WILLIAMS v THE DETROIT EDISON COMPANY
Docket No. 19452
63 MICH APP 559
August 25, 1975
234 N.W.2d 702
ALLEN, J.
Leave to appeal denied, 395 Mich 800.
OPINION OF THE COURT
- PRODUCTS LIABILITY—TORTS—CONTRACTS—IMPLIED WARRANTY—ELECTRICAL SERVICES.
Electricity is a service rather than a good, but the doctrine of implied warranty in tort applies to the installation and delivery of electrical services. - PRODUCTS LIABILITY—TORTS—CONTRACTS—BREACH OF WARRANTY—STRICT LIABILITY—UNIFORM COMMERCIAL CODE—PRIVITY OF CONTRACT.
The Uniform Commercial Code is inapplicable to a tort action alleging a breach of implied warranty; privity of contract is an irrelevant consideration in a case based upon a tortious breach of warranty or strict liability in tort. - PRODUCTS LIABILITY—TORTS—CONTRACTS—BREACH OF IMPLIED WARRANTY—ELECTRICAL SERVICES—ELEMENTS OF CLAIM—PROXIMATE CAUSE.
A plaintiff in a suit for tortious breach of an implied warranty of electrical services must prove that there was a defect in the electricity at the time it left the manufacturer and that the defect was a proximate cause of plaintiff‘s damages. - PRODUCTS LIABILITY—TORTS—CONTRACTS—STRICT LIABILITY—ELEMENTS OF CLAIM—NEGLIGENCE—DEFECTIVE PRODUCT.
A plaintiff in a strict liability in tort suit must prove the presence of a defect and that the defect caused plaintiff‘s injury; a defendant‘s negligence is irrelevent, but the defect must render the product unreasonably dangerous to plaintiff and must be present when the product left the hands of the seller or manufacturer.
REFERENCES FOR POINTS IN HEADNOTES
[1-6, 9-11] 63 Am Jur 2d, Product Liability §§ 4, 7, 123-150.
[7] 5 Am Jur 2d, Appeal and Error § 617.
[8] 5 Am Jur 2d, Appeal and Error § 558.
PRODUCTS LIABILITY—TORTS—CONTRACTS—BREACH OF IMPLIED WARRANTY—STRICT LIABILITY—TRANSFER OF PRODUCT—ELECTRICAL SERVICES.
There must be a transfer of the product from the manufacturer for recovery of damages under strict liability in tort or breach of implied warranty doctrines; neither doctrine applies to an injury caused by electric power lines where the injury occurred before the electricity left the defendant electric company‘s control by passing through a customer‘s meter.- PRODUCTS LIABILITY—TORTS—CONTRACTS—ELECTRICAL SERVICES—STANDARD OF CARE—ORDINARY PRUDENT PERSON.
The standard of care to which an electric company is held for negligence in the installation and delivery of electrical services is based on the ordinary prudent person standard. - APPEAL AND ERROR—JUDGMENT—SUMMARY JUDGMENT—INCORRECT REASON—CORRECT RESULT.
A trial court‘s correct grant of summary relief premised upon the wrong reason does not affect appellate disposition of the case if it effects the correct result. - APPEAL AND ERROR—PRESERVING QUESTION—INSTRUCTIONS TO JURY—FAILURE TO OBJECT—COURT RULES.
A plaintiff cannot on appeal raise issues concerning the trial court‘s instructions to the jury where the plaintiff failed to voice objections at trial (GCR 1963, 516.2). - PRODUCTS LIABILITY—TORTS—CONTRACTS—ELECTRICAL SERVICES—INSTRUCTIONS TO JURY—POWER LINE DESIGN—REASONABLY SAFE.
An electric company has a duty to reasonably design a power line to protect against reasonably foreseeable risks of harm; therefore, in a suit for wrongful death because a decedent was killed when a power line was knocked down, an instruction to a jury that, if they found the power line was reasonably safe, the electric company would not be responsible in damages because another type of installation might be safer was not an erroneous instruction. - PRODUCTS LIABILITY—TORTS—CONTRACTS—ELECTRICAL SERVICES—INSTRUCTIONS TO JURY—POWER LINES—INSULATION—STATUTES.
