Groncki v. Detroit Edison Co.

v GRONCKI DETROIT EDISON COMPANY v

BOHNERT DETROIT EDISON COMPANY EDISON PARCHER DETROIT COMPANY Docket Gerald lines that resulted the ring), that the O’Brien, X, granted ant Court of endar Nos. Court Nos. appeals. moving and reversed 101954, against injuries Appeals, of Detroit Edison in Cheryl 11-13). came 102212, 102650, the Detroit Edison in an were Groncld Jansen, into Decided December in Edison’s unpublished opinion foreseeable injuries contact with the lines. The P.J., brought motion and to Gerald Groncld when a ladder he 103455. maintaining (Docket Company, alleging negligence M. X an action in the Argued Talbot, summary disposition. No. 1996. per certain overhead October 153538). curiam, X (White, court, Oakland 9, determining The defend- Francis X. X, concur- Circuit (Cal- The on Bohnert, Bohnert, Barbara as executrix estate of Wendell deceased, brought a similar in the Circuit action Monroe Court against Edison, Homes, Inc., others, Carrington arising Detroit and out of the electrocution of Bohnert at a Wendell home construction court, LaVoz, summary X, granted disposition site. The William F. P.J., Appeals, for the The defendants. Court of and Jansen Murphy, JX, part, part, and P. M. in in affirmed reversed and Meter, regarding proceedings remanded for further of fore- seeability unpublished opinion per (Docket an curiam No. 158314). appeal. The defendants Parcher, Jr., Parcher, Theodore R. and M. Yvonne for themselves and Parcher, minor, brought as next friend Amanda Mae also Lapeer Court, Edison, against similar action Circuit Detroit arising out of electrocution of Theodore at a construc- Parcher court, Clements, X, granted summary dispo- tion site. The Martin E. P.J., Appeals, sition for Edison. Detroit The Court of Connor, JX, affirmed, finding accident foreseeable Wahls Saad, (Docket 161576). plaintiffs appeal. No. separate opinions, Supreme Court held: protect Detroit Edison owed no or warn victims with to respect Carrington, lines. In Bohnert v to its remand is v Detroit with was foreseeable required whether the accident determine respect Carrington. scope owed stated that Brickley Chief Justice insulate, de-energize move, overhead companies electrical protect against harm. The test to power foreseeable lines is to company duty whether the was owed is not whether a determine injury anticipated particular the act from which the have should probability that resulted, have foreseen the it should but whether activity prem- on the injury might done from reasonable result applied pleasure. business, work, the test is to When or ises for protect duty part or warn cases, Edison to on the of no arose these the victims. imposition against in policy mitigates of a the also Public public’s policy for elec- issue is the need social

these cases. The relocate, impose insu- power a cost. To at a reasonable tric parties late, de-energize power construct lines whenever third or policy. power this To buildings interfere with near lines would request significant plaintiffs impose result in would may Further, passed it often to consumers. would be on cost that companies power impossible to move other for Edison and be moving away without them new construction lines from preexisting structures. closer correctly the award of sum- overturned Court of The liability Carrington gov- mary disposition Carrington. is The of (1974), Corp, Mich 83 which Funk v General Motors erned general part to assure of a contractor of the business held it to be coordinating supervisory steps and within its that reasonable readily observable, authority guard against avoidable are taken to high degree dangers of risk to areas that create a in common work liability under significant For there to be number of workers. supervisory general Funk, with be a contractor there must authority job site, coordinating work area a common over subcontractor, employees and a than one of more shared danger area readily in common work avoidable observable and significant degree of work- high number of risk to that creates a court, Carrington deposition took the circuit and before the ers. Considering position general these facts contractor. that it was the plaintiff, nonmoving there is a light most favorable to the in the regard Car- genuine question to whether material fact with of supervisory general and coordi- rington and had was the contractor Further, questions workplace. fact exist nating of control over employ- area, presence whether regarding a common work pf area, working in this whether be would ees of other subcontractors observable, readily presence avoidable risk to of a there was the 453 Mich significant workers, employees of number of number and the exposed juncture risk. Because at there such a this are material questions respect Funk, with fact to each of the elements of summary disposition proper. was not Boyle Justice concurred in the result. only joined by Cavanagh, concurring Justice Justice in Mallett, dissenting part, stated that in Detroit Edison should ipjuries be liable for the incurred because it foreseeable that plaintiff come would into harmful contact with the overhead grant summary disposition lines. The in favor of the util- ity reversed, should be and the case to the trial remanded court for regard finding general negligence further fact with to the claim. may negligence only legal duty A action be maintained if a exists requires particular the defendant to conform to a standard of protect against conduct order to others unreasonable risks of inquiry importance company harm. This is of critical where a inherently dangerous enterprise delivery involved in an such as the electricity. necessary relationship The out of arises the nature of activity. requirement foreseeability, i.e., In addition is the person only anticipate whether the reasonable could the likeli- particular occur, hood that a event would but that such an event pose injury person property. would a risk of or harm to a appropriate company test is not whether the should have antici- pated particular iryury resulted, the act from which the but probability injury might whether it should have foreseen the that any activity premises result from reasonable done on the for busi- ness, work, pleasure. or holding utility duty Groncki, opin- that the has no in the lead interprets narrowly holding ion too the in Schultz Consumers Co, (1993), placing emphasis Power far much too on plaintiffs that, Parcher, plaintiff the fact like in the Bohnert and the experienced in Groncki was an worker maintenance who knew dangers about the of lines and had even warned other work- Groncki, Schultz, though ers about them. In as in even there was allegation spite disrepair, no that the wire was in and in plaintiffs alleged experience, altogether possible it is still that the plaintiff simply perform could not routine maintenance tasks with- confronting out an unreasonable risk of harm because of inade- quate space. Therefore, duty work its Edison breached to reasona- bly inspect and its install lines. concurring part dissenting part, Justice in and in stated Riley, result, law, that Wendell Bohnert’s death did as a not matter of Carrington particular from Homes’ failure to take some action at v Detroit Edison Co danger unreasonably high the for an the worksite where was delivery experienced worker like Bohnert. joined by concurring in and Justice Justice Weaver, Riley, part, that, law, dissenting a in stated as a matter of there was not presented high degree risk to Bohnert the overhead electrical Homes, general Carrington lines that would render defendant Therefore, contractor, liable. the decision of the Court of summary disposi- grant be reversed and the trial court’s should Homes, general contractor, Carrington affirmed. tion for this Construction, Funk, progeny and its Plummer v Bechtel opinion (1992), should not be followed. The lead creates Mich 646 concepts represent significant departure time-tested which from liability. prepared General must now be theories of tort contractors responsibility any injury employee received to assume employee may subcontractor, negligent no matter how be. Groncki reversed.

