dangerous activities to electricity.

Thus, we look to our sister states for guidance and find that the courts have consistently held that the use and maintenance of high voltage electrical transmission lines by electric companies does not constitute an abnormally dangerous activity. Clearly, most of the courts rejected the imposition of absolute liability against an electric company. See Nelson v. Commonwealth Edison Co., 124 Ill.App.3d 655, 80 Ill.Dec. 401, 465 N.E.2d 513 (1984). (Plaintiff injured when touching a 7,200 volt transmission line. Electric suppliers not strictly liable since electricity necessary for existence). New Meadows Holding Co. v. Washington Water Power Co., 34 Wash.App. 25, 659 P.2d 1113 (1983), aff’d 102 Wash.2d 495, 697 P.2d 212 (1984). (Decedent came into contact with defendant utility’s uninsulated power line. Court found that activity did not constitute abnormal activity and that that value to the community outweighed the danger present). Hedges v. Public Service Co. of Indiana, 396 N.E.2d 933 (Ind.App.1979) (Injuries sustained as the result of coming in contact with high voltage transmission wires. Not strictly liable as abnormally dangerous activity). Wirth v. Mayrath Industries, Inc., 278 N.W.2d 789

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542 A.2d 140, 374 Pa. Super. 46, 1988 Pa. Super. LEXIS 1729, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smithbower-v-southwest-central-rural-electric-cooperative-inc-pasuperct-1988.