An instruction to a jury that a power line 28 feet from the ground was insulated by air space as a matter of law is not erroneous where the height of the line complied with statutory requirements (MCLA 460.554 ).
- PRODUCTS LIABILITY—TORTS—CONTRACTS—ABNORMALLY DANGEROUS ACTIVITIES—STRICT LIABILITY—ELECTRICAL SERVICES.
Summary judgment was properly granted to a defendant electric company in a suit for damages arising out of a power line accident where the doctrine of abnormally dangerous activities or conditions did not apply under the facts and the defendant‘s product had not left its control.
Appeal from Wayne, Joseph G. Rashid, J. Submitted April 15, 1975, at Detroit. (Docket No. 19452.) Decided August 25, 1975. Leave to appeal denied, 395 Mich 800.
Complaint by Rosalind Williams, individually and as administratrix for the estate of Rolyn D. Williams, deceased, against the Detroit Edison Company for wrongful death arising out of a power line accident. Judgment for defendant. Plaintiff appeals. Affirmed.
Levine & Benjamin, P. C., for plaintiff.
Fischer, Franklin & Ford (by William C. Potter, Jr.), for defendant.
Before: ALLEN, P. J., and BRONSON and N. J. KAUFMAN, JJ.
ALLEN, J. On December 12, 1973, the jury in a five-to-one decision returned a verdict of no cause of action in favor of defendant in this wrongful death action in which plaintiff sought damages to compensate for the loss of her husband who was killed when defendant‘s power line was knocked down and fell on decedent. Previous to trial, the trial court granted defendant‘s motion for partial summary judgment on the grounds that plaintiff‘s counts sounding in breach of warranty and strict liability failed to state claims upon which relief
Rolyn Duane Williams, the deceased, was an employee of the F. J. Siller Company, which on June 14, 1971, was constructing a water line on Joy Road near Haggerty Road. Defendant‘s overhead electrical power lines ran along the north side of Joy Road, and the incident out of which the case arises occurred at a point five poles east of Haggerty Road. There, the 7600-volt power line crossed Joy to a pole on the south side of the street, and ran from a transformer on that pole to a small home. The testimony reveals that the Siller Company often worked near or under power lines, and John R. Siller, the company‘s vice-president, testified that between 45 to 55 per cent of the company‘s projects occurred near power lines.
At about 5:45 p.m., on the day in question, the deceased, foreman of the construction crew, was working on a water pump on the north side of the recently excavated ditch. A back hoe was used to dig the hole, and it then swung around and deposited the soil into a truck. In the course of doing so, the machine‘s “boom” struck the power line, which then fell onto a generator located near deceased and a fellow worker. The wire “jumped” off the generator, struck the deceased and electrocuted him.
The first part of this opinion deals with that portion of plaintiff‘s claim taken from the jury by the trial court, viz.: defendant‘s liability in tort under the doctrines of strict liability or implied warranty. The second portion of the opinion concerns the negligence portion of the case, namely, the various jury instructions pertaining to defend
I.
Pursuant to an examination of Buckeye Union Fire Insurance Co v Detroit Edison Co, 38 Mich App 325; 196 NW2d 316 (1972), plaintiff filed an amended complaint on September 20, 1973, and alleged that defendant had breached its implied warranty of fitness and merchantability that the electricity would be dispersed and serviced in a merchantable quality and that it would be located in a proper and safe fashion. Further, plaintiff alleged that there was an implied warranty that the service of electricity would be rendered in a proper manner and that defendant had breached this warranty. Further, plaintiff alleged that the electricity was an unreasonably dangerous product or service, and that it presented an unreasonable danger to plaintiff‘s decedent and that therefore defendant was strictly liable for the damages caused thereby. After argument November 15, 1973, at which time defendant argued that plaintiff failed to state a cause of action on the above two grounds because there had not been a sale of the electricity, the trial court agreed and granted the motion for partial summary judgment. The trial court stated that there was no sale of electricity until it had passed through the transformer and household meter, and rejected plaintiff‘s argument that a sale was unnecessary.
