Schultz v. Consumers Power Co.

Power Consumers POWER COMPANY SCHULTZ v CONSUMERS 11). (Calendar 13, Argued January De- No. Docket No. 92313. Rehearing August 1202. 1993. denied cided Schultz, personal representative of the estate as Alice M. deceased, Schultz, brought wrongful action in a death L. Duane Company, Saginaw against Consumers Circuit Court the repair inspect negligently an alleging failed to and it paint- fatally while the decedent wire that electrocuted electric danger- house, negligently the wire ing it installed a and that residence, permitting current to arc ously electric close to the held the decedent. ladder from the wire to an aluminum Kaczmarek, J., jury court, judgment on a entered L. The Robert Gillis, P.J., Appeals, plaintiff. and The the Court verdict for opin- JJ., unpublished in an Doctoroff, reversed Weaver and plaintiff curiam, ruling the per of law that as a matter ion duty owed the defen- of care was failed to establish that a decedent, characterizing as a the accident and dant to the circumstance, contingency antici- a fortuitous 118323). (Docket plaintiff appeals. pated No. joined by Justices Levin, opinion by Justice Mallett, In an Supreme Court held: Brickley, Boyle, and the reasonably protect members has a Consumers Power danger general public from its from foreseeable power lines. involving negligence an unreason- Generally, conduct is 1. requisite a cause of action elements of risk of harm. The able plaintiff, legal duty to the a that the defendant owed are it, dam- suffered violated breached or defendant damages. proximate To of the ages, cause and the breach was exists, relationship parties determine whether foreseeability risk must be examined. nature of the and and utility company case, relationship and between In this impose duty. electrical Because sufficient to the decedent was utility companies inherently dangerous energy and electric References 18, 111, 10,11, 2d, Gas, 120. Electricity, §§ and Steam Am Jur Negli- Companies; Electricity Electric ALR Index under See gence. 443 Mich it, possess expertise dealing must an electric potential hazards as far as exercise reasonable care to reduce inspecting repairing practicable, including reasonably remedy haz- wires and other instrumentalities to discover and ards and defects. negligence probability the 2. The test of is whether activity injury might done on the result from reasonable case, utility premises In this the should have been foreseen. company that homeowners maintain their should have realized Considering proximity primary of the uninsulated homes. the house, making wire to the it was foreseeable that someone repairs injured by dilapidated could be wire. The defendant’s wires, inspections or conduct- failure to conduct routine ing manner, reasonably them in a careless or deficient made it foreseeable that use of an aluminum ladder could result in injury relationship or death. Because there was a sufficient harm, parties utility the the between and a foreseeable risk duty properly inspect the owed a to decedent to and maintain reasonably safeguard against injury its wires so as to or death. current, carry powerful 3. Where service wires electric so persons coming proximity into contact with or to them are death, likely injury utility to suffer serious must exercise protect public danger. degree reasonable care to from required by prudent persons of care is that used in the indus- try, proportionate dangers under like conditions and to the involved, guard against reasonably anticipated to foreseeable or contingencies. companies ordinary Electric must exercise care guarantee equipment kept reasonably to in a safe inspect repair condition. The duties to and involve more than remedying actually brought utility’s defective conditions to a attention. industry practices 4. Custom and are relevant to the issue of care, they dispositive respect duty. due but are not with to Compliance Safety with the National Electric Code or an industry-wide standard is not an to a absolute defense claim of care, negligence. may conformity While it be evidence of due industry question standards is not on the conclusive negligence person engaged industry where a reasonable in the precautions would have taken additional under the circum- power company reasonably stances. A has a install its power safeguard public lines so as to from foreseeable injuries. joined by concurring, Cavanagh, Levin, Chief Justice Justice frayed stated that failure to maintain a wire had less to do position with the accident in this case than the of the wire. primary plaintiff’s injury Because the cause of the was not the repair wire, frayed defendant’s failure to detect and but the Power Co v Consumers Opinion of the Court preexisting power positioning line close to a of an uninsulated house, two-story the focus should be on defendant’s wooden power positioning its uninsulated of reasonable care line. and remanded. Reversed dissenting, Riley, joined by Griffin, stated Justice Justice law, that, no owed as a matter defendant negligence part duty, on the and thus there was no actionable were circumstances of the accident of the defendant. The fortuitous, defendant utilized foreseeable. The installing safety its line that exceed standards requirements, applicable industry and the standard and code danger open involved was and obvious. Repair Duty Inspect Negligence Companies — — Electric Foreseeability. — reasonable care to reduce An electric must exercise including reasonably practicable, potential as far as hazards inspecting repairing and other instrumentalities wires remedy hazards and defects. discover and Allweil, Hurlburt, Benschoten, Tsiros & Van Hurlburt), plaintiff. (by for the Lawrence A. P.C. for the defendant. W.E. Wisner wrongful action death this Mallett, representative personal brought by Schultz, Alice granted Schultz, to leave estate of Duane we of the Power defendant Consumers determine whether Company to Duane Schultz owed a of care inspect, repair, install its electric and Appeals concluded, aas The Court of conductors. duty. law, owed no such that defendant matter We reverse.