Parcher affirmed. part, part, in

Bohnert affirmed in reversed and remanded. dissenting, the test Justice stated that to determine Levin, company duty whether a was owed is not whether the should have particular injury resulted, anticipated but act from which probability injury might whether it should have foreseen activity premises on the for busi- result from reasonable done case, ness, work, pleasure. Applied to this Detroit Edison had a protect against reasonably care foreseeable to exercise due unskilled, homeowners, by workers, contact skilled and as well as lines. with uninsulated questions duty, opinion separate negli- The lead combines the gence, comparative negligence, prematurely and concludes on woefully inadequate summary disposition incomplete record and that Detroit Edison could not have been factual assessment protect injured expected anything to do deceased work- they injury men who could have avoided had been more alert and Co, (1970), although v Detroit 383 Mich 224 careful. Koehler Edison speaking negligence terminology, decided at a when time any contributory injured person precluded negligence of the recov- ery. Now, injured person’s comparative negligence reduces, but preclude, recovery. opinion duty to does not The lead redefines particular injured person, include the calculus the fault of the case, effect, holding, in Detroit Edison has no worker in this comparatively negligent. This redefinition of to the injury by asking person brought not whether to some about (worker nonworker) or not —or from unintentional con- —skilled ordinarily is foreseeable under tact with uninsulated electrical lines 453 Mich circumstances, negligent foreseeable but rather whether contact with uninsulated lines a skilled worker should have been fore- opinion conclusorily responds negative, seen. The lead then in the ignoring injuries, including workplace injuries, that most most even workers, injured person of skilled could be avoided if the was at all fatigue, times alert and careful and never made a mistake due to momentary lapse, distractions, or otherwise. evidence, opinion potential Absent record the lead finds that the temporary safety cost to Detroit Edison to undertake measures is great any duty safeguard so that it relieves it of a skilled worker who knows of the risk and mistake encounters uninsulated thought given might persua- lines. No to other alternatives. It sively appear complete thorough analysis from a more record and might required. that different result be A different would presented be if Detroit Edison were not aware of new construc- temporary tion and had no time to take measures in the areas may where cranes and booms encounter uninsulated wires. Oroneki does not involve new construction. There is need for development Supreme prop- further factual before the Court could erly persons consider and decide that all reasonable would con- required clude that Detroit Edison should not have been to do safeguard against mishaps more to the risk of of the kind that Supreme obliged occurred in that case. The Court is to hold that Edison, every potentially Detroit dangerous like other seller of products, precautions has a to take reasonable —not ruinous — protect public known, foreseeable, from and thus risks of harm. App 495; (1995) 531 NW2d 724 affirmed in part. reversed in Simkins & Simkins, P.C. (by Anne T. Craig and Sheila R. Thorp), for plaintiffs in Groncki.

Cubbon & Associates Co., L.P.A. (by Stuart F. Cubbon), plaintiffs in Bohnert.

Michael J. Mangapora for plaintiffs in Parcher. Plunkett & Cooney, P.C. (by Ernest R. Bazzana), for defendant Detroit Company. Edison

Conlin, McKenney & Philbrick, P.C. (by Allen J. Philbrick), for defendant Carrington Homes, Inc. 649 Co v Detroit Edison C.J. Brickley, Curiae:

Amici Reynolds for M. Catherine Brunner and E. James Company. Power Consumers (by L. Tamacki Duane Hill RL.C. Clark Michigan Henry), Manufacturers for Walker Association. Pregler, (by

Grylls, PC. & Richter Faeca, Chapter, Facca), Greater Detroit for AGC A. Patrick Carpenter Chapter, Michigan and Associated AGC Michigan, Inc. of Contractors were combined C.J. These cases Brickley, negli- they allegations of all concern review because power company resulting gence of a on the overhead with uninsulated harmful contact against Edison was Detroit Each of the cases lines. summary disposition regarding the issue decided on summary judgments duty. de This Court reviews of see if the entire record to must review the novo and summary disposition. was entitled defendant 487 293, 302; Mich Co, v Thomas Solvent Adkins legal (1992). is The existence NW2d 715 Trager decide. Court to law for the (1994). NW2d69 Thor, 95; 445 Mich suit Bohnert’s is Barbara before the Court Also Carrington against This suit Homes, Inc. defendant Carrington alleges for the electrocu- is also liable General under Funk v her husband death of tion (1974). Corp, This 91; 220 NW2d Motors summary judg- grant was also decided case by the reversed which was defendant, ment for Appeals. of review Therefore, the standard Court 453 Mich 644 Opinion by Brickley, C.J. relating Carrington also de novo. The issues will be separately concerning discussed from those Edison.

I. FACTS A. PARCHER v DETROIT EDISON moving Theodore Parcher1 was electrocuted while twenty-nine-foot high scaffold on a forklift on July twenty-nine years 25, 1990. He was old at the working time of the accident and was as a forklift operator supermarket. at the construction of a The power sixty-five building, lines were feet from the thirty-five ground. feet above the The accident attempted occurred as Mr. Parcher to reverse around pile bringing scaffolding debris, into contact power operated with the lines. Edison owned and lines at ongoing the time of the accident, knew of the agreed construction, and had to move one of the poles parking being to accommodate a lot that was along building. power built with the lines had place years been in for a number of before the con- began. employer struction Further, Mr. Parcher’s had presence warned workers at the site of the power injuries lines. Mr. Parcher’s resulted in amputation right right leg, of his arm, and left foot. granted summary disposition

The defendant on by December 23, 1992. This decision was affirmed Appeals January opin- the Court of on 24, 1995.In its ion, the Court of found that the accident was legally foreseeable and therefore, the defendant plaintiff legal duty. App owed the no 495; (1995). 531 NW2d 724 To avoid confusion, all plaintiffs will be referred to by surname. Co Groncki v Detroit Edison Brickley, C.J.

B. GRONCKI v DETROIT EDISON supervisor at a a maintenance Groncki was Gerald injured complex when a lad- and was condominium moving with an came into contact he was der that result, electrical line. As overhead uninsulated plaintiff bums cardiac arrest and suffered went into hospital in the He remained of his left foot. days approximately his left foot was ten and a toe on cog- amputated. alleges also that various Mr. Groncki personality changes resulted nitive difficulties injuries. wife has also filed Mr. Groncki’s from his consortium claim.2 loss of day Mr. was work- accident, Groncki On the ing with another the roof of a condominium on twenty-four-foot employee. using alu- were The men gain roof. Mr Groncki ladder to access to the minum danger of worker about the had warned the other working After the other near lines. employee Mr. area, in a different left to work attempted himself. Unfortu- to move the ladder nately, which fell onto ladder, he lost control of twenty-one power lines. The lines where building. high The lines and 14V2feet from the feet years portion place before the been in for six had working complex had Mr. Groncki was the on which con- Further, Mr. Groncki worked on the been built. complex and was familiar with its of the struction facilities. by summary disposition the awarded

Edison was Appeals May 27, 1992. The Court of court on circuit in an 27, 1994, decision on December reversed this Groncki’s derivative ^[2] As this opinion claim does not addresses require separate treatment. of Edison to Mr. Groncki, Mrs. 453 Mich

Opinion by Brickley, C.J. unpublished opinion per (Docket 153538). curiam No. Appeals The Court of determined that it was foresee- using able that someone an aluminum ladder could be injured by power ruling lines. This is now appealed by the defendant to this Court.3

