*1 418 LANEY v CONSUMERS POWER COMPANY Upon by December 1983. a motion Docket No. 67050. Decided Supreme for reconsideration of the Court’s decision trial, remanding reversing for a new in lieu of case application appeal, granting plaintiffs for leave to Supreme previous Court affirmed its order. Johnson, Laney, Colon administrator of estate of James W. deceased, brought an action in the Midland Circuit Court damages Company, seeking aris- the Consumers ing 16-year-old James Johnson caused death coming into contact with one of the defendant’s electric climbing yard lines while a tree in the front of his home. The court, DeWitt, J., jury David Scott refused to instruct the the defendant’s under the circumstances was to exercise a care, high instructing degree of instead that the standard was care, jury on a one reasonable and entered Allen, P.J., Appeals, of no cause of action. The Court of McDonald, JJ., D. F. Walsh and in a affirmed memorandum (Docket 47668). Court, opinion Supreme No. The in lieu of granting plaintiffs application appeal, for leave to reversed judgments Appeals of the Court of and the trial court and remanded the case to the trial court for a new trial. The defendant moves for reconsideration. curiam, opinion per signed by In an Chief Justice Williams Levin, Kavanagh, Brickley, Supreme and Justices Court held: The standard of care to the defendant in this case high is not a but reasonable care measured person company engaged maintaining electric lines would do under the same circumstances. In this case the reasonable care instruction was defective because it failed to inform the the defen- dant’s conduct is measured what careful com- pany engaged in the business of circumstances, allowing lines would do under the same judge the defendant’s conduct what a not in such a business would have done. Reversed. Power Co Ryan Boyle, dis- joined by Justices apprised jury whole jury instructions as a
sented. The required of the defendant. of conduct the correct standard object on the basis of to the instructions *2 conduct, was also which but the standard standard of subject proper instruction. Lamb (1938), overruled. M. Cholette, Bruce & Buchanan Perkins (by Bieneman) plaintiff. E. Wisner defendant.
W. wrong- in this presented The issue Per Curiam. applica- is standard case is what ful death maintains electric public utility ble trees children. near accessible power applica- care standard the reasonable hold trial court consequently ble "high that a to instruct refusing err by We also applicable. care” standard however, hold, the reasonable care and that reversal case was defective inform the failed to because re- of the this case application conduct be measured quired defendant’s in the company engaged lines would power electric business under do the circumstances.
I 4, At trial it was established that November decedent, Wes- plaintiffs 16-year-old James Johnson, climbed was electrocuted when he ley tree in front home and came yard oak of his line. The home power contact with an County located on rural in the Midland road community of Coleman. The defendant’s Opinion op the Court height ap- parallel to the road at a lines run proximately feet, and the closest line comes 41 or 42 inches of the trunk of the tree. within The lowest approximately
limbs on the tree are ground, from the and defendant’s mainte- nine feet power- away the nance crew had cut limbs on the of the tree. line side up testified that the decedent
Witnesses climbed vicinity trunk of the tree to the the lines power position, grabbed and, from that the closest ground. line and fell to the complaint alleged negligence by the defen- properly locating power lines, in not dant trimming properly tree, not ing and in not insulat- trial, At the conclusion of the filed a request informing written for an instruction jury that under the circumstances the defendant *3 required to exercise of care”.1 Instead, the trial court instructed the that the judged by defendant’s conduct was to be the rea sonable-care standard.2 1 request following Plaintiffs written for instruction contains the requested instruction: near, by, through "Where electric extended or company (high degree)
tree the is to exercise a is chargeable knowledge aptitude with that children have an and incli- they may lawfully. nation to climb trees and that do so Lamb 228; (1938); Consumers Power 8 Calla- ghan’s Michigan Jurisprudence, Electricity, Civil 22.” § 2 pertinent part: The trial court instructed the 'negligence’ respect "When I use the word to defendant’s conduct, person person in this something I mean failure to do which a careful careful doing something would do or the which a you would not do under the circumstances which find existed you case. It is for to decide what a ordo not do under such circumstances. respect negligence complied "The law with to with when an electric electricity provide contingency or others in the transmission or use of protection safely guard against any as will reasonably anticipated. duty that is The extent of the or foreseeability injury standard of care is measured in terms of a situation created. 183 Power v Consumers cause ac- no returned
The jury part on the negligence tion, finding no for trial or for new post-trial A motion defendant. was denied. the verdict notwithstanding among other arguing, appealed, plaintiff The to failing trial court erred things, instruction. requested high-degree-of-care give the unpublished affirmed Appeals The Court appli- filed an opinion, memorandum this Court. appeal for leave to cation 21, 1982, in lieu of December In an order dated Court reversed and appeal, leave to granting trial court’s remanded, ground citing requested high-degree-of-care give the failure of Lamb v Consumers authority on the Co, 286 (1938). 228; 632 281 NW Mich for filed a motion reconsideration defendant Lamb no longer authority viable arguing Detroit, light of Frederick v adopted the reasonable- NW2d in this of care sole standard care standard as jurisdiction. grant the motion reconsideration._ safeguard be no occurrences that "There is cannot anticipate contemplated. reasonably expected A failure to
guard against
exceptional
law
happening
not have arisen but
which would
negligence, nor does the
or unusual circumstances is not
anticipate
require
maintaining power
those
transmission lines
injurious
every
might
possible
cause
fortuitous circumstance
those
contacts with
recognizes
upon
instincts and
law
act
childish
"The
children
impulses.
