66 N.C. App. 239 | N.C. Ct. App. | 1984
Lead Opinion
In his complaint, plaintiff has asserted two theories of negligence, first that defendant placed its poles too close to highway 1-85 for safety of highway users, and second, that because of defendant’s knowledge that its wires at this 1-85 crossing had been previously knocked down by lightning, the overhead wires should have been removed and placed under the highway.
In his brief, plaintiff has not argued his first theory. It deserves scant consideration. Known laws of physics dictate that
Plaintiffs second theory must be responded to on principles of foreseeability. As in every negligence case, the threshold questions are duty and proximate cause. At the threshold of duty is foreseeability. If under the circumstances of this case, defendant could have reasonably foreseen that placing its wires over 1-85 might result in harm to others, it would be answerable for plaintiffs injury. Plaintiff contends that because lightning had struck these same wires previously and caused them to fall across the highway, defendant could have reasonably foreseen that it would happen again. We cannot agree. While it is clear that defendant could reasonably foresee that lightning could strike its pole lines from time to time, no one can reasonably foresee when or where lightning may strike any particular object. To agree with plaintiff would open a very expensive door. We can take judicial notice that electric lines suspended from poles may be damaged by at least four natural phenomenon over which electric utilities have no control: lightning, wind, ice, and snow. The only way to insure that overhead electric lines crossing public streets or highways might not fall down due to the forces of such natural phenomenon would be to place all such lines underground. The cost of such an undertaking would be so large and hence carry with it such considerations of public policy that it would be entirely inappropriate to establish judicially a precedent for such a requirement.
Because defendant could not have reasonably foreseen the events which led to the falling of its wires across 1-85 and plaintiffs injury, defendant was under no duty to place those wires under the highway, and plaintiff was therefore entitled to judgment as a matter of law.
We carefully note that under the circumstances of this case, we do not reach the question of the duty of an electric utility after notice to exercise due care to protect others from the harm
While we support and adhere to the general rule that summary judgment should rarely be granted in negligence cases, see Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979) and Williams v. Carolina Power & Light Co., 296 N.C. 400, 250 S.E. 2d 255 (1979), each case must be decided on its own merits. In this case, the materials before the trial court showed that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law, conclusively establishing the lack of actionable negligence on the part of defendant.
Affirmed.
Concurrence Opinion
concurring in the result.
Though I agree that plaintiffs case was properly dismissed, I do not agree that defendant could not reasonably have foreseen the events leading to its wires falling across the highway and injuring plaintiff. Every year winds blow, lightning strikes, storms come, and power lines in different parts of the state fall across streets and highways endangering or injuring travelers; and, in my view, it required no special powers of prevision on defendant’s part to anticipate that the wires involved here might also be affected by one natural force or another and fall across the highway and injure somebody. But every hazard that is foreseeable is not necessarily avoidable through the exercise of reasonable care, and the first element of actionable negligence is a lack of due care. 65 C.J.S. Negligence § 2(3). Plaintiffs case was correctly dismissed, I think, because defendant presented plenary evidence to the effect that it exercised due care in arranging, locating, and maintaining its poles and wires, whereas, plaintiff presented no evidence at all to the contrary. Plaintiffs argument that the wires should have been placed underground is no substitute for evidence to that effect, since we do not know and the record does not indicate either that that was the better course or what it would have involved.