I July Schultz, decedent, 13, 1983, Duane On assisting friend, Keith electrocuted while was Michigan. paint Merrill, The Osmond, his house from defendant’s current emanated fatal electric approximately medium-voltage wire, installed wires, neutral two one line contained 1937. The 443 Mich Opinion of the Court primary carrying wire and one uninsulated1 primary 4,800 situ- volts. The wire was current of roughly feet, from the house ated fifteen six inches height twenty-four at a feet. completed painting men most of the two However,

from a to reach the moveable scaffold. peak they twenty-seven house, of the ascended a peak foot aluminum extension ladder. Once painted, began lowering Mr. the lad- Osmond pulled away der. He testified that he the ladder vertically, and, from the house as it stood grabbed ladder from the other side. decedent flash,” instant, At that "there was a brilliant and Osmond, Mr. Schultz was electrocuted. Mr. who survived, denied that the ladder contacted the wire. alleging suit,

Plaintiff filed that Consumers negligently inspect repair failed injured fatally wire that ally, plaintiff the decedent. Addition- negli- claimed Consumers Power gently dangerously installed the wire close to the frayed Osmond residence. She asserted that wire allowed electric current to "arc”2 from defendant, Technically, according space surrounding the air electricity transmission line duct as insulation serves because cannot con through Nonetheless, protected air. the wires at issue were not by any tangible insulating cover. disagreement There was considerable at trial about whether the physically charge ladder contacted the wire or whether the electric Arcing scientifically proven accepted phenomenon "arced.” is a impulse through that allows an electric conductive molecules. Plaintiff’s nobody ionized and moist to transmit the air to another object. by pollution It is often caused that breaks down air circumstances, expert testified that under ideal electricity knows how far can arc. He further that in testified air, accident, day electricity like that on the Additionally, expert testimony arcs farther than in other conditions. presented was the ladder could not have touched the line physical because there were no marks on the ladder indicative of such contact. not, however, Plaintiff did contend that the arc was thrown be- Rather, Appeals suggests. tween three and seven feet as the Court of the evidence simply showed that the base of the ladder was three to Power Co v Consumers Opinion op the Court nearby juryA the wire to the ladder. found defen- plaintiff negligent $750,000. and awarded The dant plaintiff’s jury decedent was not concluded that negligent. comparatively Appeals ruling reversed, as a mat

The Court of ter of law that failed to establish that duty a of care. The defendant owed the decedent Court characterized the accident as a "fortuitous contingency circumstance, not a antici opinion per pated.” Unpublished curiam, decided (Docket 118323), May p 22, 1991 2. We No. granted appeal. leave to

II involving negligence Generally, an is conduct requisite unreasonable risk of harm. The elements negligence of a cause of action are that defen- legal plaintiff, duty dant owed a to the legal duty, defendant breached or violated damages, plaintiff suffered and that the breach damages proximate cause of the suffered. was a Michigan, 386 Mich Roulo v Automobile Club of (1971). present case, In the we 324; 192 NW2d 237 only required whether defendant are to determine plaintiff’s decedent. owed legal questions whether an actor has element govern obligation unreasonably endanger as not "to so his actions person property 251, 261; Dalman, 379 Mich Clark v others.” (1967). As Prosser & Keeton wrote: NW2d words, question "duty” In other is a of whether top feet from the line. The exact distance seven ladder was expert However, is, course, defendant’s from the line unknown. twenty-seven inches at if foot ladder moved six testified that Nevertheless, bottom, top. this it would move 32.4 inches at the jury. dispute properly presented to the factual (1992). 440 Mich 893 443 Mich 445 450 Opinion op the Court obligation for the the defendant is under negli- particular plaintiff; and in benefit of the cases, gence form to the duty always the same—to con- legal standard of reasonable conduct light apparent & Kee- in the of the risk. [Prosser (5th ed), 53, ton, p Torts § 356.] exists, ex- determining whether a courts duty factors, including wide variety amine of the and the relationship parties foreseeability risk. Buczkowski v McKay, 441 nature and (1992). 96, 100; impor- Mich 490 NW2d 330 Most must exist a tantly,4 duty for a to arise there relationship between the sufficient in Samson v the defendant. As this Court stated Inc, Saginaw Bldg, Professional 393, 406; (1975): 224 NW2d 843 act, require the actor to some sort of rela- [T]o

tionship must exist between the actor and the party society other sufficiently servation of the events which unfold on the which law or views as strong require to more than mere ob- part It the defendant. relationship is the fact of existence of this Usually which the law refers to as a duty part on the of the actor. Clearly, relationship between the utility impose and the decedent was sufficient under the circumstances. It is well estab- particular lished that those who undertake activi- ties or enter into special relationships assume a distinctive procure knowledge experi- regarding person, thing.5 ence For activity, example, a landlord must inspect premises 4 Buczkowski, supra, thorough See for a more discussion of the determining variables examined when duty whether defendant owed a plaintiff. to the 5 (2d See, ed), 16.5, generally, Harper, Gray, pp James & Torts § 397-415; tive, Membership Coopera Levi v Louisiana Southwest Electric 1989). (La, 2d 1081 So Consumers Power v Opinion op the Court keep Samson, it in a safe condition. supra; Lipsitz Schechter, 685; Mich (1966); p Torts, 2d, NW2d 1 § 360, 2 Restatement Physicians keep reasonably 250. must abreast of Gorrilla, current in their advances field. Koch v 1977). (CA 6, 552 F2d 1170 Manufacturers must diligently inspect products their to discover lurk ing dangers. Livesley Corp, v Continental Motors (1951); 434; 331 Mich 49 NW2d 365 2 Restatement pp Lastly, Torts, 2d, comment, § 395, 326-332. a passengers carrier owes to its of discover ing all detectable defects. Trent v Pontiac Trans portation Co, Inc, 586; 281 Mich 275 NW 501 (1937).