On appeal, plaintiff argues that plaintiff was deprived of two-thirds of her claim when the trial court allowed the jury to only consider the issue of negligence; that a sale was not necessary to create the imposition of liability based upon breach of warranty or strict liability, and that the concept of
At the outset of our discussion, we note that the “product” involved in this case is not a tangible item like an automobile, punch press or Coca-Cola bottle. Rather, it is a form of energy which in this case consisted of 7600 volts traveling in an uncovered line about 28 feet above the ground. Electricity is a service rather than a “good,” but the doctrine of implied warranty has been held to apply to its sale. Buckeye Union Fire Insurance Co v Detroit Edison Co, 38 Mich App 325, 329; 196 NW2d 316 (1972). Our Court has noted that Buckeye did not definitively limit the application of implied warranty, and has applied this concept to the manner in which some electrical wiring and its attendant hardware were installed. Insurance Co of North America v Radiant Electric Co, 55 Mich App 410, 412; 222 NW2d 323, 325 (1974), lv den, 393 Mich 763 (1974). Thus, the doctrine of implied warranty in tort is applicable to the installation and delivery of electrical services, and it is our task to determine whether it is applicable to the instant situation.
The Uniform Commercial Code, which defendant relied upon, is inapplicable to a tort action alleging a breach of implied warranty. INA v Radiant Electric Co, supra, 55 Mich App at 412; 222 NW2d at 324-325 (1974), Cova v Harley Davidson Motor Co, 26 Mich App 602, 613; 182 NW2d 800 (1970). Plaintiff‘s suit is grounded in tort, rather than contract, and the warranty is implied in fact or in law rather than pursuant to a contract. 2 Frumer and Friedman, Products Liability (1975 ed), § 16.01[1] pp 3-4 and 3-7. Comment, Products Liability in Michigan: Implied Warranty, Strict Tort, or Both? 15 Wayne L Rev 1558, 1564, 1571 (1969). Privity of contract is an irrelevant consideration in a case based upon a tortious breach of warranty or strict liability in tort. Hill v Harbor Steel & Supply Corp, 374 Mich 194, 202; 132 NW2d 54 (1965), and Piercefield v Remington Arms Co, 375 Mich 85, 98; 133 NW2d 129 (1965)Gutowski v M & R Plastics & Coating, Inc, 60 Mich App 499, 506-507, fn 3; 231 NW2d 456 (1975). Piercefield allowed recovery for breach of warranty in which a bystander was injured when defendant‘s product exploded. Clearly, there was no sale to that bystander. Also, Hill allowed an employee to recover where there was no sale of a good to the employee.
Having determined that the doctrine of implied warranty in tort applies to a “products” liability case involving electricity, and that the UCC and other contractual concepts do not apply to such a case, we must now determine the elements of this cause of action. Generally, plaintiff must prove that there was a defect in the electricity “at the time it left the manufacturer“, and that this defect was a proximate cause of plaintiff‘s damages. Buckeye Union, supra, 38 Mich App at 330; 196 NW2d at 318. The manufacturer‘s standard of care, while a relevant factor in a negligence suit, is inapplicable to a warranty action, and Buckeye‘s recital of the elements of such a suit comports with the general rule in this area of the law. See 2
We have seen that plaintiff alleged that defendant was also liable under the doctrine of strict liability. A contractual defense such as lack of privity is inapplicable to such a suit, and a non-purchasing bystander generally is allowed to recover under this theory. 2 Frumer and Freidman, Products Liability, § 16A[5], p 3-345, and Anno: Products Liability: Extension of strict liability in tort to permit recovery by a third person who is neither a purchaser nor user of product, 33 ALR3d 415, § 3, p 419.1
In a strict liability in tort case, plaintiff must prove the presence of a defect and that this defect caused plaintiff‘s injury. Defendant‘s negligence is irrelevant. 2 Frumer and Friedman, Products Liability, § 16A[4][e], p 3-304. Generally, the defective condition of the product must render that product unreasonably dangerous to plaintiff. 63 Am Jur 2d, Products Liability, § 132, p 138. Further, the doctrine of strict liability generally only applies if the defect “was present when the product left the hands of the seller or manufacturer * * * “. Anno: Products liability: Proof, under strict tort liability doctrine, that defect was present when products left hands of defendant, 54 ALR3d 1079, § 1, p 1082. Although the latter failed to include in its discussion cases dealing with implied warranty, it