C. BOHNERT v DETROIT EDISON This case concerns the fatal electrocution of Wen- dell Bohnert on October 10, 1989, at a home con- delivery struction site.4 Mr. Bohnert was a man for National Cement Products of Toledo, Ohio. At the years fifty-eight accident, time of the he was old and delivering masonry supplies had been for National forty years. Cement Products for On October delivering 1989, Mr. Bohnert was a load of cement president blocks that had been ordered of Car- rington, Stephen Dick. No one was at the site when began Mr. Bohnert arrived, so he to unload his truck unsupervised. doing despite presence so, specific warnings deployed on the truck, Mr. Bohnert the boom of his truck beneath lines. Unfortu- nately, the boom touched the lines and Mr. Bohnert was killed. The electrical lines were located the claims cited language Thus, codefendants properly inspecting repair in the defendant around the lines. Edison was Groncki’s plaintiff The owners Edison claims that the Court of the Adkinses are no placement and/or of Mr. Groncki’s allegations. did not also inspection” negligent the suit. of the negligent However, the Court of appeal It asserts wires, home, Roy repairing Given the of the lines. However, complaint. in its longer parties the award of Mr. Groncki’s while the Court of failing that Mr. Groncki “construction, unlike and Ernestine Appeals expanded lines, were to this lawsuit. properly summary disposition Carrington complaint alleges encompassed by requirements maintenance, operation, Appeals failing only alleged insulate the Adkins, and Detroit to erect barriers determined that were scope negligence the broad lines, for them. pleading, Edison, initially of Mr. v Detroit Opinion by Brickley, C.J. twenty- height from the house and at a

twelve feet Edison, lines were uninsulated. six feet. The lines, and controlled the was aware of who owned inspected and had the site. Edison the construction insulate or move the lines free of refused to expense, this could but informed the homeowner that However, be done for a fee. Edison reviewed the requested planned that the location of the house and away from the homeowners move it four feet farther clearance. The lines order to achieve twelve-foot complied request. homeowners with this plaintiff, alleges wife, Mr. Bohnert’s that Edison negligent failing insulate, relocate, or de- energize failing wires, and in to warn her husband presence. alleges of their Mrs. Bohnert also that Car- rington, general contractor, a licensed is liable as a general contractor under this Court’s decision in Carrington disputes Funk. this and claims have many performing been one of subcontractors work on plus” only per- Carrington argues a “cost basis. that it by requested formed construction as the homeown- general ers, who were their own contractors. How- requires general ever, local ordinance a licensed manage Furthermore, contractor to the construction. deposition president Carrington, gave Dick, Mr. testimony Carrington general was the contractor. Carrington general have been the Further, claimed to during argument contractor oral before the circuit court. Carrington

Both were awarded sum- Edison mary disposition However, these in circuit court. Appeals Court of in an decisions were reversed unpublished opinion per (Docket 158314). curiam No. The Court of found that there was 453 Mich Brickley, C.J. injury regarding of fact whether the was foreseeable by Edison and whether the site was common work authority Carrington. area under the Both defend- appeal Carrington ruling. ants Edison and this n. CLAIMS ASSERTED AGAINST DETROIT EDISON A. STATEMENT OF LAW APPLICABLE TO EACH PLAINTIFF scope duty compa of the owed electrical power de-energize move, nies to insulate or overhead foreseeability. lines is a Schultz v Con sumers Power Co, 445, 452; 443 Mich 506 NW2d 175 (1993). Utility companies, particularly electric com panies, charged protect against are with a foreseeable harm. Id. Largess, App

In Dees v L F 421; Mich 136 NW2d plaintiff (1965), was electrocuted when a power crane came into contact with overhead lines plaintiff, owned Detroit Edison. The a construction holding hanging worker, was a hook from a crane power when the crane’s cable contacted a line. The Appeals upheld Court of a directed verdict for Detroit Edison. The Court found that Detroit Edison was not negligent failing anticipate that a skilled work- knowledge man, with full wires, would come through into contact with these wires the cable of a crane. Id. at 427.

In Koehler Co, v Detroit Edison 224; 383 Mich plaintiff (1970), riding NW2d827 was killed while employment on the arm of a crane as of his at a construction site, when the crane’s arm came into contact with overhead electrical cables. This Court upheld the trial court’s determination that the electri- company plaintiff, despite cal owed no to the its v Detroit

Opinion by Brickley, C.J. knowledge reaching of the construction. Id. at 231. In conclusion, this this Court stated: building

The mere fact that Detroit Edison knew a that, under construction near its line and from time time, being brought upon prem- mobile cranes were work, not, standing ises to be used in construction would alone, duty upon create a Detroit Edison to remove the charge, line, notify parties danger- insulate the of a ous condition. [Id.] anticipate

Thus, because Detroit Edison could not that cranes on construction sites would contact its plaintiff. lines, it owed no to that

The Court of revisited the issue in Rans App Co, Detroit Edison 537; 335 ford (1983). NW2d211 In that case two men were electro plaintiff’s cuted, and the decedent killed, when the wire-guided planes they flying model were crashed into electrical wires. Id. at 541-542.The Court found duty power that there was no pany on of the com completely because the occurrence was unfore liability seeable. Id. at 546. Rather, it stated that could purely not be based on such fortuitous circum explained stances. Id. Further, the Court that the foreseeability issue of should be determined at the time the lines were installed. Id. spoke

This Court last on this issue in Schultz v supra. Consumers Co, Power That case involved the death of a homeowner when a ladder that he was holding directly through came contact, into either or power an arch, electric with a Une. The electric line placed away preexisting had been 15V2feet from the frayed house. At the time accident, of the the line was pitted. finding duty, a this Court noted that 453 Mich Brickley, C.J. provid- occupy special companies role as electrical yet extremely dangerous essential, commod- ers of an relationship ity. special with the Id. at 450-451.This duty upon public impose a electrical was found to repair companies “reasonably inspect and wires in order to discover and and other instrumentalities remedy 451. The Court hazards and defects.” Id. at duty also formulated a test to determine when this particular in a case: existed duty The. test to determine whether a was owed is not company anticipated particular have whether the should injury resulted, act from which the but whether it should probability injury might have foreseen the result from activity premises business, reasonable done on the work, pleasure. [Id. 452.] involving The Court determined that an accident given foreseeable, homeowner was the location and disrepair line. plaintiffs allege in Parcher and Bohnert also duty presence

that Edison owed to warn of the duty dangerous power However, lines.5 there is no person warn someone of a risk of which that Mfg, App & aware. Bullock v Western 128 Mich Gulf Specifically, (1983). 340 NW2d 294 there is no 316; to warn of known overhead lines. Wil- App Co, 116; helm v Detroit Edison severally, (1974) (finding NW2d no warn plaintiff finding but of fact because the insulated). believed the lines to be Further, only to warn arises when there is a foreseeable vic- involve a At oral duty argument, to warn. Mr. Groncki’s counsel stated that her case did v Detroit Gronch C.J. Brickdey, inspect duty, like the Thus,

tim. this repair, arise where it is not foreseeable does not plaintiff would come into harmful that the Edison with the wires. contact

B. APPLICATION v DETROIT EDISON PARCHER 1. correctly no found that

The Court protect Mr. of Edison to Parcher. arose on the closely analogous to Dees and Koehler. This case is Dees, could not have Edison, like the defendant reasonably workman, a skilled with full foreseen that power bring knowledge a crane lines, would in Koehler, with those lines. As into contact ongoing construction, knew that there was Edison any high profile reason to know that but had no machinery would be used near its lines. There- a Koehler, under Dees and Edison did not owe fore, duty Mr. Parcher.