Similarly, compelling mandate a reasons company employs energized that maintains and power lines exercise must reasonable care to re- potential practicable. First, duce as far hazards as possesses energy inherently dangerous electrical properties. companies pos- utility Second, electric expertise dealing phenom- sess in with electrical delivering electricity. Lastly, although ena and a person charged reasonable can be with the knowl- edge of certain fundamental facts and laws of part expe- nature that are of the universal human dangerous properties rience, such as the of elec- tricity, Koehler v Detroit 383 Edison Mich (1970); 231; Keeton, NW2d Prosser & supra, pp Harper, Gray, § 32, 182-184; James & (2d ed), pp 16.5, § Torts that properties requiring expertise it 405-408, is well settled possesses

electricity inherently dangerous dealing

in with its phenomena. pursuant duty, Therefore, to its a power obligation has an inspect repair wires and other instrumentali- remedy ties order to discover and hazards and defects. important determining

Another variable 443 Mich 445 op Opinion the Court foreseeability— a owed whether defendant the actor’s conduct it "whether is foreseeable . . . to the victim of harm a risk may create Alfono, 425, 439; 254 NW2d Moning Samson, supra, (1977). this Court further foreseeability element: explained the upon whether Foreseeability depends . . . given anticipate that a could reasonable man not a But conditions. might occur under certain event may be foreseeable that an event the mere fact to take impose duty upon the defendant does accordingly. The which event kind of action some he sort of might pose must some perceives occur person property or his injury risk of another required to act. may be [Id. before the actor 406.] Samson, could person reasonable paraphrase

To electro- painter that a could be anticipate certainly to, or came close if aluminum ladder cuted his electric touched, frayed corroded and pitted, Furthermore, could con- person a reasonable wire.6 cause seri- that this event would conclude fidently painter. death to the injury ous or are transmitting electricity in engaged Those sur- anticipate ordinary use the area bound to safeguard rounding appropriately the lines and to whether The test determine the attendant risks. the owed is not whether duty was act from the anticipated particular should have it resulted, the but whether should injury which might that probability injury have foreseen the on activity result from reasonable done Here, business, work, pleasure.7 or premises for age, expert of the it was 6Plaintiff’s testified that because wire’s "pitted, and broken.” corroded 7 injury plaintiff A the mechanism of need establish specific only necessary anticipated in detail. It is foreseeable or Power v Consumers Opinion Court Consumers Power should have realized that home- generally may owners maintain their homes. This washing cleaning troughs, repair- include windows, ing cleaning gutters, roof, certainly, and, painting. Considering proximity of the uninsu- primary (roughly lated wire to the house fifteen twenty-four horizontal feet and vertical feet from ground), it was foreseeable that someone mak- ing repairs injured by dilapidated could be wire. alleged fact, Consumers Power’s failure to con- inspections duct routine wires, or conduct- ing inspections such in a careless or deficient reasonably manner, made it foreseeable that company’s aged repair failure to discover or the dam- injury

wires could result in or death to persons using an aluminum extension ladder in proximity Having to the wire.8 found a sufficient relationship and a harm, foreseeable risk it contrary principles would be to the rules and previously by announced this Court to hold that prop- Consumers Power owed decedent no inspect erly and maintain its wires so as to reason- ably safeguard against injury or death.9

Where service wires erected and maintained injury the evidence establishes that some to the was foresee- anticipated. or Co, able Mich 250 to be See Clumfoot v St Clair Tunnel 113; (1922); Chevrette, 482; NW 759 LaPointe v 264 Mich (1933). NW 8Although judge reasonableness, we do not its in its answer plaintiff’s interrogatories, inspected defendant stated that it the wires in March four injury. months before Mr. Schultz’ fatal expressly holding, Without implicitly so this Court has ruled that utility companies equipment general duty public owe a to the to maintain reasonably in a recently, Laney safe condition. Most 180; (1983), Consumers Power 341 NW2d 106 we held applicable public utility standard of care of a that maintains electric lines is "one of reasonable care measured what a person company engaged careful maintaining elec tric lines would do under the same circumstances.” Id. at 186. appropriate care, In order to have addressed the standard of we first implicitly utility company found that duty the owed decedent a care. Mich 445 443 454 Opinion of the Court powerful company carry utility elec- electric an coming persons into current, contact that so tric likely proximity to suffer to them are or injury death, must exercise the serious danger. protect public from to care reasonable pru- by required degree used is that of care industry, persons like conditions under dent dangers proportionate involved, to to and guard pated reasonably against or antici- foreseeable contingencies. Laney Co, v Consumers (1983). 180, 186; 106 Electric guaran- 341 NW2d 418 Mich companies ordinary to care must exercise kept equipment safe is tee that Although a rule of we do not follow condition.10 inspect liability, duties defendant’s absolute merely remedying repair more than involve and brought actually to its atten- conditions defective tion. companies utility must rea-

Our conclusion inspect repair sonably com- electric lines and their foreign jurisdictions.11 plies decisions with the Lighting Long Co, 372; 40 NY2d Miner v Island (1976), representative of courts’ is 353 NE2d 805 plaintiff, There, while of the issue. treatment inadvertently preparing tree, con- to trim an oak 7,620-volt owned uninsulated electric wire tacted a 10 public companies Long ago utility owed the this Court held inspection supervision duty safeguarding by and its reasonable "the by showing installa . . this was not met of suitable wire . and Telephone 230 Mich .” v Citizens alone . . . Mueller tion (1925). explained 177; 203 129 The Court further "[r]eason NW required. integrity supervision to of the wire was maintain able The repair by repair purpose inspection is need of and to discover damage property, injury persons prevent agency wear human as well as wanton interference inclusive of 178. also v the elements.” Id. at See Weissert and interference (1941). Escanaba, 443; 299 NW 139 11 Co, 841; 63; See, e.g., 56 265 P2d 862 & Gas NJ Black v Public Service Electric (1970); Angeles, Aguirre v 46 Cal 2d Los A2d (1956); (Minn, 1980); Ripley, 295 Rich Mountain NW2d 659 Vieths (1992). 1; Revels, Cooperative, Inc v Ark SW2d Electric v Consumers Power Co Opinion of the Court jury and maintained the defendant. A rendered plaintiff. Appellate verdicts in favor of the judgment, Division reversed the and dismissed the complaint ground on the that the failed to duty. holding establish a breach of the power company had an affirmative to exercise operation reasonable care in the and maintenance power Appeals lines, its the New York Court of emphasizing reversed, First, number of factors. proximity the accessibility court looked at the power public. lines to the The court noted high-voltage strung "where lines were be- spaced closely private tween residences, the risk to highest be foreseen was of the order; thus, the corresponding duty devolving upon power the com- pany equally great.” must be considered Id. at 379. Second, neither the condition nor the location of inspected thirty years, the wires had been in over "thereby leaving instrumentality a lethal in an could, area where it did, and of course cause Accordingly, enormous harm . . . .” Id. at 380. New York Court of Appeals Appel- held that erroneously late Division dismissed the com- plaint.12

