Greely, T. v. West Penn Power
156 A.3d 276
| Pa. Super. Ct. | 2017Background
- Ralph Greely, a U.S. Utility subcontractor installing Verizon telecommunications cable on West Penn Power poles, was electrocuted when the messenger cable arced to an energized West Penn conductor.
- The span at the incident site was unusually long (~400 ft) with differing pole elevations, creating atypical sag and visibility problems. West Penn’s normal spans are ~125–150 ft.
- West Penn and Verizon attended coordination meetings and walked the site; a required permit was not submitted before the work (it was submitted after the accident).
- Plaintiff (Tammy Greely, administratrix) sued West Penn (and Verizon) alleging West Penn breached duties including failing to de-energize lines, ensure sufficient clearance, follow joint-use agreements and the NESC, and warn/stop unsafe work.
- West Penn moved for summary judgment arguing no duty was owed to Greely; the trial court granted summary judgment for West Penn after applying Althaus. Verizon later settled; plaintiff appealed.
- The Superior Court reversed, holding (1) longstanding Pennsylvania law recognizes a high duty by electricity suppliers to persons lawfully near wires and (2) the trial court erred by failing to view evidence (including plaintiff’s expert report) in the light most favorable to the nonmoving party.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether West Penn owed a duty of care to Greely, a telecommunications worker lawfully near energized lines | Electric suppliers owe the highest practicable degree of care to anyone lawfully in proximity, including telecom workers; Densler and other PA precedent apply | No duty existed under the facts; Densler is distinguishable (different relationship/factual context) | Duty exists as a matter of Pennsylvania law to persons lawfully in proximity; trial court erred in finding no duty |
| Whether the trial court properly applied Althaus policy factors to create/deny a duty | Existing common-law duty negates need for full Althaus public-policy test; Althaus unnecessary here | Althaus factors control and support no duty in this novel factual setting | Court: Althaus analysis unnecessary; longstanding duty controls; reliance on Althaus was error |
| Whether the trial court properly weighed and discounted plaintiff’s expert report at summary judgment | Expert’s report raised genuine issues (NESC violations, joint-use agreement breaches, peculiar danger from span) and must be credited for summary-judgment purposes | West Penn disputed expert conclusions and argued causation/facts favored defendant | Trial court improperly ignored/devalued the expert; credibility/weight are for the jury; evidence must be viewed in nonmoving party’s favor |
| Whether the trial court erred by relying on out-of-state (Indiana) law limiting duty | Pennsylvania law controls and recognizes high duty for suppliers to the public and workers near lines | Reliance on other jurisdictions supports limiting duty scope | Use of Indiana law was unnecessary and unwarranted; PA precedent governs and supports recognizing a duty |
Key Cases Cited
- Densler v. Metropolitan Edison Co., 345 A.2d 758 (Pa. Super. 1975) (class of persons lawfully in proximity to wires includes maintenance employees working on/around poles)
- Colloi v. Philadelphia Elec. Co., 481 A.2d 616 (Pa. Super. 1984) (supplier of electric current must use the very highest degree of care practicable toward those lawfully near its wires)
- Karam v. Pennsylvania Power & Light Co., 208 A.2d 876 (Pa. Super. 1965) (one maintaining high-voltage lines must exercise the highest degree of care practicable)
- Alderwoods (Pennsylvania), Inc. v. Duquesne Light Co., 106 A.3d 27 (Pa. 2014) (Althaus factors are for creating new duties; existing broad common-law duties need not undergo full Althaus analysis)
- Summers v. Certainteed Corp., 997 A.2d 1152 (Pa. 2010) (at summary judgment, courts must defer to expert conclusions and view all reasonable inferences in the nonmoving party’s favor)