Similarly, Parcher’s acci- the circumstances of Mr. dent are fortuitous. The forklift Mr. Parcher was driv- only ing Mr. came into contact with the wire because transporting uncollapsed an scaffold Parcher was reversing pile Edison could while around of debris. reasonably would not have foreseen that worker twenty- pile bring of debris and reverse around uncollapsed high scaffold into contact with nine-foot summary disposition Thus, wire. its electric appropriate not foresee- because these events were supra. able, and, therefore, Ransford, no arose. poorly wire that Further, this was not a maintained placed close to a home as in Schultz. had been on a commercial construction Rather, this wire was building sixty-seven at a and was feet from site 453 Mich Brickley, C.J. height thirty-five only feet. Not is there no evi- showing adequately dence that this wire was not building maintained, but the distance from the is suf- ficient to make this accident unforeseeable. Thus, easily distinguishable Schultz is from this case. Finally, duty Edison did not owe Mr. Parcher a clearly warn. Mr. Parcher’s contact with the wire was duty unforeseeable, and, thus, no to warn arose. Fur- ther, Mr. Parcher had been warned about the wires supervisors job on the site. Mr. Thus, Parcher was fully presence aware of the of the wires. Edison owed duty danger. no to warn about known Wilhelm,Bul- supra. lock,

2. GRONCKI v DETROIT EDISON alleges Mr. Groncki that Edison him owed inspect, repair, place to: and insulate the lines; safety the lines in a location; safe and erect barriers allegations around them. Similar to the of Mr. Parcher, Mr. Groncki’s claim rests on the foreseeability. The Court of reversed the trial grant summary judgment, finding court’s disagree Edison owed a Mr. Groncki. We summary disposition restore the award of for Edison. Mr. language Groncki bases his claim on Schultz’ power company that a owes on the basis of probability injury might “the result from rea- activity premises sonable done on the business, pleasure.” work or Schultz at 452. Mr. Groncki claims engaged activity that he in reasonable while repairing the roof of the and, condominium therefore, duty by was owed a Edison. However, there are sev- distinguish eral facts that this case from Schultz. In probability injury upon Schultz, the was based v Detroit Opinion by Brickley, C.J. frayed placed preexisting line that had been next to a plaintiff structure. Further, in Schultz was a repairs making homeowner to his own home. this suggesting case, there is no evidence that the line was poor properly condition or was not maintained. Further, Mr. Groncki was not a homeowner unfamil- dangers iar with the of electric Rather, lines. he was experienced fully an workman who was aware of the presence Indeed, of the wires. he warned a coworker exceptional power to take care around the lines. ignore Thus, it was not foreseeable that he would his warnings attempt fully own and to move the extended duty himself,6 metal ladder and Edison owes no to Mr. Groncki.

3. BOHNERT v DETROIT EDISON overturning grant The Court of erred in summary disposition of on Mrs. Bohnert’s claim against injury Mr. Edison. Bohnert’s was not foresee- duty able to Therefore, Edison. Edison owed no de-energize warn Mr.Bohnert or to move, insulate, power in Dees, lines. As Mr. Bohnert was a skilled experienced years experience. workman with masonry delivering sup- Indeed, Mr. Bohnert had been plies forty years. Mr. Further, Bohnert had knowl- edge dangers operating the boom on his power warning truck near lines. Indeed, there was a the National Electric fore, goes nized Public Service Commission. 1991 nary care, standards are not concerns the issue of Edison also Schultz, to the not whether a argues “An applicable argument duty. Safety that it met whether a defendant breached its to the Commission and existed.” on the basis of AACS, applicable appeal Schultz R 460.813. before this safety adopted by industry standards, standards set forth 456. However, Court, Thus, duty which the NESC as Michigan of ordi recog there solely 453 Mich 644

Opinion by C.J. Brickley, only against operation a few such inches above the Simply put, boom’s controls. it was not foreseeable to experienced, Edison that an skilled workman would operate disregard delivery clear instructions his directly Thus, vehicle beneath lines. no plaintiff. arose on the of Edison to any type Further, Edison had not been notified that machinery operating would be at that location on day. clearly knowledge large that It had no that a delivery equipped oper- truck with a boom would be directly ated beneath its lines. While Edison did know being that a house was built at that location and reasonably expect machinery could would be degree knowledge used, this was found insufficient argument to create a in Koehler. Plaintiff’s driveway only place was the where such material change could be delivered does not this conclusion. expected probable Edison cannot be delivery to know all any given locations on construction site. reasonably expect Rather, it can that trained work- operate delivery directly men will not vehicles under operation required, or, lines if such will properly inform Edison. power

The mere location of the line does not impose duty a on Edison. While this line was closer significant than in Schultz, there are factors that distinguish First, this case. there is no evidence that power disrepair. line in this case was in pitted frayed suscepti- Schultz, the wire was arching. Secondly, power ble to line had been placed by in its location Edison before the com- power mencement of In Schultz, construction. company placed dangerously had the line close to a preexisting Indeed, house. Edison had informed the v Detroit Gronch Brickley, C.J. building danger too in this case of

homeowners power them to had convinced lines, and close additional to achieve several feet the structure move impos- weigh in favor of not factors These clearance. duty ing a on Edison. policy public considerations

c. imposition against policy mitigates also Public policy public duty a fac- Sound in these cases. duty. deciding Smock, Sizemore tor Employ- (1988); v State 422 NW2d 666 293; Antcliff NW2d 624, 630-631;327 Union, 414 Mich ees Credit (5th ed), (1982), Keeton, Torts also Prosser & see pol- recognized, p § “Social this Court has 53, 358. As point icy to limit the extent of at some must intervene plain- liability.” Further, these at 293. one’s Sizemore repair inspect and tiffs contend that imposed relocate, duties to includes the Schultz safety de-energize, and erect barriers insulate, warn, power as such at 455. Inasmuch around lines. Schultz proper holding expand that this Schultz, it is would public policy of such ramifications Court consider the a decision. public’s policy need for at issue is the

The social impose power cost. To electric at a reasonable de-energize when- lines relocate, insulate, or parties buildings near construct ever third policy. The costs of interfere with this lines would significant. moving insulating lines would be these power lines in 35,000 over miles of Edison alone has request plaintiffs impose the this state. To certainly huge be cost that would amount to would may public. consuming passed Further, it on to Mich by Opinion Brickley, C.J. impossible

often be for Edison and other com- panies away lines new move from construc- moving preexisting without them tion closer to struc- injuries event, tures. the costs of such as those by plaintiffs suffered these will have to be met in another societal forum.

HI. BOHNERT CARRINGTON HOMES Appeals correctly The Court of overturned the disposition summary Carrington. award The lia- bility Carrington governed by supra. Funk, Funk by many involved an work elevated area shared sub- exception general contractors and created an to the general inju- rule that a contractor is not liable for the employee. of a ries subcontractor’s regard We general it to be a the business of a con- steps supervi- tractor to assure that reasonable within its sory authority and coordinating guard against are taken to readily observable, dangers avoidable in common work high degree significant areas which create a of risk to a number of workmen. [Id. 104.] liability Thus, for there Funk, to be under there must 1) general supervisory be: contractor with and coor- dinating authority job 2) over the site, common by employees work area shared of more than one 3) readily subcontractor, observable and avoid- danger 4) able area, in that common work that cre- high degree significant ates of risk ato number of workers.