III negli- Defendant further claims that it was not gent power because the location of the lines ex- requirements published ceeded the clearance Safety National Electric (nesc) Code 234-4, Table requires which a three-foot horizontal clearance 12 Although Appeals may erroneously Court have consoli independent negligence action, dated elements of a cause of it none power company theless held that a has an affirmative to reason ably operate power Miner, By discussing and maintain its lines. we do negligence. intend to eradicate the distinct elements of See Buczkowski, supra. Mich Opinion of the Court buildings.13 adjacent It is lines and between place- present case in the uncontroverted guidelines five-fold. exceeded ment of Defendant wires guidelines argues the nesc that because design, appropriate for the standards delineate operation conductors, maintenance, conformity of electric negli- proscribes the standards with agree gence we of law. While as a matter industry practices are that custom defendant they care, are not issue of due relevant dispositive the respect duty. with industry-wide Compliance an the nesc or with a claim of defense to is not an absolute standard may care, negligence. it of due be evidence While industry conformity is not conclu- standards negligence question a where reason- the of sive on industry person engaged the would have able precautions the under circum- additional taken stances. Owens Corp, 414 Mich v Allis-Chalmers (1982); 2 Restatement 413, 422-423; 326 NW2d p argument 2d, § 295A, An on basis Torts, 62. goes ques- industry therefore, standards, of duty of its a defendant breached tion whether ordinary existed. If care, not whether a plaintiff prudent company jury that a can convince auxiliary mea- have taken would required industry beyond standards, those sures liberty clearly jury to find that then the defendant industry’s regardless duty, breached its Supreme guidelines. Court of As the explained: has Oklahoma require- "Although compliance safety with such itself does not of establish ment defendant [sic] negligence inas- free from require- regulation is minimum much as such the dictates of reasonable to conform with ment Comm, Michigan 1679. Service Order No. See also Public Consumers Opinion of the Court care, apart regulation from unusual conditions guide measuring stands as a reasonable care.” due standard,

Assuming this is the it is a mini- only mum standard must have the opportunity non-compliance to show or that unu- sual do requiring higher circumstances exist [a standard of v Public Service care.] [Rotramel 1975), (Okla, 546 P2d 1017-1018 partially quoting Oklahoma, Rudd v Public Service Co (ND Okla, F Supp 1954).] express language, guide- Second, its the nesc only safety lines set minimum standards. The provides: introduction to the nesc purpose practical of these rules is the safe guarding installation, persons during opera tion, or supply maintenance electric and com equipment. munication and their lines associated They provisions contain minimum considered nec essary safety public. for the and the employees They specification are design not intended as a an [Emphasis instruction manual. added.][14] company negligently, although Whether a acted it complied industry customs, with or standards is by proper determined the trier of fact under in- by structions the court. it Because not the the province question Court, of this we do resolve defendant

whether used reasonable care roughly it feet, the when installed wires fifteen six inches from the Osmond The residence. evidence mpsc similarly states: requirements spacings, The rules state the minimum for

clearances, strength ample soacings and of construction. More greater strength may and clearances or of construction be provided requirements neglected doing. if other are not in so 443 Mich Opinion Cavanagh, C.J. supports jury’s presented the conclusion trial negligently in this Power acted that Consumers power however, conclude, that a We case. power reasonably duty lines so install its a has inju- public safeguard from foreseeable the as to ries.

IV Appeals Accordingly, reverse the Court we has a find Consumers decision and general protect members of the danger power public from its from foreseeable verdict and the trial court’s lines. We reinstate Appeals to resolve case to the Court remand the previously raised, not addressed but the issues this Court. Boyle, JJ., with

Levin, Brickley, concurred and Mallett, (concurring). agree C.J.

Cavanagh, I duty analysis majority’s and its conclusion to avoid a defendant owed positioning maintaining negligent conduct separately, however, be- lines. I write its primary my view, cause, cause plaintiff’s injury not, as in this case was suggests, majority failure to detect the defendant’s position- repair frayed wire,1 but, rather, a instance, majority states: For certainly anticipate person a could reasonable [A] painter if his aluminum ladder came could be electrocuted to, touched, frayed pitted, electric wire. corroded and close or Emphasis [Ante, p added.] 452. view, just my painter if his aluminum be as electrocuted would to, touched, perfectly uninsulated maintained came close ladder carrying electricity. 4800 volts of wire v Consumers Opinion by Cavanagh, C.J. preex ing power line to a of an uninsulated close isting two-story wooden house. I my view, In the wire had the failure to maintain position than the less to do with this accident focusing the defen- the wire. Instead of more on position- care in dant’s to exercise reasonable ing power majority line, fo- its uninsulated "duty prop- primarily cuses on the defendant’s erly inspect and maintain its wires so as to reason- safeguard against p ably injury Ante, or death.” added.) danger (Emphasis 453. power company’s created inspect

