*1 1 v Cо Consumers Power COMPANY POWER CASE CONSUMERS 2). 8, (Calendar Decided Argued 2000 No. March No. 112707. Docket July 26, 2000. ¿id dairy farmers, brought Case, in the an action Diana Kenneth Company, alleging Barry against Power Circmt Court produc- depressed wires milk from Consumers’ that tri¿ McCauley, J., court, Patrick H. farm. The tion on their and, inherently dangerous jury instructed inspect therefore, elec- to and its the defendant was tric¿ plaintiffs. jury The Court returned an award for lines. The C.J., Appeals, concur- JJ. Fitzgerald, (Corrigan, Doctoroff 191733). App (1998) (Docket ring), Con- Mich 547 No. affirmed. 230 appe¿s. sumers Young, joined by opinion by Chief Justice Weaver, In an Justice Supreme Court held-. Taylor and Justices Markman, ¿ways care, gener¿ and it is care is The standard of jury in a the defendant’s conduct to determine whether for case, given in this that standard. The instruction case fell below repmr, improper, imposed was an which was not harmless. and the error plmntiffs all the elements of 1. Instructions should include materi¿ issues, defenses, if or theories and should not omit claims pieceme¿ supports They must not be extracted the evidence them. imperfect, error, instruc- Even if somewhat to establish however. revers¿ if, b¿ance, requiring the theo- on tions do not create error fairly adequately parties applicable law are of the and the ries Revers¿ instruetion¿ jury. presented will error obtmn to the only be inconsistent with substantial where fmlure to do so would justice. jury specific Ordinarily, determine the standard 2. it is for the given in a exercised a defendant care that should have been may specific case, if ¿though standard of care the court decide the wo¿d persons agree opinion or there all reasonable it is of the policy. judicially public overriding legislatively In declared is an tri¿ case, instruct the that it was bound to court concluded this jury Power in Schultz v Consumers under the standard articulated disputed instruction was intended Mich 445 determining aid the whether the defendant breached its plaintiffs Schultz, to the to exercise reasonable care. however represents exception general a limited rule that the specific determines the standard of care owed a defendant ain particular case, stray voltage simply *2 qualify and does not for such Thus, inspect repair unusual treatment. the to and that inapplicable was articulated in stray-voltage Schultz is in cases. Rather, jury precise required must determine the actions to meet stray-voltage the reasonable care standard in cases. Vacated and remanded. joined by Kelly, dissenting, Justice Justice stated that Cavanagh, requirement providers electricity reasonably inspect the of and repair wires and other instrumentalities in order to discover and Schultz, applicable hazards and defects in articulated is stray-voltage cases. Although presented danger by stray the voltage nature of the danger presented by diffеrent than the nature of high-voltage the electricity, type damage jus- difference in the of caused does not tify departure Stray from voltage cases, the Schultz standard. like involving high-voltage electricity, cases involve harms caused properties electricity. Regardless the of of whether the distribution high electricity through of currents of uninsulated wires in residen- neighborhoods might death, tial cause while the low currents stray voltage degree harm, involved in cases causes a lesser of the properties level electricity of harm caused doеs not alter the of the electricity requires special itself. The distribution of knowledge still dangerous commodity. about how to ques- direct and control a reasonableness, inspect tions of repair, of what it means to and and what interpretation constitutes a hazard or defect leave room for
by jury. case, presented In properly this all the critical issues were to and jury. decided applied The Schultz test should be and the jury’s upheld. Further, opportu- decision the defendant had a fair nity present arguments. its given, Under the Schultz instructions jury could have concluded that the detection required inspecting an repairing, unreasonable level of or that inspecting repairing purpose would remedying not serve the Thus, jury opportunity hazards and defects. had the to con- clude that the defendant was not its wires under the circumstances. part Justice took no in the decision of this case. Corrigan Co Case v Consumers Power Opinion the Court plaintiffs-appellees. W.Hable for the Martin (by Roger M. Judd, & L.L.P. Warner, Norcross Gibson), Jansen, R. and Lori L. William Clark, Brunner, E. co- A. Mikelonis and James David defendant-appellant. counsel, for the Curiae: Amicus VanderHaagen Michigan