Carrington by liability arguing seeks to avoid that it general supervisory was not a contractor with control merely over the work It area. claims to be one of v Detroit C.J. Brickley, many homeowners. How- hired subcontractors deposi- president Carrington in his stated ever, the general Carrington contractor. Fur- was the tion that supplies the he ordered he admitted that thermore, normally supervised delivering and Mr. Bohnert posi- delivery. Finally, Carrington type took the this general the cir- contractor before that it was the tion light considering facts in these Thus, cuit court. nonmoving plaintiff, there' is a most favorable to regard question genuine fact with of material general Carrington was the contractor whether supervisory coordinating control over the had workplace. regarding question exists

Further, a of fact presence v Pure work area. Erickson of common App (1976), NW2d411 330; 72 Mich Corp, Oil Appeals a common work area found that for Court employees an area where the exist there must be eventually work. will of two or more subcontractors by holding Court of was reaffirmed This App Phillips Mfg, Mich Motor Mazda argues (1994). Carrington 408; 516 NW2d 502 liability unduly creating Funk, this rule extends employees contractors will eventu time of different ally The common work work in the same location. only of Funk. The mere area, however, one element supervi presence area, without of a common work readily sory general and a contractor control significant number and avoidable risk to observable liability. necessarily impose Thus, workers, will not improper but Funk, an extension of Erickson was not merely for one of Funk’s four established the test elements.

Opinion by C.J. Brickley, question regarding However, there is a of fact employees whether of other subcontractors would be working question appears in this area. The area driveway be the main into the construction site. Mrs. Bohnert claims that this was used all workmen on project. simply Carrington asserts that Mr. only person Bohnert was the who worked in that area only person injured because he was the there. This dispute presents question. an unresolved factual summary judgment appropriate Therefore, is not juncture. this regard-

We also note that a factual exists ing presence readily of a observable, avoidable significant Carrington risk to a argues number of workmen. plain that the line was in the view of Mr. Therefore, Bohnert. there is at least a of fact respect with to whether it was observable to Car- rington. parties dispute feasibility also safety precautions may any have avoided risk posed by Finally, dispute line. there ais employees exposed about the number of such risk. Mrs. Bohnert most, claims that if all, equipment passed along workers and their this drive- way directly support and beneath line. To alleges driveway claim, this Mrs. Bohnert that this only was the feasible means of access to the con- Carrington struction site. asserts that this is not the again, ques- case. Once this conflict demonstrates a summaiy disposition tion of fact renders inappropriate. impose

It is consistent to for this accident Carrington, on but not on Edison. Edison could not foresee the accident because it was not informed that operating delivery Mr. Bohnert would be a crane-like Detroit v. J. Mallett, Carrington is However, if beneath wires. its track job site, it control of the to have had sufficient shown may acci- of this been aware of the likelihood have satis- Funk are Further, when the elements of dent. presumed general have been contractor is fied, readily and avoidable foresee that observable able to injuries. Thus, and this will lead risks to accidents respect may with have been foreseeable accident junc- Carrington, However, but Edison. at this not to respect questions of with there are material fact ture summary Funk. dis- Thus, of the elements of to each Appeals proper position and the was not Court judgment reversing of the trial court decision correct.

CONCLUSION. judgment Therefore, I affirm the of the Court would in affirm Parcher, Groncki, in reverse part part and in in The claims in reverse Bohnert. against and Mrs. dismissed, Edison should be against Carrington cir- suit remanded to the Bohnert’s proceedings court for with this cuit opinion. further consistent Boyle, J., only concurred in the result. (concurring dissenting in Mallett, opinion’s holdings

part). I concur with the lead Detroit Parcher v Detroit Edison and Bohnert v both opinion’s disagree with However, I the lead Edison. that Edison is liable for the conclusion Detroit injuries in it not foreseeable Groncki because was plaintiff harmful contact this would come into agree I' Court lines. with the with the overhead summary reversing Appeals holding grant the of of 453 Mich 644 666 Mallett, disposition utility, in would remand favor finding regard to the trial for further fact with court general negligence complete to the claim. A more liability utility record from to of which assess the the provided concerning in this case needs to be proximity building of the wires to the and to the ground. unpublished Co, Groncki Detroit v Edison opinion per curiam, 27, issued December 1994 (Docket 153538),slip op holding No. In 1, 3. duty gives Groncki, there is no in the Court too nar- reading holding row a v to our Schultz Consumers (1993). Co, 445; Power 506 NW2d 175 Such principles neg- restriction is with inconsistent basic ligence opinion law that lead fails address. may negligence only

“A action maintained if a be legal duty requires exists which the defendant to con- particular form to a standard of conduct order to protect against others risks of harm.” unreasonable Corp, Riddle v McLouth Steel 85, Products Mich (1992). assessing 96; 485 NW2d In whether to impose duty courts must evaluate several factors, among relationship parties, which are foreseeability harm, the nature the risk McKay, itself. Buczkowski v 100; Mich duty (1992). NW2d 330 Whether a will be found to question Trager exist is a of law for the Thor, court. (1994). legal 445 Mich 95, 105; 516 NW2d 69 Once a required established, is a breach of that is liability Whether attach. has been jury. breached is a of fact for the Riddle, supra at 96. relationship determining whether the between parties duty, proper sufficient establish a Detroit Opinion Mallett, J. “

inquiry obli ‘whether the defendant is under is particular plain gation of the for the benefit supra quoting 100, Fried Buczkowski, . . . tiff’ (1981). 1, 22; 312 NW2d 585 Dozorc, man v relationship analysis of the concerns whether the This parties legal obligation should be is such that imposed citing Id., another. on one for the benefit of “Only p (5th ed), § if Keeton, & Torts 356. Prosser arising recognizes a with due care the law to act subject relationship parties of the does it from liability negligent conduct.” Fried defendant sufficiency supra assessing man, at 22. In of the impose duty, relationship this Court and whether to that those who “[i]t has noted that is well established particular special activities or enter into undertake relationships procure

assume a distinctive experience regarding knowledge and that activ ity supra Schultz, .. . .” at 450. inquiry importance

This is of critical where a com- inherently enterprise pany dangerous is involved an delivery electricity. necessary The rela- such as the activity. tionship arises out of the nature of the provision electricity and electric is one of particular provider in which the those activities duty. Accordingly, assumes a distinctive we held that responsibility company, it is the of the electric as a provider inherently commodity, dangerous of an in its superior position knowledge expertise, and to exe- through cute its activities the exercise of reasonable practicable. far care to reduce the risk of harm as as service that, “[w]here Id. at 451. We noted in Schultz utility wires erected and maintained an electric carry company powerful current, electric so that persons proximity coming into contact with or 453 Mich 644

Opinion by Mallett, likely injury death, them are to suffer serious company protect must exercise reasonable care to public danger.” from Id. at 453-454. person though charged