failure to and maintain sug- arcing. The evidence the wire gests this case is "dilapidated capable frayed that a or wire” is throwing an arc about one inch.3 That that, addition, majority given the wire states the closeness of house, making of the "it was foreseeable that someone and size repairs Ante, injured by dilapidated p (Empha- 453. could be wire.” added.) making Again, person repairs I that a could sis would submit carry- just injured by perfectly maintained uninsulated wire be as ing electricity. 4800 volts of Finally, majority states: alleged in- "Consumers Power’s failure to conduct routine wires, spections careless or deficient that the wires could result conducting inspections in a such manner, made it foreseeable repair damaged company’s failure to discover or injury persons using an or death to proximity [Id., p extension ladder in to the wire. aluminum 453.] sentence, Although to wire is all that made meaning of this I am unsure about the intended suggests that it that the condition of the uninsulated the extent proximity dangerous, working I in its would disagree. twenty-seven peak. approximately feet tall at its The house one is in ideal circumstances. The record shows that no This are less knows how far a than ideal. Because no one knows line can arc when the circumstances how an arc can be thrown in far circumstances, Appeals that a claim ideal the Court of said less than being further than one inch is outside on hit an arc thrown based Mich 445 Opinion Cavanagh, C.J. possibility very indeed, far; to me that the it seems danger to that arc add little of a one-inch would perfectly necessarily existing maintained with a electricity. carrying 4800 of wire volts uninsulated resolving case, Therefore, focus less in this I would on wire and more its the condition of the on position.

II plaintiff two-story house that wooden attempting paint of the fatal to at time was strung long existed defendant accident before through positioning the area. In its lines its lines, pated have antici- the defendant should might attempt un- that someone painting home, that Hale v Duke usual task App Co, and, 202, 204; 252 SE2d 265 Power NC (1979), per- given height, person a its might forming a task use ladder of sufficient permit painting peak. length to its rule, compa general telephone electric and As maintaining charged highly others elec nies and legal duty, irrespective tric wires owe the relation, in every person toward who contractual occupation pursuit of a in a the exercise lawful or be, legal right he for place where has a whether business, convenience, in pleasure, may come or wires, are with the to see that such wires contact properly placed safety reference with to the The rule persons properly and are insulated. such that dangerous[4] persons controlling so and subtle permitted to agency electricity an as should not be effects, regard specu- probable to its or theorize possibility, and of known scientific that the defendant owed the realm no against guard to the such occurrence. a fortuitous voltage power high stated It has been uninsulated line "[a]n deadly danger carrying considered the most current must be one of known Black v Service Electric ous contrivances to man.” Public & (1970). 72; Gas 56 NJ 265 A2d 129 v Consumers Opinion Cavanagh, C.J. affecting human results upon the chances of late and common life, reason in accord with only insulated or either must be The wires sense. placed beyond danger line of contact ex may reasonably be they persons going where 2d, 122, pp Am Jur pected go. 332-333.][5] § [26 case, minds reasonable of this the facts Given neg- the defendant about whether could differ ligent position failing or to the wire to insulate height so as to from the house distance6 it contact the risk of inadvertent eliminate reduce or proper length permit its a ladder of sufficient agree Accordingly, I with would maintenance. majority Appeals should decision the Court of remanded should be that this case reversed and be defendant’s consideration that Court for remaining issues.

Levin, J., Cavanagh, concurred C.J. (stating CJS, pp Electricity, "[a] 1057-1059 § See also electricity antici engaged must company power pate in the transmission expected may against be guard events which though negligence, occur, even to do so is and its failure occur”). anticipated injury which did not have could edge from the sixty-foot that runs easement owns a The defendant Chapin Road. The question of the North to the middle the house in of distance between measured ample away edge of the road edge and the the house reveals, appendix there is fifty approximately As the feet. further the wire located to have the easement room within road. to the the house and closer from 443 Mich Opinion Cavanagh, C.J.

APPENDIX ml Power Consumers v Opinion Dissenting Griffin, J. (dissenting). from This action stems Griffin, plaintiff’s decedent, Duane the electrocution paint assisting his Schultz, a friend while who died using near defendant aluminum ladder house an Company’s 4,800 volt transmis- Consumers personal Schultz, trial, Alice At sion lines. representative Schultz, of Duane of the estate negligent alleged in three that defendant (1) failing properly respects: and maintain in to (2) installing primary repair power line, in residence, and from the unsafe distance wire at an (3) arcing failing the hazard of to warn of power failing provide insulation of effective Appeals concluded, a matter as line. The Court plain- no law, owed that defendant finding upon that "the evidence of its tiff the basis circumstance, not a contin- a fortuitous establishes Unpublished opin- anticipated.” gency (Docket May per 22, 1991 No. curiam, decided ion 118323). persuaded the rea- are Because we Appeals sound, soning employed by is the Court of opinion majority for reversal. dissent from we I companies liability general, for public injuries personal damages or to for negli- governed patrons the rules of their 443, 452; gence. Escanaba, 298 Mich v Weissert (1941). there can It is axiomatic NW legal negligence there is no where no actionable be question Duty duty. the defendant of "whether ais obligation for the benefit is under particular requires plaintiff” the court determining whether variables1 review several 101, 4; McKay, n 490 NW2d In Buczkowski (1992), Court noted: this 464 445 443 Mich Opinion Dissenting Griffin, " imposes . . . individuals relation between 'the legal obligation upon the benefit of for one a ” 1, 22; 312 Dozorc, 412 Mich Friedman other.’ NW2d 585 (1981). depends duty question exists whether a The foreseeability: part it was foreseeable whether on may a risk of create conduct that a defendant’s harm to another person the result of and whether intervening foresee- causes was that conduct able. McMillan 61-62; Hwy (1986); 46, Comm, 426 Mich v State 332 McKay, Buczkowski v 393 NW2d (1992). 96, 101; 490 NW2d 441 Mich Foreseeability indeed been a determinative has ascertaining duty, thereof, lack or a factor in explained previous role was cases. Its electrocution Co, Clair Tunnel in Clumfoot v St this Court (1922): 113, 116-117; 190 NW 221 Mich may it must recover In order proba- natural and appear injury his was the negligent act or omission of consequence of a ble that consis- the several variables Dean Prosser described duty tently go including: foreseeability injury, of as of a court’s determination to the heart harm, degree certainty injury, between the conduct and closeness of connection conduct, preventing policy of attached to the moral blame and, harm, finally, consequences of the burdens and future resulting liability duty imposing for breach. Prosser and the (5th 359, 53, ed)], p n 24. § & Keeton [Torts generally question question duty law is whether a exists 714; Mutual Ins for the court. Smith v Allendale (1981). explained: Court 303 NW2d 702 The Smith determine, law, a matter of what It for the court to as relationship present give rise to must be for a characteristics a may liability. duty It is for of which result in tort the breach jury the facts in evidence establish to determine whether Thus, jury relationship. decides the elements of that only question it determines whether in the sense that relationship proofs the elements of a which establish give already rise to a as a matter of court has concluded law. [Id. 714-715.] v Consumers by Geippin, J. Opinion Dissenting an under the circumstances which

