Case v. Consumers Power Co.

• Decision Date: 26 July 2000
• Docket Number: Docket No. 112707, Calendar No. 2.
• Citation: 615 N.W.2d 17,463 Mich. 1
• Parties: Kenneth CASE and Diana Case, Plaintiffs-Appellees, v. CONSUMERS POWER COMPANY, Defendant-Appellant.
• Court: Michigan Supreme Court

615 N.W.2d 17

463 Mich. 1

Kenneth CASE and Diana Case, Plaintiffs-Appellees, v. CONSUMERS POWER COMPANY, Defendant-Appellant.

Docket No. 112707, Calendar No. 2.

Supreme Court of Michigan.

Argued March 8, 2000.

Decided July 26, 2000.

Martin W. Hable, Lapeer, for plaintiffs-appellees.

Warner, Norcross & Judd, L.L.P. (by Roger M. Clark, William R. Jansen, and Lori L. Gibson), Grand Rapids, and David A. Mikelonis and James E. Brunner, co-counsel, Jackson, for defendant-appellant.

David VanderHaagen, Lansing, for Michigan Farm Bureau.

Opinion

YOUNG, J.

We granted leave in this case to address the proper standard of care applicable to providers of electricity in stray voltage cases. We conclude that the general standard of care is always "reasonable care," and it is for the jury to determine whether the defendant's conduct in a given case fell below that standard.

In this case, the trial court instructed the jury that electricity is inherently dangerous and, therefore, that defendant was required to inspect and repair its electrical lines. Because the instruction imposed an obligation to inspect and repair, it was improper. Further, we cannot conclude that the error in this case was harmless. Accordingly, we vacate the judgment for plaintiffs and remand for a new trial.

Facts and Procedural Background

Plaintiffs Kenneth and Diana Case were dairy farmers during the 1970's and 1980's. In 1986, plaintiffs sold their dairy cows in a government buyout program. According to plaintiffs, the sale was induced by financial stress, which was a result of low milk production. In 1993, plaintiffs bought a new herd and presumed dairy farming. Shortly after buying the new herd, plaintiffs concluded that their earlier milk-production problems were caused by stray voltage, and sued Consumers Power Company.

Stray voltage (technically referred to as neutral-to-earth voltage, or NEV) is an electrical phenomenon that can sometimes affect livestock, causing decreased milk production in dairy cows, among other problems. According to the parties, the voltage is so low that humans cannot detect it.¹ Stray voltage can have different causes, and stray voltage on a farm may be caused by a problem on the farm, a problem in Consumers' wires off the farm, or even a problem on another customer's property, such as a neighboring farm.² There is a procedure, sometimes referred to as "separating the neutrals," that, according to the parties, will eliminate all off-farm sources.

In this case, plaintiffs alleged that stray voltage depressed milk production on their farm until the neutrals were separated, whereupon milk production returned to normal. Defendant responded that it was not negligent, and that plaintiffs' milk-production problems were not caused by stray voltage. After hearing evidence regarding stray voltage and the problems on plaintiffs' farm, a jury rendered an award for plaintiffs, although the jury also found plaintiffs partially at fault (fifty-five percent). Defendant filed motions for directed verdict, judgment notwithstanding the verdict, and a new trial, all of which the trial court denied. Defendant appealed, and the Court of Appeals affirmed.³ We then granted defendant's application for leave to appeal.⁴

The only issue before this Court concerns a jury instruction regarding the standard of care owed by Consumers to plaintiffs. Over Consumers' objection,⁵ the trial court instructed the jury as follows:

It was the duty of the Defendant in connection with this occurrence to use ordinary care for the safety of the Plaintiffs' property.

It is well settled that electrical energy possesses inherently dangerous properties requiring expertise in dealing with its phenomena. Therefore Consumers Power Company has a duty to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects. Consumers Power Company, being engaged in the transmission of electricity, is bound to anticipate ordinary use of the area surrounding the lines and to ... appropriately safeguard an attendant risk. The test to determine whether a duty was owed is not whether Consumers Power Company should have anticipated a particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable activity done on the premises for business, work or pleasure.

Standard of Review

We review claims of instructional error de novo. In doing so, we examine the jury instructions as a whole to determine whether there is error requiring reversal. The instructions should include all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them. Instructions must not be extracted piecemeal to establish error. Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Murdock v. Higgins, 454 Mich. 46, 60, 559 N.W.2d 639 (1997). We will only reverse for instructional error where failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Johnson v. Corbet, 423 Mich. 304, 377 N.W.2d 713 (1985).

Analysis

To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,⁶ and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). The disputed instruction in this case was intended to aid the jury in determining whether defendant breached its duty to plaintiffs to exercise "reasonable care." ⁷ This is the so-called "general standard of care" applicable in negligence cases. See Moning v. Alfono, 400 Mich. 425, 443, 254 N.W.2d 759 (1977). Ordinary care means the care that a reasonably careful person would use under the circumstances. See SJI2d 10.02; Detroit & M.R. Co. v. Van Steinburg, 17 Mich. 99, 118-119 (1868) ("Negligence ... consists in a want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury").

Ordinarily, it is for the jury to determine whether a defendant's conduct fell below the general standard of care. Stated another way, the jury usually decides the specific standard of care that should have been exercised by a defendant in a given case. Moning, supra at 438, 254 N.W.2d 759. However, the court sometimes decides the specific standard of care if it is of the opinion "that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy...." Id.

For example, in Schultz, supra, the plaintiff was electrocuted and died after an aluminum ladder he was using came too close to Consumers Power Company's 4,800 volt transmission lines. This Court recognized that "electricity possesses inherently dangerous properties" and that "electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity." Schultz at 451, 506 N.W.2d 175. Accordingly, the Schultz Court held not only that electric utility companies owed a duty to exercise reasonable care in maintaining their wires, but that those companies are required to "reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects." Id. at 451, 506 N.W.2d 175.⁸ The Court in Schultz cited a number of cases in support of its conclusion, all but one of which involved the dangers of unintended contact with high-voltage electricity.⁹ In this case, the trial court concluded that it was bound to instruct the jury consistently with the standard articulated in Schultz, although it expressed some reservation about doing so.¹⁰

The "duty" of inspection and repair imposed in Schultz was intended to protect against the likelihood of serious injury or death. Id. at 453-454, 506 N.W.2d 175. Clearly, "reasonable care under the circumstances" represents a sliding scale. The more severe the potential injury, the more resources a reasonable person will expend to try and prevent that injury. Similarly, the greater the likelihood that a severe injury will result, the greater the lengths a reasonable person will go to prevent it. This principle is widely recognized.¹¹

With this principle in mind, we think it beyond dispute that the dangers of high-voltage electricity (fire, electrocution, and death among them) are different in kind, and more severe, than the dangers of stray voltage. Schultz represents a very limited exception to the general rule that the jury determines the specific standard of care owed by a defendant in a particular case, and stray voltage simply does not qualify for that unusual treatment. Thus, we conclude that the obligation to inspect and repair that was articulated in Schultz is inapplicable in stray-voltage cases. Rather, we conclude that a jury must determine the precise actions required to meet the reasonable care standard in stray-voltage cases.

As the United States Supreme Court recognized long ago:

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in ...