Even the reasonable with propensities knowledge dangerous of elec- tricity, utility obligation still has the “to reasonably inspect repair wires and other instru- remedy mentalities in to order discover and hazards and defects.” at 451. Indeed, Id. other courts have “ similarly high-voltage that, held ‘where lines were closely strung spaced private between residences, the highest order; risk to be foreseen was of the thus, the corresponding devolving upon the com- ” pany equally great.’ must be considered Id. at quoting Long Lighting Co, Miner v Island 40 NY2d (1976). 372, 379; 353 NE2d 805 requirement foreseeability, In addition is the that person only is, whether the reasonable could anticipate particular the likelihood that a event would pose occur, but that such an event would a risk of injury person property. or harm to a or Samson v Saginaw Bldg, Inc, 393, 406; Professional (1975). 224 NW2d Samson, we stated: Foreseeability depends upon . . . whether or not a rea- anticipate sonable given might man could that a event occur under certain conditions. But the mere fact that an may impose duty upon event be foreseeable does not accordingly. defendant to take some kind of action The perceives might pose event which he occur must some sort injury person property of risk of to another or his before may required Negligence actor be to act. . . . ... actor, not found to exist unless an who is under a to act, perceived per- fails to act after he has or should have ceived an unreasonable risk of harm to another. Co v Detroit Edison Mallett, pointed

Consequently, Schultz, it is alto- out in as anticipate person possible gether for a reasonable performing mainte- routine that an individual both if his electrocuted could become on his home nance overhead into contact with the ladder came aluminum injury or could cause serious line and that this message is clear The Schultz Id. at 452. death. electricity transmitting engaged are bound “[t]hose ordinary surrounding anticipate of the area use appropriately safeguard attendant and to lines appropriate “whether the test is not risks.” Id. anticipated particular company act should have injury whether it should resulted, which the but from injury might probability result have foreseen activity premises done on from reasonable pleasure.” Accordingly, we held work, Id. business, reasonably Power owed “a that Consumers public safeguard power lines so as to install its injuries.” Thus, it Id. at 458. from foreseeable a homeowner that it was foreseeable that determined injured performing routine main- could become while utility dwelling the tenance on his and that safeguard against risks as far as bound to such practicable. utility holding Groncki, has no in that narrowly holding opinion interprets our lead too opinion places far too much

in Schultz. The lead plaintiffs emphasis in that, the fact like the on plaintiff in was an Parcher, and Bohnert experienced who knew about maintenance worker dangers had even warned lines and 453 Mich Opinion by Mallett, other workers about them.1 Ante at 660-661. Accord- opinion ingly, posits lead that Groncki should be governed Koehler v Detroit Co, Edison 224; 174 NW2d 827 (1970), and its progeny, like Schultz,2 Bohnert, Parcher and rather than These really represent cases liability continuum of with Koehler, finding duty, no on one end, Schultz, imposing duty, on the other. However, there are sig- nificant differences between Groncki, on the one hand, and Parcher, Bohnert, and Koehler, on the other, that the opinion fails to consider, which bring it closer in holding Schultz. trilogy Koehler-Bohnert-Parcher involved con-

struction sites where new building taking place. was space The work in which the construction activities place took ample was for the activities to occur. The victims these extremely experienced cases were operating heavy equipment, whether a forklift, masonry delivery truck, crane, or and ignored their plaintiffs-appellees disputed Counsel for the that Mr. Groncki was truly experienced. Noting only high that he had school education and laborer, experience, charged albeit with some construction counsel that he could not be knowledge, knowledge . . . with the saddle[d] cumulative dealing Detroit Edison has in with lines. ... Mr. Groncki was and is a maintenance man. Mr. Groncki never took formal any specific training electricity, courses or had in the area of specialized knowledge expertise

he has no as to the hazards of lines, beyond persons gen- uninsulated electrical all which are erally aware. riding sling Koehler was electrocuted while on a or wire cable perform attached to a crane in order to two tasks at a time on a construc attaching tion site with too few workers. He was a hook on the end of the riding up crane to material in a truck and with it to wall or roof where riding repeated the material was and then attached down. He this several times, spite warnings, Koehler, supra of several and was electrocuted. at 229. Detroit J. by Opinion Mallett, occupational safety warnings. instructions

own stay and the need to They danger knew about 652, and away from overhead wires. Ante at 654- Koehler, we held that Accordingly, 655. building mere fact that Detroit Edison knew a [t]he that, under near its line and from time construction prem- time, being brought upon mobile cranes were work, not, standing ises to be used in construction would duty upon alone, create a Detroit Edison to remove the notify charge, line, parties danger- insulate the of a agree finding judge ous condition. We with the of the trial negligence that there was no on the of Detroit Edison. [Id. 231.] injuries

Clearly, circumstances, under these were foreseeable, but the result of fortuitous events not readily anticipated any way or caused in the negli- utility, liability of the and thus could not attach. gence spectrum On the other side of the Schultz, which friend, involved a homeowner and his who was elec- opinion trocuted while house The lead painting. though there Schultz, in even Groncki, as wires.3 disrepair, allegation and wire was in that the was no experience, altogether alleged spite it is still of his in perform simply plaintiff possible could not that the confronting an without maintenance tasks routine inadequate because of risk of harm unreasonable space. breached its to Therefore, Edison work reasonably inspect is under- install its lines. This and complex by fact that the condominium scored the up original grew among wires and that with sub- sequent between the wires construction the distances repairs point buildings to a where and the decreased injuries reasonably undertaken and that could not be were therefore foreseeable. experi- knowledge

Notwithstanding and Groncki’s power complied with lines ence or the fact that Safety regulations, the Commission Court the Public company Appeals charged with the the electric of duty reasonable care to reduce that it “must exercise practicable.”4 potential far as Schultz at hazards as power lines. Levin, In a utility emphasized that, separate must exercise concurrence, in reasonable care in addition Chief to the Justice Cavanagh, positioning inspect joined its uninsulated and maintain, Justice case, resolving this I would focus less on the condition [I]n position. wire and more on its [Schulte 460.] high, the wires were which and omitted). “anticipated Chief Justice building twenty-four home,” and 14% feet Groncki was than the wire in that someone with a Cavanagh lines were brought feet away working tall high. noted that the house from into the area and that ladder when might attempt the not unusual Id. at 448. Even Schultz, place was built. The lines were building. six which was 15% feet years installing Ante at 651. This is closer to though in before the condominium on this case the lines. Id. these distances com- utility was built before twenty-one task of from the house should have (citation painting feet Groncki v Detroit Edison Co Mallett, opinion companies

451. As the lead notes, “electrical occupy special providers yet role as of an essential, extremely dangerous commodity.” citing Ante at upon utility Schultz. Therefore, it is incumbent “reasonably inspect repair wires and other instru- remedy mentalities order to discover and hazards proximity and defects.” Id. In this case, the may lines to the condominium have created simply may such a hazardous condition. There ample space reasonably have been for the work to completed. have been Edison is under a inspect remedy practicable such hazards as far as where it is foreseeable that a maintenance worker or per- homeowner could become electrocuted while forming routine maintenance tasks. utility charged responsibility with the and

duty inspect, remedy discover, and hazardous con- prevent injuries. public ditions to foreseeable Both policy protection public and the of the command this disagree result. I that this will have the dire economic consequences by opinion. asserted of the lead There- respectfully opinion’s I fore, dissent from the lead position in Groncki v Detroit Edison, and would remand this case to the trial court for further fact plied Michigan Safety with the regulations (or Public Commission Safety Code, National adopted), Electric which the has MPSC the Court of preclude plaintiffs noted that this does not claim. This Court compliance industry has held that with standards is not an absolute claim negligence. of Compliance defense to a claim of Id. at 456. is evidence of duty due care ordinary and “whether a care, defendant breached its existed.” Id. Whether the defendant was whether a negligent breached its is a factual issue for the trier of fact to determine. See Co, unpublished opinion per Groncki v Detroit Edison curiam, slip op at 3 (citation omitted). Further, important safety it is to note that the stan- represent only requirements dards the minimum and that circumstances might requiring higher (citations exist standard. Schultz at 456-457 omitted). 453 Mich 644 J. Riley, injury finding was foresee- whether the to determine fell below the Edison’s conduct and whether able, include an evaluation should of care. This standard activity performed, analysis type the dis- activity, lines from the tance of the performed activity be or carried could whether the space. safety within that out with reasonable with J. J., concurred Cavanagh, Mallett, dissenting (concurring in in Riley, opinion part). agree lead that defendant I with the as a matter of law Edison did not have Detroit plaintiffs it could not the three because reasonably be that someone would have foreseen injured particular of each case. in the circumstances join opinion, part n of the which con- Therefore, I summary properly granted that the trial court cludes disposition in all defendant Detroit Edison favor of cases. three opinion join part I m of the lead