David Farm Bureau. granted in this J. We leave case to address Young, proper applicable providers of standard of care cases. We conclude that always general standard of care is “reasonable and it is for the to determine whether the care,” given conduct in a case fell below that defendant’s standard. case,
In the trial court instructed the this *3 inherently dangerous and, therefore, that inspect was its elec- defendant imposed the instruction an obli- trical lines. Because improper. repair, gation Further, it was we cannot conclude that the error this case was Accordingly, judgment for harmless. we vacate the plaintiffs remand for a new trial. AND BACKGROUND
FACTS PROCEDURAL dairy farm- Plaintiffs Kenneth and Diana Case were plaintiffs during 1986, and 1980’s.In ers the 1970’s dairy buyout pro- government in a their cows sold plaintiffs, gram. According to the sale was induced pro- a of low milk stress, financial which was result plaintiffs bought In a new herd and 1993, duction. dairy Shortly buying farming. resumed after the new plaintiffs herd, production problems concluded that their earlier milk- by stray voltage,
were caused Company. and sued Consumers Power Stray voltagе (technically referred to neutrai-to as voltage, phenomenon earth is an electrical nev) causing can that sometimes livestock, affect de production dairy among creased milk cows, other problems. According parties, voltage to the is so Stray voltage low that humans cannot detect it.1 can stray voltage have different causes, and on a farm may by problem problem be caused a on the farm, problem in Consumers’ wires farm, off the or even property, neighbor on another customer’s such as ing procedure, fаrm.2 There is a sometimes referred “separating according to as the neutrals,” that, parties, will eliminate all off-farm sources. plaintiffs alleged stray voltage case,
In this depressed production milk on farm their until the separated, whereupon production neutrals were milk responded returned to normal. Defendant that it was negligent, plaintiffs’ milk-production not and that problems by stray voltage. were not caused After hearing stray regarding voltage evidence problems plaintiffs’ on farm, rendered an award plaintiffs, although plaintiffs also found partiеs agree voltage that humans cannot detect at issue, they terminology explain but use different that fact. While the parties specified range they have not involved, generally quantities refer to of less than three volts. 2 Indeed, argues exists even there where *4 problems system. are no with the acknowledge electrical Plaintiffs that always present. However, they nev is counter that if there were no problems system, with the would so be low cows that even not would be affected. Power Co 5 at Defendant filed partially (fifty-five percent). fault verdict, for judgment motions directed notwithstand trial, all of which verdict, and a new the trial ing appealed, court denied. Defendant and the Court of Appeals appli affirmed.3 We then defendant’s granted for appeal.4 cation leave to only Court issue before this concerns a instruction regarding the standard of care owed plaintiffs. objection,5 Consumers to Over Consumers’ court the trial instructed the as follows: duty It was the of the Defendant in connection with this ordinary safety occurrence to use care for the of the Plain- property. tiffs’ possesses energy
It is well settled electrical inher- ently dangerous properties requiring expertise dealing phenomena. Company with its Therefore Consumers Power duty reasonably inspect has a wires and other instrumentalities in order to discover and hazards Company, being engaged and defects. Consumers Power electricity, anticipate the transmission of is bound to ordi- nary surrounding use of the area the lines and to appropriately safeguard . . . an attendant risk. The test to determine whether was owed is not whether Con- Company anticipated particu- sumers Power should have injury resulted, lar act from which the but whether should probability injury might have foreseen the result from any activity premises business, on the done pleasure. work or Corrigan App 547; (1998). Judge Chief con- separately curred in the decision to affirm the trial court. dispute objected entirety Plaintiffs whether Consumers to the of this record, reviewing
instruction. After we conclude that Consumers objected whole, properly preserving instruction as this issue. 2.516(C). MCR *5 6 Opinion of the Court
STANDARD OF REVIEW
In
We review claims of instructional error de novo.
doing so, we examine the
instructions as a whole
requiring
to determine whether thеre is error
reversal.
The instructions should include all the elements of
plaintiff’s
claims and should not omit material
supports
issues, defenses, or theories if the evidence
piecemeal
them. Instructions must not be extracted
imperfect,
error. Even if somewhat
establish
requiring
if,
instructions do not create error
reversal
parties
appli-
balance,
on
the theories of the
and the
adequately
fairly presented
cable law are
jury.