the defendant reasonably to ought prudent person ordinarily possibly occur might anticipated foreseen have act or omission. a result of such as is, a there applied Was . . . The test to be con- probability of human likelihood or reasonable right to persons who had a by tact with the wires be ble? possi- such contact was place from which foreseen or so, danger have been If should anticipated by the defendant. foot was since Cima of instances

In a number decided, recognized courts have Michigan anticipate only to "are bound companies power and accidents circumstances such combinations may as they therefrom injuries and Weissert, su- .” . . . happen likely forecast as pra at 453. 421; 136 Largess v LF App 1 Mich

In Dees injuries (1965), sustained NW2d 715 into con- working on came he was a crane when line carrying transmission power with a tact Detroit Edi- Defendant 24,000 electricity. volts maintaining was on negligence based alleged son’s height of lines, to a elevated transmission power of 35 height to a sagging and poles at the 37 feet oper- the crane poles where between feet The trial court covering. dielectric ating, without directed ver- motion for a defendant’s granted affirmed, stating: dict, Appeals the Court of right had a Company Edison that the It is clear in the area lines maintain transmission construction, these wires were it is also clear meaning public service within insulated act. The by voltage wires were insulated high It contact. any foreseeable space from feet of air negligence construed as cannot be therefore the Edison a dielectric Company not also add did in the anticipation of construction insulator 443 Mich Griffin, Dissenting Opinion require facts to allow additional area. We would question for a test as the trial court to submit fact. The law does not negligence to a trier of maintaining transmission require those circum- anticipate every possible fortuitous lines to stance that might injurious contacts with cause Emphasis 427. power lines. those added.] [Id. Co, In Gunn v Edison Sault Electric (1970), judgment App of no 43; 179 NW2d 680 nonjury in a trial was affirmed cause of action Appeals. action for Gunn involved an the Court seaplane passenger in chose the death of a who regular approach pattern and col- not to use the The defendant’s electrical wires. lided with the argued representative the elec- of his estate negligent failing to in have the tric lines and type was paint poles with or some marked either Finding no clear error in the of reflectors. ruling, trial court’s the Court stated: complied law is with when an electric or "[T]he engaged telephone company or others in the trans- electricity provide protec- of a mission or use tion as will that such guard against contingency safely reasonably anticipated. to The extent of is be in the duty the terms or standard of care is measured foreseeability injury of from the situation safeguard against created. There is no occurrences contemplated. against to expected that cannot be anticipate guard A failure to happening a which would not have arisen exceptional or is but for unusual circumstances require negligence, not maintaining power nor does the law those anticipate transmission lines to might every possible fortuitous circumstance that injurious cause contacts with those lines.” [Id. 2d, 43, 46-47, quoting p from 26 Am Jur § 252.] App 332; 49 Mich Co, Edison Carr v Detroit (1973), plaintiff’s decedent was NW2d Power Co v Consumers Griffin, Opinion by Dissenting on which he was electrocuted when crane working con- lines at a contacted overhead Citing Appeals Dees, the Court struction site. of the defen- verdict in favor affirmed directed dant: engaged program in had While Edison industry re- people in the construction educate dangers working proximity in close

garding the wires, undisputed it that Edison had to overhead used at knowledge no a crane was to be question. in Since the construction site on the date of the use of lines, failed to inform Edison contractor equipment no proximity in close part arose inform the contractor utility’s on the working of the hazard of near employees or his lines, hazard of which overhead transmission [Carr, supra, admittedly they were all well aware. 340.] P