However, cannot liability general regarding contractor the issue of agree I with the Detroit Edison. Because Bohnert v injury opinion was not lead that Wendell Bohnert’s a matter to defendant Detroit Edison as foreseeable “high that there was not a law, I further conclude presented degree electrical risk” the overhead Carrington Homes, lines to Bohnert for defendant general Hence, I a matter of law. contractor, as respectfully I would reverse the Court dissent. grant reinstate the trial court’s decision and summary disposition Carrington. in favor of 675 Detroit Riley,

I opinion states, As the lead this Court has estab general a a lished that contractor has a on con steps project (1) struction to take reasonable within authority supervisory coordinating (2) its readily guard dangers against observable, avoidable (3) (4) high in common work areas that- a create degree significant to a risk number of workers. See Corp, 91, Funk 392 104; v General Motors Mich (1974). NW2d Bechtel See also Plummer v Con J.), Co, struction 666 (Levin, J.); (1992) (affirming Funk). NW2d 66 I (Boyle, regarding do not believe that there is an issue power high whether the electrical lines created degree of risk to Bohnert. examining whether there was a foreseeable risk Edison, Bohnert defendant Detroit the lead

opinion “it concludes that was not foreseeable to experienced, an Edison that skilled workman would disregard oper- [on boom] clear instructions delivery directly ate his vehicle beneath lines.” p Ante, For reason, 660. the same I also believe that lines, these which were not obscured visual present high degree obstructions, did not of risk to plaintiff Stephen as a matter of law when Dick of Car- rington asked National Cement Products to deliver materials to site. opinion

The lead that its claims conclusion that the (1) electrical lines both not did create foreseeable (2) degree high harm, risk of but did create a of risk is “consistent” because Detroit Edison operating “informed that Mr. Bohnert would be delivery crane-like beneath [the truck electrical power] pp Ante, Yet, wires.” 664-665. this Court has 676 Mich 644 453 by Riley, J. company

previously even if an electric that stated building near its was under construction “knew a being power . were . . mobile cranes line and that by upon premises,” brought not would itself this reasonably company awas to the that there indicate employee performing work an risk to foreseeable involving Co, See Koehler v Detroit Edison crane. (emphasis (1970) 231; Mich 174 NW2d 827 Carrington added). that Likewise, whether knew bringing a with a onto be truck boom Bohnert would was not determine whether there the worksite would high degree created the electrical a of risk consider, a was lines. Even if it were factor to there dispute Products not call no that National Cement did Carrington Stephen to inform him that Dick of coming was to the site to deliver the cement Bohnert attempted day on he to deliver the materi- blocks Consequently, dispute Carrington there is no als. coming to not know that Bohnert was the work- did he site when did. opinion “when ele-

The lead also claims that general is satisfied, of Funk are contractor ments readily presumed been foresee that have able to will lead to accidents observable and avoidable risks injuries.” p (emphasis added). Ante, Yet, this analysis asserting assumes its conclusion met, are when i.e., when the elements of the standard danger, general high there is risk of contractor presumed risks lead then to foresee that these will injuries, high is a i.e., that there risk to accidents and danger. reasoning is This circular. although recognize that, Instead, this Court should “inherently dangerous” lines are electrical expertise, requiring Power see Schultz v Consumers Groncki v Detroit Edison bo Opinion by Riley, Co, 443 Mich 506 NW2d there 445, 451; (1993), high degree injury delivery risk of for a forty who had worker delivered concrete block for years when he drove onto with his worksite truck signs “Waming[:] that had two on its boom that read Operate Do Not Within 10 Feet of Electric Power power Lines.” The electrical lines were not obscured. property, In fact, the owners of the Adkinses, had asked Detroit Edison move to the lines before the “mostly accident for looks.” unreasonably high that The fact the risk was not by plaintiffs arguments allega- underscored own and complaint, In tions. Barbara Bohnerfs first amended allege Carrington she does not how could have made alleged Plaintiff worksite safe from the hazard. expert, relies on the sworn affidavit of her William arguing Carrington obligated Heilman, that “delay commencement of construction until such time as the overhead lines were covered, moved, buried, by de-energized, or made safe some other means authority . . . .” Yet, take such action rested with defendant Detroit Edison. Detroit Edison had already moved the electrical lines further dis- away request tance from the worksite at the family. concluding Adkins that there was an issue regarding high of fact whether there was a risk danger respect only Carrington, opin- with the lead analysis thereby suggests Carrington may ion’s have had a to have the electrical lines moved or insulated to ensure the worksite was reasonably though safe even Detroit Edison did not have a to move or insulate them because there 453 Mich 644 Opinion Weaver, J. anyone. not risk of harm to I do foreseeable was no scrutiny. reasoning withstands close such think n tragedy. However, it Bohnert’s death was a Wendell Carrington’s from law, a matter of result, as did particular action the worksite failure to take some unreasonably high danger for an was not where delivery experienced worker like Bohnert. I would reinstate decision and reverse Court summary disposition grant of in favor the trial court’s Carrington. part dissenting (concurring Weaver, Riley’s partial agree part). Justice dissent and I with partial conclusion, with her concurrence concur opinion, regarding that, lead a matter in of the as “high degree of risk” to law, there was not presented lines the overhead electrical Bohnert Carrington Homes, that would render defendant agree general Therefore, liable. I with Jus- contractor, the Court of Riley tice that we should reverse grant and affirm the trial court’s decision summary disposition general contractor, for Car- this rington Homes. disagree separately write I with and

I because Corp, v Motors 392 would not follow Funk General progeny (1974), 91; NW2d 641 its Mich 646; 440 Mich Construction, Plummer Bechtel disposition opinion’s (1992). The lead NW2d exemplifies case on the basis of Funk Justice this expansion concerns about the unwarranted Coleman’s law, Funk, were in her dissent in of tort which voiced as follows: v Detroit Dissenting Opinion by J. Levin, majority opinion concepts represent which

The creates significant departure from time tested theories of tort liabil- ity. prepared .. . General must be to contractors now any responsibility iryury assume received employee subcontractor, negligent of a no matter how employee may be. [Id. 116.] Riley J. J., concurred with Weaver, opinion The (dissenting). lead combines Levin, separate questions duty, and com- negligence, parative prematurely negligence, concludes on woefully inadequate summary disposition records and incomplete factual assessment that Detroit Edison could not have been expected pro- to do to anything injured tect and deceased workmen who, further, injury they could have avoided had been more alert and careful.

