Ransome v. Wisconsin Elec. Power Co.

Citation275 N.W.2d 641,87 Wis.2d 605
Decision Date01 May 1979
Docket NumberNo. 76-301,76-301
PartiesRalph RANSOME and Dorothy J. Ransome, Plaintiffs-Appellants, v. WISCONSIN ELECTRIC POWER COMPANY, Defendant-Respondent.
CourtUnited States State Supreme Court of Wisconsin

Scott V. Lowry, Waukesha, argued and on brief, for plaintiffs-appellants.

William P. Croke (argued), and Prosser, Wiedabach & Quale, S. C., Milwaukee, on brief, for defendant-respondent.

This is a products liability case. Electricity of voltage greatly in excess of normal passed through an electric meter on plaintiffs' building causing a fire and damage. The jury answered "No" to a verdict question which inquired as to whether the electricity when it left the possession of the defendant power company was in such a defective condition as to be unreasonably dangerous to a prospective customer.

In motions after verdict the plaintiffs asked that this answer be changed from "No" to "Yes," and that judgment be entered in their favor for damages in the amount of $25,000 as found by the jury. This motion was denied and judgment was entered dismissing the complaint. The plaintiffs appeal.

BEILFUSS, Chief Justice.

In 1974 the plaintiffs-appellants, Ralph and Dorothy Ransome, owned a two-family rental house in the Town of Waukesha, Waukesha county. The defendant-respondent, Wisconsin Electric Power Company, furnished the electricity used in the house. The electricity supplied by the defendant was the customary residential voltage of 120-240.

The electricity was transmitted over the defendant's lines to a pole located near the plaintiffs' house and then through a transformer attached to the pole. In normal operations the voltage is reduced at this transformer from 4800 volts to 120-240 volts. The electricity at this reduced voltage goes over a line to the electric meter located at the house and after the electricity is metered it goes into the electrical system of the house. All of the transmission lines and equipment up to and including the meter are owned by and supervised by the defendant electric company.

The evidence established that approximately four days before September 28th lightning struck the transmission line near the transformer. On September 28th the pole transformer exploded allowing 1000-4000 volts of electricity to pass through the meter and into plaintiffs' house. This overload of electricity was the cause of the fire and resulting damage.

The plaintiffs commenced this products liability action contending that at the time the electricity left the defendant company's control it was unreasonably dangerous. The defendant denied the electricity was unreasonably dangerous when it left its control and affirmatively alleged that a lightning strike was an Act of God and a superseding intervening cause of the fire damage. By way of argument, the defendant contends that it should be relieved of any liability because of policy considerations.

The following historical facts appear in the record:

Approximately 100,000 distribution transformers of the type which figured in the incident at issue here are located within the Wisconsin Electric Power Company's present system.

To the best of defendant's knowledge there have been no other cases where a fire or other damage has occurred to a residence as a result of the failure or malfunction of a residential line distribution transformer.

The last date prior to September 28, 1974, on which the wire and equipment of pole # 31-4155 were inspected was December 14, 1973.

Ordinarily, electricity leaves the control of the Wisconsin Electric Power Company at the point in the distribution system where a customer's conductors are connected to the company's conductors, namely, at the electric meter.

The electric meter installed at the electricity service entrance of a residence belongs to the Wisconsin Electric Power Company which is responsible for its maintenance and repair.

The "sale" of electricity takes place at the meter where charges are generally computed.

While there probably are numerous technical definitions of "electricity," we need not be concerned with those accurate descriptions here suffice it to say it is a form of energy that can be made or produced by men, confined, controlled, transmitted and distributed to be used as an energy source for heat, power and light and is distributed in the stream of commerce. The distribution might well be a service, but the electricity itself, in the contemplation of the ordinary user, is a consumable product.