Also, Edison Ransford Detroit (1983), plaintiff’s App 537; 335 NW2d result of electrocution when died as a decedent airplane flying he was be- model wire-controlled entangled wires of another control came airplane planes came

and the wires one line. an electric transmission into contact with negligent plaintiff argued in fail- Edison danger ing involved husband of the to warn her failing power lines, in contact with uninsulated only stringing lines, the lines and-in insulate the thirty-three ground. The trial court above the feet granted ver- motion for directed the defendant’s stating: Appeals affirmed, dict, of and the Court in the case established testimony instant [T]he years prior power lines were installed that accident, essentially the land was to the when hold, pasture as a matter open and farmland. We law, power of the time installation that at 443 Mich 445 by Dissenting Opinion Griffin, proba- lines there was no "likelihood or reasonable bility human contact” with them. Clumfoot v St Co, addition, supra, p Clair Tunnel 117. In plaintiff’s proofs conclusively established that in any view the way. Detroit Edison had notice model lines was obscured proofs Her of any were devoid evidence that wire-controlled airplane judgment, demonstrations. In our this case involves a "fortuitous circumstance” not foreseen Edison. LF See Dees v Largess supra, p Viewing 427. in the evidence light plaintiff, most favorable to we find that Detroit Edison breached no owed to plaintiff’s decedent. [Id. 546.] The fortuitous circumstances that characterized these cases likewise in prevail present situa- Throughout tion. it many years since was constructed defendant has maintained 4,800-volt overhead electric line in this same loca- tion. The lines were measured at 24 feet inches (vertical distance) above the ground and feet 6 (horizontal distance) inches from away the house Mr. owned and Mrs. Osmond. The aluminum ladder involved the accident was measured to Osmonds, be 27 feet in length. The who were decedent, friends of the both testified they had moved to this address in 1977 they and that had never contacted defendant Consumers Power Company complain about the transmission lines in front of the house. The record is devoid of testimony anyone had ever called defendant concerning this line for reason before this incident.

Plaintiff argued defendant should have been aware that painting being house was under- taken because a Consumers Power Company em- ployee working pole on a near the house two days before the accident and should have noticed Consumers Power Griffin, J. Dissenting Opinion pump jacks up next to the there set that were painting. preparation However, for the house testimony any painting was there was that no particular day ongoing or that alumi- on that property or in num on the ladders were Osmond yard the home the the front Osmond when working pole. employee on the Defendant expect the contact could foresee days power that two later. with its lines occurred fortuity the circumstances is reinforced plaintiff’s theory Mr. case. Osmond the balancing that, the ladder while he was testified position, came assist Duane Schultz a vertical grabbed the from the other side. him and ladder bright instant, aware At that Osmond was top of the ladder had He that the flash. testified primary before flash. the wire the not contacted expert the electrical cur- theorized that Plaintiff’s remaining the had the distance from rent primary arced But even wire to ladder. ordinarily, expert plaintiff’s that, electric- testified ity 4,800-volt cannot arc distance from a line three-quarters greater of an inch. Plaintiff’s than upon expert information, based a reason- had no certainty, electricity could, scientific that able under case, arc further. of this circumstances Assuming plaintiff’s theory true, to be there was concluding that the electric- scientific for no basis ity jumped to the vertical ladder. from wires knowledge alumi- no actual an Defendant had being vicinity of its used in num ladder was certainly no it had reason line and anticipate a 27-foot aluminum ladder would plausible theory, according placed, to the more be high overhead wires. inches of its 24-foot within assump- implicit disagree majority’s We reasonably foreseeable. accident was tion this 443 Mich Dissenting Opinion by Griffin, II recognizes majority degree "[t]he While the that required prudent persons by of care is that used in industry,” significance it the safety minimizes the by industry

standards the utilized that were by exceeded the defendant three to five times. p compliance safety Ante, 454. Such with stan- although necessarily dards, strong determinative,3 is a mitigating against imposition

factor the duty. supra Dees, See at 427. supra Buczkowski, 101, this Court noted although foreseeability that is often the first factor determining in be examined the existence of a duty, may usually be, "other considerations important.” are, impose protect Hence, more the Court refused to duty upon retailers of ammunition "to general public a member from the criminal act of a customer” even when the cus- tomer was intoxicated at the time of sale of the part Legis- ammunition, id. at in because the many regulating lature "has enacted statutes use of . . . .” Id. words, firearms at 106. In other impose the Court declined to where Legislature had refused to do so. Id. at 109.

Similarly, case, the instant defendant not only by appli- met but exceeded several factors the governmental safety cable standards. Rule 1679 of Regulations Governing the Rules and the Con- Operation struction, Maintenance, and of Electri- Supply by cal Lines, and Communication issued Michigan the that Commission, Public Service indicates acceptable horizontal clearance is three (for volts), only 4,800 feet lines of one-fifth the Company actual distance Consumers Power in- (15 away stalled this line from the house feet 6 Corp, 413, 423; See Owens v Allis-Chalmers 326 NW2d (1982); Torts, 2d, 288C, p 2 Restatement 39. § Power Co v Consumers Opinion Dissenting Griffin, inches). line at a Thus, installed its defendant greater than five times from the house distance required by Furthermore, the code. distance Safety was modi- Code the National Electric respect re- horizontal clearance to the fied requires quirements. the distance That code electric lines constructed five feet for should be provided date, three feet as instead of after the more Thus, in accordance with 1679. rule standard, location of defen- national recent dant’s line house from this is three times farther required. than is 4,800-volt lines should be Rule 1679 states (if "[d]riveways ground over

20 feet above expert garages”), more or as defendant’s residence precisely (due adjustment) 21.29 to an calculated driveway north side on the There is a feet. provision applica- home, and thus that Osmond the National 1981 version of this case. The ble to Safety that the vertical states Code also Electric question, line in 20 feet. The should be clearance ground. course, than 24 feet above was more of crossings,” "highway rea- one can where Even at large sonably numerous activ- vehicles and foresee height only requires feet, 22 ities, the state height line at of defendant’s feet less than two this location. See 460.554; 22.154. MSA MCL allegation plaintiff’s respect that With properly insulated, it should lines were electric more line was electric that defendant’s be noted point; ground the contact at 24 feet above the than governed consequently, the ration- case is this the electric that hold that decisions of those ale line was properly law. See a matter of insulated as supra Edison Detroit 427-428; Dees, Williams App 559, 575-576; 234 NW2d Co, Mich (1975). Appeals Fifth for the States Court