Regardless of whether the tortious conduct is labeled a breach of warranty or whether the claim is founded on strict liability in tort, it seems that plaintiff must basically prove (1) existence of a defect, (2) causation, and (3) the fact that the defect was present when it left the manufacturer‘s control. An examination of the cases discloses that in each instance, there had been a transfer of the product from the manufacturer‘s control to some third person.2 In either a case of warranty or strict liability in tort, it seems clear that there must be a transfer of the product from the manufacturer. The manufacturer must give up control of the good or service. While the same elements are involved in both strict liability and in a warranty claim, and while many commentators have urged the adoption of the language “strict liability in tort” to avoid encumbering tort action with “contractual baggage”3, both doctrines are inapplicable
We further note that in a case involving a model airplane‘s contact with uninsulated power lines and the resulting burns to the minor person holding the cable that controlled the plane, Wisconsin has chosen not to extend the doctrine of strict liability in tort on the grounds that the product (electricity) had remained in the power company‘s control. Kemp v Wisconsin Electric Power Co, 44 Wis 2d 571, 583; 172 NW2d 161, 166 (1969). Thus, despite the fact that Wisconsin, like Michigan, allows a bystander to recover and does not recognize the defense of lack of privity in a strict liability in tort case, Howes v Hansen, 56 Wis 2d 247; 201 NW2d 825 (1972), it also precludes one from asserting that cause of action where the product has yet to leave the defendant‘s control. Therefore, we find that the trial court properly found that plaintiff failed to state a cause of action in either implied warranty or strict liability in tort where Edison did not release control of its product.4
“The extensive and diverse use of it has demonstrated the fact that electric force is one of the most powerful and dangerous agencies of nature, and even when restrained or controlled by the most perfect machinery and appliances, its high-tension currents are extremely dangerous in many ways and directions.”
Generally, the standard of care to which an electric company is held is usually premised upon a negligence concept. The power company‘s care has been said to be in proportion to the danger involved, and the power company is usually held to the “ordinary prudent person” standard. See Wilhelm v The Detroit Edison Co, 56 Mich App 116, 126-127; 224 NW2d 289 (1974), and cases cited therein. See also Anno: Liability of electric power company for injury or death resulting from contact of crane, derrick, or other movable machine with electric line, 69 ALR2d 93, § 3, p 98 and Anno: Liability for injury or death resulting when pipe or other object is manually brought into contact with electric line, 69 ALR2d 9, § 3, p 15. While Michigan has applied the implied warranty theory to electricity and has noted its inherently dangerous qualities, Buckeye Union v Detroit Edison, 38 Mich App 325; 196 NW2d 316 (1972), and INA v Radiant Electric Co, 55 Mich App 410; 222 NW2d 323 (1974), Michigan has yet to impose the doctrine of strict liability based on an abnormally dangerous or inherently dangerous activity upon an electric power company.
As noted earlier in our discussion regarding Rylands v Fletcher, supra, England applied the doctrine of strict liability to a “non-natural” use of
In California, an apparent leader in this area of liability, Luthringer v Moore, 31 Cal 2d 489, 500; 190 P2d 1, 8 (1948), applied the strict liability theory based upon an ultra-hazardous activity to the use of hydrocyanic acid gas in the fumigation of a small shop to exterminate cockroaches and other vermin. However, California has chosen not to extend this doctrine to the maintenance of electric power lines. California continues to hold its electric power line companies to the standard of reasonable care under the circumstances. McKenzie v Pacific Gas & Electric Co, 200 Cal App 2d 731, 736; 19 Cal Rptr 628, 631 (1962), overruled on other grounds, DiMare v Cresci, 58 Cal 2d 292, 299; 23 Cal Rptr 772, 776; 373 P2d 860 (1962). Despite the fact that England has chosen to apply ultra-hazardous liability to the maintenance of power lines under the street, see Prosser, supra, at 506, we choose to follow California‘s example and hold the power company to the “reasonable man” standard of care rather than impose liability based upon the maintenance of an ultra-hazardous activity. Therefore, plaintiff failed to state a claim upon which relief could be granted, and the trial court‘s decision to preclude the submission of proofs on this point, although based upon the wrong reason, reached the correct result.5
This portion of the opinion is concerned with plaintiff‘s claims that the trial court erred in a number of its jury instructions. Plaintiff argues that one of the instructions6 given by the trial court—an instruction based upon the decision of Koehler v Detroit Edison Co, 383 Mich 224; 174 NW2d 827 (1970), as to the duty of an electric power company to warn of the danger of electric power lines—was erroneous because the instant case differs factually from Koehler. Plaintiff urges that Koehler be replaced and that we adopt the principles discussed in Black v Public Service Electric & Gas Co, 56 NJ 63; 265 A2d 129 (1970), and Ahearn v Florida Power & Light Co, 129 So 2d 457 (Fla App, 1961).