Koehler v Detroit Co, Edison 231; 174 NW2d 827 (1970), although speaks it in negli- terminology, gence was decided at time when contributory negligence injured person pre- recovery. injured cluded Now, person’s compara- negligence tive but reduces, does not recov- preclude, ery. opinion lead defines include particular injured calculus the fault of person, worker, here holding, effect, that Detroit Edison no the comparatively negligent. has “duty” This brought redefinition of about ask- ing, injury whether person some (worker— skilled or not —or from nonworker) unintentional contact with uninsulated electrical lines is foresee- ordinarily able under circumstances, foreseeable but rather whether contact with negligent uninsulated by a lines skilled worker should have been foreseen. 453 Mich 644 Dissenting Opinion by Levin, J. conclusorily responds opinion then The lead injuries, including most most that negative, ignoring workers, could be workplace injuries, even skilled injured person was at all times alert if the avoided to fatigue, made a mistake due and careful never other momentary lapse, distractions, or cause. Co, 445, v Consumers Power Schultz this Court said: (1993), NW2d 175 452-454; 506 electricity engaged transmitting axe bound to Those ordinary surrounding the anticipate of the area lines use appropriately safeguard The the attendant risks. test to is whether the to determine whether a was owed not company anticipated particular act from should have injury resulted, have which but whether it should fore- injury probability might result from rea- seen the that business, activity premises work, done on the sonable pleasure. . . . or by an service wires erected and maintained elec Where current, utility company carry powerful electric so

tric proximity persons to coming that into contact with or them likely injury death, company are to suffer serious or public protect must care from exercise reasonable by prudent required danger. degree of care used propor persons industry, in the under like conditions and reasonably dangers involved, against guard tionate to the anticipated contingencies.[ foreseeable 1 The Court continued:

therefore, goes to Owens Allis-Chalmers under the circumstances. an engaged clusive on the dence of due can convince § 295A, p Compliance absolute 422-423; ordinary in the 62. An defense care, conformity 326 NW2d 372 with the NESC jury question industry care, argument a claim of would have taken additional reasonably prudent company would whether negligence where a reasonable on the basis of with (1982); whether an negligence. industry industry-wide a defendant breached its Restatement existed. standards While it industry standards, Corp, standard If the may precautions is not con- Torts, plaintiff person be evi- is not Mich have 2d, 681 v Detroit by Dissenting Opinion Levin, J. power company “a The Court concluded that has reasonably to install its lines so as to public injuries.” safeguard the from foreseeable Id. at 458. authority

I would hold on the that Schultz pro Detroit Edison had a to exercise due care to against reasonably by tect foreseeable contact work ers, unskilled, skilled and as well as homeowners, 2 with uninsulated lines.

Clearly required, is not Detroit Edison as its coun- argue, post extravagantly and sel amicus curiae twenty-four guards day thirty along hours over thousand miles of uninsulated electrical lines. Nor required bury underground should it be electrical prohibitive resulting lines at cost and excessive utility consumers, increase in businesses, costs to and others. opinion speaks recognizing

The lead of the cost three these cases. The record indicates temporary sleeves could be installed on near wires hung construction sites or streamers could be from during lines uninsulated times of construction involved in Bohnert and Parcher. both cases, Detroit aware, Edison was made inwell advance of auxiliary beyond required industry

taken measures those stan- dards, jury liberty clearly then the at to find that the defendant duty, regardless industry’s guidelines. breached its [Id. 456.] Mut Ins action, 91, 112; ^[2] Because homeowners as well 220 NW2d Co, concern addressed in Funk v 685, 739; (1974), is not as NW2d 702 workers are entitled to present. General Motors See (1981). also Smith Corp, maintain v Allendale 392 Mich an 453 Mich

Dissenting Levin, there would construction, the commencement bring that would construction be the kind of heavy equipment booms. Detroit cranes and with site plastic ample install sleeves time to Edison had temporarily these mark unin- otherwise streamers or lines. sulated installing temporary whether

The is silent record temporary are streamers, or measures sleeves, other concerning practical is also silent effective, instant installations cases.3 the cost of such frequency nothing about the contains record cases; in these that occurred the kind of accidents many maintenance, construction, homeowners, how delivery injured as die the result of acci- men are or in a with uninsulated electrical lines dental contact years. year, years, is or The record silent two five year concerning Detroit Edison number of times upon temporary might sleeves, install be called to temporary measures, and the streamers, or take other doing cost of so. opinion, evidence, such record

The lead absent potential to Edison is so finds that the cost Detroit any duty safeguard great to relieves it of that it who knows of the risk mis- “skilled” worker thought No is an uninsulated line. take encounters appropri- given alternatives. This Court could other approval ately suggest that Edison seek the of Detroit of Commission assess cost the Public Service temporary sleeves, streamers, or other measures electricity against consumer of the business or other of new as of the installation cost electrical cating There was the cost deposition of moving testimony lines was from Detroit prohibitive. Edison employee indi Detroit Edison Co Dissenting Opinion Levin, J. newly might

service constructed structure. It persuasively appear complete from a more record and analysis thorough might different be result required. presented

A different be would if Detroit Edison were not aware of the new construction temporary had no time to take measures the areas might where cranes and booms encounter uninsu- lated lines. agree

Groncki does not involve new construction. I my dissenting colleague with that there is for need development further factual before this Court could properly per- consider and decide that all reasonable sons would conclude that Detroit Edison should not required safeguard against have been to do more to mishaps the risk of of the kind that here occurred.4 Whenever this Court as a rules matter of law that duty, pol- there is a or an absence it makes a icy regarding assessment the allocation risk loss, injured imposing entirely person, it sometimes on the transferring other times it to the defendant. However decides, Court has a it choice and the choice is legislative. Legislature a sense word, has the last but until acts, it decision, Court’s either against recognition liability, judicial lawmak- ing. my opinion, obligation In the Court’s is to hold feet from the building Bohnert, —the width of a the uninsulated lines were less than fifteen small room. One can visualize other cases where the uninsulated lines are hundreds greater any facility hung great height, aor number of from feet are activity and there is no indication that there will be construction in the area. That is not the situation these cases. 453 Mich 644

Dissenting Opinion by Levin, poten- every other seller of like Edison, that Detroit tially products, dangerous to take reasona- has public protect precautions ble—not ruinous— harm. foreseeable, risks of known, and from thus notes that we found this kind of incident to be “foreseeable, given disrepair the location and line.” only partially By Ante at 656. This is correct. restrict- ing holding in Schultz to homeowners repairing homes, opinion their the lead misses the greater sig- nificance In Schultz, of Schultz. the critical factors to finding placement were the and condition of whether it wires, was foreseeable that reasonable place, maintenance would take and whether this maintenance could be executed with reasonable safety placement and condition of given 453 Mich Mallett,

Case Details

Case Name: Groncki v. Detroit Edison Co.

Court Name: Michigan Supreme Court

Date Published: Dec 30, 1996

Citation: 557 N.W.2d 289

Docket Number: 101954, 102212, 102650 and 103455, Calendar Nos. 11-13

Court Abbreviation: Mich.