Expert witnesses testified concerning the probable sequence of events at the utility pole in question and at the electricity service entrance to the house at the time of and just prior to the fire. Dr. George Steber, professor of electrical engineering and consultant for many companies in the Milwaukee area regarding high voltage design, appeared for the plaintiffs. Mr. James McCowen, superintendent of the distribution operation division of the Wisconsin Electric Power Company, and John Karlman, troubleman for the company, testified for the defendant.

Dr. Steber explained that the method of transmitting electricity over long distance at high voltage and reducing it by means of a transformer before it entered a residence was an economical and convenient way of distributing electricity. In Wisconsin it is the primary mode of transmission of electricity. Furthermore, the pole transformer used to reduce the line voltage from 4800 volts to 120-240 volts was a standard utility installation used throughout Wisconsin and was certainly within all accepted engineering practices.

The witnesses gave an explanation of the functioning of the pole transformer, a summary of which is as follows: The electrical power right outside the main generating plant is stepped up either to 130,000 or 145,000 volts. This is later stepped down to 26,000 or 13,000 volts, and finally to 4800 volts after the electricity has been distributed to the appropriate substations. Electricity is transmitted along the primary lines at 4800 volts until it reaches a step-down transformer where it is reduced to 120-240 volts. It then passes over the secondary lines and is distributed to individual buildings. A primary fuse is inserted in series with the high voltage wire that is connected to the transformer for the purpose of protecting the line. Two primary connections leading from the upper crossarm of the pole to the transformer provide the power into the transformer. Three conductors coming out provide the 120-240 volt service to the house. The inside of the transformer is basically a steel or iron core with several sets of copper wires wrapped around. Electricity going through the coil will transform from the 4800 volts going in to 120-240 volts coming out. The wires wound on the core are physically insulated from the tank and from the secondary conductors by means of an oil insulation. The installation is also equipped with a lightning arrester installed to drain to ground as quickly as possible most of the excess energy which may be in the vicinity of hundreds of thousands of volts produced by a lightning strike.

The above description describes the general engineering design of the installation. However, it does not reflect the actual condition of the components prior to the accident. John Karlman, the troubleman dispatched to the scene on the night of the fire, examined the pole transformer. His summary of the probable condition of the components prior to the fire was not contested. The electrical insulator on the top of the cross bar was missing. The primary fuse was broken. Part was lying on the cross bar in several pieces; part was hanging down below the primary crossarm. With the damage to the insulator, the primary wire was free and resting directly on the cross bar. McCowen testified that in itself it is not harmful as long as the surface of the crossarm remains dry, since wood when dry is a relatively good insulator. In addition, the lightning arrester was spent. It was found broken in at least two pieces with the ends dangling. Thus, the device was incapable of interrupting any additional lightning surges.

Based on the condition in which Mr. Karlman found the equipment on the utility pole, on the loud noise heard during the rain storm four days earlier in the area of the utility pole, and on the simultaneous momentary power outage which occurred in both the Ransomes' and a neighboring house, Mr. McCowen was able to conclude that the damage done to the lightning arrester, the insulator and the primary fuse was probably the result of a lightning strike several days before the fire. Mr. McCowen testified that it is not frequent, but neither is it uncommon to have porcelain insulators damaged by a relatively close lightning strike. When this happens the porcelain will crack due to the intense heat, and either fall to the ground immediately or some time later due to the action of the wind vibrating the wires. Dr. Steber agreed that the insulator pin could have been damaged by lightning. However, he noted that in fact these devices can be broken and removed for a variety of reasons, for example, someone shooting at it with a rifle.

With the above summary of the general design of the pole transformer and the actual condition of the installation in question as a foundation, we consider the immediate circumstances of the fire. It was raining heavily on the night of September 28, 1974. As mentioned above, the electrical insulator on the top of the cross bar of the utility pole was missing, the fuse was broken in several pieces and the primary wire with a current of 4800 volts was resting on the wooden cross bar. Mr. McCowen gave the following testimony, substantially corroborated by Dr. Steber, concerning the probable sequence of events at this point:

". . . When the rain started on the date of the accident the cross arm would have become damp. It's...

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