Higgins,
46, 60;
Murdock v
454 Mich
NW2d
559
only
(1997).
639
We will
reverse for instructional
where
error
failure to do so would be inconsistent
justice.
2.613(A);
with substantial
MCR
Johnsоn v
(1985).
423 Mich
Corbet,
304;
ANALYSIS
prima
negligence,
To establish a
facie case of
prove
plaintiff
duty
(1)
must
four elements:
owed
plaintiff, (2)
the defendant to the
a breach of that
6
duty, (3)
(4) damages.
causation, and
Schultz v Con
445, 449;
sumers Power
443 Mich
For
in
was
electrocuted and died after an aluminum ladder he
using
was
сame too close to Consumers Power Com-
pany’s
recog-
4,800volt transmission lines. This Court
“electricity possesses inherently dangerous
nized that
properties”
utility companies pos-
and that “electric
expertise
phenomena
dealing
in
with
sess
electrical
electricity.”
delivering
and
Schultz at 451. Accord-
only
ingly,
held
electric
the Schultz Court
not
utility
duty
companies
owed
exercise
compa-
maintaining
wires,
care in
their
but that those
required
“reasonably inspect
and
nies are
and
in order to discover
wires
other instrumentalities
hazards
defects.” Id. at 451.8 The
Court
Schultz cited a number of cases in support
conclusion,
of its
all but one of which involved the
dangers
unintended contact with high-voltage elect
ricity.9
case,
In this
the trial court concluded that it
was bound to
consistently
instruct
with the
standard
in Schultz,
articulated
although
expressed
some reservation
doing
about
so.10
8 Although
analysis
“duty”
the Schultz Court couched its
in terms of
(“pursuant
duty, power company
reasonably
to its
has an
repair wires”),
actually
deciding
it is clear that the Court
was
specific
breaching
gen-
standard of care
in order to avoid
Thus,
Schultz,
eral standard of “reasonable care.”
the Court made the
very
Moning by blurring
mistake warned of in
the distinctions between
general
specific
Moning, supra
and the
standards of care.
at 438.
Laney
Co,
180;
See
v Consumers Power
418 Mich
341 NW2d
106(1983) (involving
death
electrocution after contact with an electric
power line);
Escanaba,
443;
Weissert v
(1941)
298 Mich
to follow the rule set forth the that I was not in position distinguish a to overrate and/or the Schultz case. v Power Co 9 “duty” inspection repair imposed of in protect against Schultz was intended to the likelihood injury Clearly, of serious or death. Id. at 453-454. “rea represents sonable care the under circumstances” potential sliding injury, scale. The more severe the person expend the more will resources try injury. prevent Similarly, greater to the injury result, the likelihood that a severe will the greater lengths person go pre the a reasonable will principle widely recognized. vent it. This principle beyond mind,
With this we think it dis- pute dangers high-voltage (fire, that the of among them) electrocution, and death are different in dangers kind, age. severe, and mоre than the of volt- represents very exception Schultz limited general specific the rule that the determines the particular standard of care owed defendant in a stray voltage simply qualify case, and does not Thus, that unusual treatment. we that the conclude that was articulated inapplicable stray-voltage in Schultz is cases. Rather, we conclude that a must the determine Corrigan Appeals concurrence, Judge In her Court of Chief shared the disputed regarding App trial court’s concerns the instruction. 230 Mich Corrigan explained below, Judge 563-566. As further Chief was correct in noting scope vary of the should with the nature of the “[t]he risk.” Id. at 566. 451, Co, See Dembicer v Pawtucket Cabinet & Builders Finish 58 RI 455; (1937) (“The greater appreciable danger, greater A193 622 degree necessary ordinary care”); Wyrulec of care to constitute due or Co Schutt, 756, ordinary (Wyo, 1993) (“[W]hat 866 P2d constitutes care concept ordinary danger increases as the increases. The care accom- degree modates all circumstances so that the of care varies with the cir- 343, cumstances.”); 350; Webb v Southern Gas 27 Wis 2d Wisconsin effort, (1965) (“The degree caution, diligence person ordinary necessarily aof to reach or attain the standard of care degree varies with of hazard inherent under cir- cumstances”). *8 [July- precise required actions to meet care standard in stray-voltage cases. Supreme
As the United States Court recognized long ago:
There is no fixed standard the law which a court is arbitrarily say every enabled to case what conduct shall prudent, be considered reasonable and and what shall con- ordinary any care, stitute under and all circumstances. The “ordinary care,” prudence,” terms “reasonable and such like terms, applied men, as to the conduct and affairs of have a significance, arbitrarily relative and cannot be defined. may ordinary What may, be deemed care in one case under surroundings circumstances, different gross negli- be gence. policy relegated of the law has the determina- questions jury, proper tion of such to the under instructions province from special the court. It is their to note the cir- surroundings particular case, cumstances and of each say parties then whether the conduct of the in that case expected reasonable, prudent was such as would be men, under a similar state of affairs. Trunk R Co v [Grand Ives, 408, 417; 679; (1892).] US 12 S Ct L 36 Ed 485 Plaintiffs argue that, disputed even if the instruc- tion was erroneous, was harmless. Indeed, plain- as point tiffs out, most of the instructions read to the jury properly ordinary cited the care standard. How- ever, disputed specifically instruction defendant “inspect repair” prevent its lines to stray voltage. The instruction thus took from the questions one of the crucial before it: in light of the level of danger injury and likelihood of posed by stray voltage, what actions wаs defendant required to take prevent in order injury? such Put differently, present instructions failed to pri- one of Consumers’ mary defenses had no —that to discover and unknown volt- v Consumers Power Co Dissenting by Cavanagh, Opinion J. position age problems. The essence of Consumers’ *9 acceptable problems to wait for to be was that it was reported these cir- had to take action. Under before it the verdict and remand cumstances, we must reverse Gapske 648, 657- Hatch, 347 Mich for a new trial. 659; 81 NW2d337 suggest
By analysis do not intend to we our stray voltage requires ordinary regarding less сare repair, inspection and or that it than merely waiting problems requires to be more than for simply reported. acknowledge we that the Rather, before the basis of the evidence must decide on exactly was what actions defendant of this case. take under the circumstances judgment stated, we vacate the For the reasons plaintiffs for a new trial consistent with and remand opinion. this JJ., con- and C.J., Taylor
Weaver, Markman, J. curred with Young, majority adequately pin- I The J. dissent.
Cavanagh, points being erro- the issue as whether the trial court apрlicable neously standard instructed the on the p However, I Ante, of care in disagree cases. 3. majority’s that “the obli- with the conclusion repair gation that was articulated 445, 449; Power [v Schultz Consumers inapplicable stray-voltage (1993),] p disagree that a remand for Ante, cases.” 9. I further in this trial is warranted. All the critical issues new properly presented were to and decided case jury. affirm the decision of the Therefore, I would Appeals. Court of Dissenting Opinion Cavanagh, J. disputed jury instructions in this case sprang
from Schultz, Schultz. In a man was electrocuted while painting a house. He and his companion were moving metal ladder toward the house when it power came close to an uninsulated line near hanging proximity house. The of the ladder to the uninsu lated wire created an arc electricity that sent a cur rent of down the ladder and into the men. This Court held that, because of the special relation ship between the power decedent and the provider, power company had an affirmative to “rea sonably inspect wires and other instrumen talities in order to discover hazards and defeсts.” Id. special at 451. The relationship arose out of the fact that electricity has inherently dangerous *10 properties, and special expertise is required to deal phenomena with electrical delivery the of electricity. Id.1
1 explained: As Schultz Clearly, relationship utility company between the and the impose duty decedent was sufficient to under the circumstances. particular It is well established that those who undertake activities special relationships duty or enter into pro assume a distinctive knowledge experience regarding activity, cure person, thing. example, inspect premises keep For a landlord must it in reasonably Saginaw safe condition. Samson [v Professional
Bldg, Inc,
393;
(1975)];Lipsitz Schechter,
393 Mich