chüd or
known that a
If
find the defendant knew or should have
vicinity,
likely
or were
to be in the
then
children were
vigilance
greater
this circum-
to exercise
*4
by you
determining
stance is to be considered
in
whether reasonable
care was used
the defendant.
care’,
'ordinary
a
I
the care
reason-
"When I use
words
mean
you
ably
which
find
would use under the circumstances
say
in the case.
law does
existed
person
for
do
That is
would do or would not
under such circumstances.
to decide.”
184
II Lamb, a a In returned in involving a similar factually case youth who when 13-year-old was electrocuted he family tree on climbed a and came in property power strung contact lines above tree. In verdict, upholding Court discussed the care to the defendant: degree imposed upon "The those electrical City lines is well stated Huber v Twin Co, 531, 535; General Electric 168 Mich 134 NW where said: " handling high 'The of electrical voltage currents of hazardous, is a extremely business and those charged that very high degree exercising business with the protection care for of life.’ "See, also, Co, City Warren v Electric R 141 Mich 298; (1905); Swaczyk NW v Detroit Edison (1919). near, "Where electrical by, are extended tree, through high of care is aptitude children have to climb trees.” 286 Mich 233, 235. Lamb,
Since this Court has not occasion review the standard of care applicable to a com- pany strings However, Detroit, in Frederick v supra, question addressed the standard of care a common carrier must exercise for the safety its passengers. The plaintiff in that case also claimed the trial court had erred by failing give "high degree of care” supported case law. After examining precedent, Souris concluded early on this jurisdiction, Michigan Coleman, Central R vCo *5 v Consumers Opinion of the Court rule common-law the classic adopted to utilize duty carrier a common imposes prudent what by care measured due He the same circumstances. do in carrier would Campbell Coleman, Justice noted that while care out pointed when "extraordinary” might be common carrier of a the care compared with business, was ordinary it in the carrier engaged in that business. Justice all companies misapplication it was a Souris discovered which contrib- later decisions this distinction of the subsequent adoption to uted un- proved The latter standard care” standard. however, overruled workable, gradually modifications, leading Souris judicial conclude: again applying practical purposes, "For all Coleman, Michigan rule of Central R Co classic —the due measured care of a common law of carrier, saying,
reasonably prudent
sometimes
—while
addition,
passenger
due
carriers reason-
greater diligence
re-
ably requires
than
candidly acknowledged
quired
others. It is time we
Michigan
Central R Co v
cases inconsistent with
While
dealt with the
Frederick
standard of care
carrier,
common
marked this
jurisdiction’s return to the common-law rule of one
Felg
standard of due care. This was
in
confirmed
Anderson,
23, 30;
ner v
Today formally acknowledge that Lamb has been overruled and that the standard of care applicable to the defendant in this case was one of reasonable care measured company engaged maintaining careful electric lines would do under the same circumstances. While we conclude that the trial refusing court in the instant case did not err give instruction, of care” we find the reasonable care instruction that was Dissenting Opinion Cavanagh, J. reversal was defective applica- jury that inform the it failed to because jury of the standard this case tion by what a conduct defendant’s measure engaged busi- lines would do ness of this crucial circumstances. Absent under the same judged may instruction, well have conduct defendant’s person in defendant’s business
have under the circumstances. done
Accordingly, we affirm the reversal remand prior order. contained our C.J., Kavanagh, Levin, Williams, JJ., Brickley, concurred. (dissenting). J. dissent for that, are read as when the instructions
reason apprised jurors whole, were it is clear that Specifically, proper standard of conduct. *7 negligence correctly trial court instructed something to do which a "failure something doing person do or the of reasonably cumstances which under the cir- would not do ** * in this case. find existed respect negligence complied with The law when an electric others protec- electricity provide or use transmission guard safely against any contingency tion as will added.) anticipated”. (Emphasis object Moreover, to the basis the standard instructions on the plaintiff objected Rather, basis conduct. majority However, standard of care. Dissenting Opinion J. clear, subject makes the latter standard was the proper instruction. we would affirm the
Accordingly, Appeals. the Court of
Ryan Boyle, JJ., concurred with Cav- anagh, J.