Parcher v. Detroit Edison Co.

• Decision Date: 22 March 1995
• Docket Number: Docket No. 161576
• Citation: 209 Mich.App. 495,531 N.W.2d 724
• Parties: Theodore R. PARCHER, Jr., Yvonne M. Parcher, Individually and as Next Friend of Amanda Mae Parcher, a Minor, Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY, a Michigan Corporation, Defendant-Appellee, and Parliament Company, a Foreign Corporation and Cideco, Inc., a Foreign Corporation, Defendants.
• Court: Court of Appeal of Michigan — District of US

Page 724

531 N.W.2d 724

209 Mich.App. 495

Theodore R. PARCHER, Jr., Yvonne M. Parcher, Individually and as Next Friend of Amanda Mae Parcher, a Minor Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY, a Michigan Corporation, Defendant-Appellee and Parliament Company, a Foreign Corporation and Cideco, Inc. a Foreign Corporation, Defendants.

Docket No. 161576.

Court of Appeals of Michigan.

Submitted Jan. 11, 1995, at Detroit.

Decided Jan. 24, 1995.

Approved for Publication March 22, 1995, at 9:15 a.m.

Released for Publication May 24, 1995.

Michael J. Mangapora, P.C. by Robert D. Kent-Bryant, Flint, for Theodore R. Parcher, Jr., and Yvonne M. Parcher.

Plunkett & Cooney, P.C. by Ernest R. Bazzana (Walter S. Schwartz, of counsel), Detroit, for Detroit Edison Co.

Before CONNOR, P.J., and WAHLS and SAAD, JJ.

PER CURIAM.

Plaintiffs appeal as of right from the trial court's order granting summary disposition in favor of The Detroit Edison Company (hereafter defendant). On appeal, plaintiffs claim that defendant should have foreseen the injuries that resulted and that it owed a duty to plaintiff Theodore Parcher. We affirm.

In July of 1990, Theodore Parcher (hereafter plaintiff) sustained serious and permanent injuries after scaffolding he was transporting on a forklift came in contact with an electrical wire owned by defendant. At the time of the accident, plaintiff was working on the construction of a Kroger store, and the uncollapsed scaffolding he was transporting was twenty-nine feet high. The electrical wire was thirty-five feet off the ground and sixty-seven feet from the building site. The evidence established that Detroit Edison was aware of the building project and that one of its poles would have to be moved in order to accommodate the parking lot at the new store. Detroit Edison was not in violation of any safety regulations at the time of the accident, but, by operating the forklift within ten feet of the wire, plaintiff had violated safety standards adopted pursuant to M.C.L. § 408.1016; M.S.A. § 17.50(16) as 1979 AC, R 408.11936. A few days before the accident, the electrical foreman had warned workers of the wire, and plaintiff was aware of the location of the wire.

The trial court ruled that defendant did not owe plaintiff a legal duty to move, insulate, or de-energize the power line, or warn him of the power line, and concluded that the accident was not foreseeable. Specifically, the trial court stated:

These were high wires placed before construction ever began and served the whole area--to place that type of burden on the Defendant is unreasonable. That leaves us with the question of whether Defendant should have made some type of warning. What warning? That workers should not raise a backhoe with metal items to touch a wire? Any person, let alone, a construction worker knows of the inherent danger of that activity. There was no legal duty of Defendant and the event was not foreseeable.

We believe the trial court's conclusion is correct.

This Court reviews de novo a trial court's determination regarding motions for summary disposition. Borman v. State Farm Fire & Casualty Co., 198 Mich.App. 675, 678, 499 N.W.2d 419 (1993).

In Koehler v. Detroit Edison Co., 383 Mich. 224, 231, 174 N.W.2d 827 (1970), the Michigan Supreme Court affirmed the trial court's finding that Detroit Edison had not been negligent in connection with the death of an ironworker who came in contact with a power line. The Koehler Court noted that there was sufficient room in which to work, and that the ironworker understood the danger involved with the power line. Id. Further, the Supreme Court noted that "there was no reason to expect trouble from the line or to alert Detroit Edison that a crane was to be used" and that "Detroit Edison was not apprised of the operation or requested to take any precautions." Id. The Koehler Court concluded by stating:

The mere fact that Detroit Edison knew a building was under construction near its power line and that, from time to time, mobile cranes were being brought upon the premises to be used in construction work, would not, standing alone, create a duty upon Detroit Edison to remove the charge, insulate the line, or notify the parties of a dangerous...