Stray involving high- voltage cases, like cases voltage electricity, involve harms caused electricity. appellant’s properties own brief appellant, point. According demonstrates this operate grounded “[a]ll utilities, included, safety power systems, principally distribution rea- Electricity always must return to its source to sons.” complete breaks, its circuit. If the “hot” wire the cur- ground will line into the rent flow down the nearest inherently Second, energy possesses dangerous properties. elec- cal utility expertise companies possess dealing tric with electrical phenomena delivering electricity. Lastly, although a reasonable person knowledge charged can with the of certain fundamental be part expe- facts and laws of nature that are of the universal human rience, dangerous properties electricity, such as the Koehler v 224, 231; (1970); Detroit Edison Pros- *11 ed)], 32, pp 182-184; Harper, (5th § Keeton James & ser & [Torts Gray, (2d 16.5, pp 405408, ed), § Torts it is well settled that elec- tricity possesses inherently properties requiring exper- dangerous duty, dealing phenomena. Therefore, pursuant tise in with its to its reasonably inspect power company has an repair wires instrumentalities in order to discover and and other at hazards and defects. [Schultz 450451.] Dissenting Opinion by Cavanagh, J. bypassing earth, the break until it can reconnect with point. ground neutral at some other wire also provides path voltage surges to earth for excessive lightning from strikes and other accidents. inherently dangerous properties Because of the of electricity, ground provided, these wires are and must reasonably inspected. be maintained and But for the safety ground measure of the wires, events such as lightning line breaks and strikes would have cata- strophic consequences. maintaining inspecting
Therefore, the neutral inextricably ground proper- wires is bound with those electricity causing ties of fires and electrocution, even thоugh, ordinarily, only carry the neutral wires neu- tral-to-earth is beneath the level of (nev) human detection.
Regardless high of whether the distribution of cur electricity through rents of uninsulated wires in resi neighborhoods might dential death, cause while the low currents involved in cases causes a degree lesser of harm, the level of harm caused does properties electricity not alter the of the itself. The electricity requires special distribution of still knowl edge dangerous about how to direct and control a commodity.2 example, utility For if worker were injured up utility climbing рole, might while be appropriate apply a different standard than in injury Schultz because the would be unrelated to the properties electricity. Conversely, properties give stray voltage injuries. itself rise to Here, the found that the Cases suffered the loss dairy nearly of an entire herd and two million dollars nSee 1. *12 Co Power Dissenting Cavanagh, Opinion J. negligence damages in deal- of defendant’s because in inherently properties dangerous ing of elec- with attempt majority’s agree tricity. to with the I cannot appropri- distinguish court Rather, the trial Sсhultz. stray ately applied action. Schultz to this electricity providers requirement that Schultz’s “reasonably repair inspect wires and other instru- and and hazards in to discover mentalities order stray voltage fairly applied in be and can defects” inspection might at Id. 451. While cases. frayed detecting in wires or uninsulated wires include might neighborhoods, not reasonableness residential encompass Similarly, power detecting stray voltage. stray voltage argue providers is also that could questions The of rea- a hazard nor a defect. neither “inspect repair,” and sonableness, what means to or defect” leave room what constitutes “a hazard by jury. interpretation liability argues that its should be The defendant degree proportioned according of risk involved. majority agree that the concerns are While I with the cases than electrocution different disagree render a cases, I that those differences inadequate. Under the Schultz-based instruction majority’s approach, be courts will left to deter- trial electricity acquires “dangerous” proper- when mine Schultz, hand takes note of thе fact ties. on other “inherently dangerous” properties, has inspection when to determine and allows the apply test, I would Schultz is reasonable. uphold jury’s decision. would it was unable to also The defendant asserts majority agrees. fully present arguments. Ante, The its majority pp agree if I with the Even were 10-11. 1 Mich Dissenting Opinion by Cavanagh, J.
that Schultz creates too high a standard for volt- I would age cases, disagree with the majority’s harm- lessness assessment. defendant a fair oppor- had tunity present its arguments. majority As the acknowledges, primary defendant’s argument only thаt it need act with reasonable care under the circumstances, and that it had no *13 repair its wires. Under the Schultz instructions given, could have concluded that the required detection an unreasonable level inspecting and repairing, or that inspecting and repairing would not purpose serve the of remedying hazards and Thus, defects. had opportunity to con- clude that the defendant was not to inspect its wires under the circumstances. I would affirm the decision of the Appeals. Court of
Kelly, J., concurred J. with Cavanagh, J., part took no in the decision of this Corrigan, case.