At the outset, we reject plaintiff‘s offer that we somehow overrule the principles found in Koehler. Plaintiff‘s argument should be made to the Michigan Supreme Court. We find the instruction was proper but suggest that at some point the instruction be given in both contexts—where the plaintiff had knowledge or reason to know of the dangerous
We also find that none of plaintiff‘s claims have been preserved for appellate review. Plaintiff‘s counsel failed to voice objections to the trial court‘s instruction that the power line was insulated as a matter of law in view of the air space between the line and the ground, said instruction being based upon Dees v L F Largess Co, 1 Mich App 421, 427; 136 NW2d 715 (1965). Plaintiff‘s counsel also failed to object to the trial court‘s jury instruction as to the power company‘s duty to warn plaintiff‘s decedent and his fellow crew members. Finally, plaintiff‘s counsel failed to object to the trial court‘s jury instruction that defendant would not be negligent in the design of its power transmission line merely because there was another method of design which some have considered to be safer. While counsel apparently raised objection and engaged in a discussion as to the propriety of the trial court‘s instructions on proximate cause, and while the trial court clarified those instructions, no objection was raised to any of the above issues. Therefore, we find that having failed to voice objections, plaintiff cannot now raise these issues on appeal. GCR 1963, 516.2. Wilhelm v The Detroit Edison Co, 56 Mich App 116, 132, 152-154; 224 NW2d 289, 297, 306-307 (1974).
In any event, we find that the trial court‘s instruction as to defendant‘s duty comported with Koehler, supra, and the recent decision of Wilhelm v Detroit Edison Co, supra, 56 Mich App at 126-127; 224 NW2d at 294-295. The trial court‘s statement that Edison would have no duty to warn plaintiff‘s decedent or no duty to de-energize the
As to the design problem, the court instructed the jury that if they found the line to be reasonably safe, Edison would not be responsible in damages merely because another way of installation was thought to be safer. The trial court did not instruct the jury that the line was reasonably safe, but rather instructed the jury that if they found the line to be reasonably safe, Edison was not bound to go beyond what they had already done. Said instruction in effect told the jury that Edison had the duty to reasonably design a power line to protect against reasonably foreseeable risks of harm, and we find no error. See Wilhelm, supra, 56 Mich App at 149; 224 NW2d at 305, and cases cited therein.
As to the instruction that the power line was insulated as a matter of law, we find no error. The line was approximately 28 feet from the ground (some testimony disclosed that the wire was approximately 29 feet from the ground at the point where the back hoe hit the wire), and we find that this complied with the standards of
Affirmed, costs to defendant.
BRONSON, J., (concurring). Due to the scope of Judge ALLEN‘s opinion, I feel that I must emphasize that I agree only with his conclusions on the issues which have to be decided in this particular case. Specifically, I agree that the trial judge properly granted a partial summary judgment because:
(1) The doctrine of “abnormally dangerous activities or conditions” does not apply here, so that plaintiff cannot claim strict liability on that basis; and
(2) Defendant‘s product had not left its control, making Michigan‘s products liability doctrine (whether termed “strict liability“, “implied warranty in tort“, or “products liability“) inapplicable here.
I agree with Judge ALLEN‘s conclusion that plaintiff‘s only cause of action against Detroit Edison for her decedent‘s injuries must be based upon Edison‘s negligence, and with his analysis of the jury instructions on the negligence claim.