The United 443 Mich Dissenting Opinion Griffin, regulatory compli- Circuit addressed the issue of ance in connection with the element of foreseeabil- ity Mosby v Southwestern Electric Power 1981). (CA 5, 659 F2d 680 The decedent was elec- being trocuted when a cb radio antenna erected at home mobile contacted the defendant’s overhead reversing jury grant- In electric line. verdict and ing judgment the defendant’s motion for a not- withstanding verdict, the court stated: litigants acknowledge key issue is foreseeability. liability Texas the of an electric company overhead injuries resulting for from contact with power lines is based on the traditional concept electric negligence requiring proof anticipate could in-

jury resulting from its conduct. only Plaintiffs have shown that a fatal accident range possibilities. was within the As [Houston Lighting Brooks, & Power 32; Co v 161 Tex shows, (1960)] SW2d 603 requires foreseeability saying more. Note that we are not compliance Code, with the National Safety standing Electrical alone, power frees a company from liability. As points brief, defendant correctly out in its code compliance many is one of the facts in this case swepco negating a conclusion that should have anticipated contact with its line. Here there was undisputed evidence that the line properly designed and met the requirements code clearance even after the placed mobile home was beneath it. The hazard shown to be aware of which the company was only danger was the universal of contact with electric lines. [Id. 681-683.] imposition duty upon The of a the defendant present under the certainty circumstances eviscerates the legislative judgment codified in the safety impose liability state and federal codes. To present situation, the where the electric com- v Consumers Opinion Griffin, Dissenting requirements yet complied pany all code has guard against expected the un- to is nevertheless with a aluminum ladder use of an foreseeable height length wires, the is that exceeds the imposing liability. equivalent to strict

III particularly imposition unwar- of a The given case, the decedent’s in the instant ranted danger suffi- the fact that the awareness of activity perform that the to cient room existed previously injury. held Court has This caused dangers pre- knowledge plaintiff’s of the that a wires, a suffi- combined with electrical sented relieved the area, factors that work were cient utility plaintiff. In Koehler v of a 224, 227; 174 Co, plaintiff, NW2d Detroit Edison (1970), ironworker, into came an riding power on a he was lines while contact with crane. The to a in turn was connected cable that ground level, and feet above 30 to 35 wires were swung the crane the wires as struck the the cable near court lines. The trial that the defendant in favor of a verdict directed appeal. ex- Koehler Court affirmed on plained: part of Detroit negligence on regard to With case from

Edison, testimony in this there is no operation carried jury could find which a dangerous of De- because the crane was on with testimony is to line. The distribution troit Edison’s the effect that that room which there was sufficient fully understood work; ironworkers importance and the danger from electric wires them; was no reason there away from staying or to alert Detroit the line expect trouble from Koehler, used; to be that a crane was Edison Beard, were aware Pankey, and others 443 Mich Dissenting Opinion by Griffin, J. requested existence of the line and could have they Detroit Edison to line if insulate the consid- step taken; it necessary ered that such a be apprised opera- that Detroit Edison was not tion or requested any precautions. to take building mere fact that Detroit Edison knew a that, under construction near its line and time, from time being mobile cranes were brought upon premises in be used construc- work, not, alone, standing tion upon late condition. would create a charge, Detroit Edison to remove the insu- line, parties notify dangerous of a agree finding We with the of the trial judge negligence part there was no on the Carr, Detroit Edison. 231. supra.] See also [Id. The aluminum ladder used the decedent had warning signs. "Danger, two for The first read: Watch electricity,”

wires, This ladder conducts warning the second indicated: "Caution: Electrical hazard, shock Metal ladders should not be used may where contact be made with electrical cir- cuits.”

The uncontroverted evidence demonstrated that clearly the electrical lines were visible. Both Mr. they and Mrs. Osmond testified that knew the clearly there, lines were the lines were visi- they ble, lines, were fact electric that a person seriously injured could be killed or if an aluminum ladder contacted an overhead electric they touching line ladder, while were and that they never warned the decedent about the hazard "[j]ust anyone because with common sense knows you just play power.” don’t around with plan-

Mr. Osmond testified that "there was no ning begun” before the work had and that neither he nor the decedent walked around to see if there they were obstacles around the house before painting. started Both Mr. Osmond and the dece- dent were aware of the electric lines. Mr. Osmond Consumers Griffin, Dissenting Opinion setting explained were and the decedent that as he painting preparation pump jacks up for the "Boy, project, stated, those lines look the decedent that he never Mr. testified close.” Osmond awful presence of the about Mr. Schultz warned thought because, he "I electrical wires overhead thing did, I that that same know basic—the would you supposed lines.” electrical to touch weren’t danger an case was in the instant involved danger elec open of as the one. Just and obvious knowledge, tricity it is also common "so is common carrying knowledge electric line or wire dangerous.” ity v Illinois Genaust (1976). Michigan 456, 469; 343 NE2d Ill 2d recognizes rule the well-established law case liability product to warn is no cases there open dangers Glitten See and obvious. that are of (On Rehearing), Doughboy berg (1992). Similarly, the Koehler 393; 491 NW2d present recognized, context, in the Court danger wires from electrical awareness should, utility circumstances, relieve certain under dangerous condi warn compelling justification to aban- There is no tion. precedent. . this well-reasoned don

CONCLUSION affirm above, would we set forth the reasons For Appeals. the Court decision of Riley, J., Griffin, concurred

Case Details

Case Name: Schultz v. Consumers Power Co.

Court Name: Michigan Supreme Court

Date Published: Aug 31, 1993

Citation: 506 N.W.2d 175

Docket Number: 92313, (Calendar No. 11)

Court Abbreviation: Mich.