Boyce v. Monongahela Power Co.

Docket Number22-0292
Decision Date08 November 2023
CourtWest Virginia Supreme Court

Submitted: October 17, 2023

William C. Brewer, Esq. Ramsey K. Jorgensen, Esq. William C Brewer & Assoc. PLLC Morgantown, West Virginia Counsel for Petitioners

Edward A. Smallwood, Esq. Colby S. Bryson, Esq. Post & Schell P.C. Pittsburgh, Pennsylvania Counsel for Respondent, Monongahela Power Company

Charles C. Wise, III, Esq. Bowles Rice, LLP Morgantown, West Virginia Counsel for Respondents, Frontier Communications of America, Inc., Frontier Communications Online and Long Distance, Inc., Frontier Communications Corporate Services, Inc., and Frontier Communications ILEC Holdings LLC

Bradley K. Shafer, Esq. Mintzer, Sarowitz, Zeris, Ledva & Meyers, LLP Wheeling, West Virginia Counsel for Respondents, Atlantic Broadband Finance, LLC and Atlantic Broadband (Penn), LLC

JUSTICE HUTCHISON and JUSTICE WOOTON dissent and reserve the right to file dissenting Opinions.


1. "A circuit court's entry of summary judgment is reviewed de novo." Syl. Pt. 1, Painter v. Peavy, 192 W.Va. 189, 451 S.E.2d 755 (1994).

2. "Summary judgment is appropriate if, from the totality of the evidence presented, the record could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove." Syl. Pt. 2, Williams v. Precision Coil, Inc., 194 W.Va. 52, 459 S.E.2d 329 (1995).

3. "In order to recover in an action based on negligence the plaintiff must prove that the defendant was guilty of negligence and that such negligence was the proximate cause of the injury of which the plaintiff complains." Syl. Pt. 1, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953).

4. "One requisite of proximate cause is an act or an omission which a person of ordinary prudence could reasonably foresee might naturally or probably produce an injury, and the other requisite is that such act or omission did produce the injury." Syl. Pt. 4, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953).

5. "The proximate cause of an injury is the last negligent act contributing to the injury and without which the injury would not have resulted." Syl. Pt. 5, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953).

6. "'Those who operate and maintain wires charged with dangerous voltage of electricity are required to exercise a degree of care commensurate with the dangers to be reasonably apprehended therefrom; but they are not insurers against all injury therefrom.' Pt. 1, syllabus, Maggard v. Appalachian Electric Power Co., 111 W.Va. 470, 163 S.E. 27." Syl. Pt. 7, Sutton v. Monongahela Power Co., 151 W.Va. 961, 158 S.E.2d 98 (1967).

7. "'A person in charge of or maintaining an instrumentality inherently dangerous is not liable to one who is injured thereby in a manner which could not be reasonably anticipated.' Pt. 3, syllabus, Musser v. N. & W. Ry. Co., 122 W.Va. 365, 9 S.E.2d 524." Syl. Pt. 8, Sutton v. Monongahela Power Co., 151 W.Va. 961, 158 S.E.2d 98 (1967).

8. "The questions of negligence, contributory negligence, proximate cause, intervening cause and concurrent negligence are questions of fact for the jury where the evidence is conflicting or when the facts, though undisputed, are such that reasonable men draw different conclusions from them." Syl. Pt. 2, Evans v. Farmer, 148 W.Va. 142, 133 S.E.2d 710 (1963).

9. "When the material facts are undisputed and reasonable men can draw only one conclusion from them the question of negligence is a question of law for the court." Syl. Pt. 6, Matthews v. Cumberland & Allegheny Gas Co., 138 W.Va. 639, 77 S.E.2d 180 (1953).

10. "An intervening cause, in order to relieve a person charged with negligence in connection with an injury, must be a negligent act, or omission, which constitutes a new effective cause and operates independently of any other act, making it and it only, the proximate cause of the injury." Syl. Pt. 3, in part, Wehner v. Weinstein, 191 W.Va. 149, 444 S.E.2d 27 (1994).

11. "A tortfeasor whose negligence is a substantial factor in bringing about injuries is not relieved from liability by the intervening acts of third persons if those acts were reasonably foreseeable by the original tortfeasor at the time of his negligent conduct." Syl. Pt. 13, Anderson v. Moulder, 183 W.Va. 77, 394 S.E.2d 61 (1990).



Petitioner Eugene Boyce ("Petitioner") was attempting to make a residential delivery in the course of his employment for Lowe's when he encountered overhead communication lines that his truck could not clear. He attempted to move the communication lines by climbing on top of his delivery truck and wrapping shrink-wrap around the communication lines, which were in close proximity to an energized electrical line. Petitioner contacted the energized electrical line and was electrocuted. He suffered severe injuries.

Petitioner and his wife, Kimberly Boyce (collectively "Petitioners"), brought a negligence action against Respondents, the owners of the electrical and communication lines.[1] Following discovery, the Circuit Court of Monongalia County granted summary judgment in favor of Respondents. It found that Petitioner's "actions were negligent and serve as the only proximate cause" of the incident. The circuit court also found that even if a genuine issue of material fact existed as to Respondents' negligence, Petitioner's actions "constitute an intervening and superseding cause of the [i]ncident and alleged injuries." After the circuit court granted summary judgment in favor of Respondents, Petitioners filed a motion to alter judgment pursuant to Rule 59(e) of the West Virginia Rules of Civil Procedure. The circuit court denied this motion on March 25, 2022.

On appeal, Petitioners mainly contend that proximate cause, foreseeability, and intervening cause involve questions of fact that should be decided by a jury. After review, we agree with the circuit court that Petitioner's actions were (1) the sole proximate cause of the incident and (2) "constitute an intervening cause." Therefore, we affirm the judgment of the circuit court.


On April 11, 2014, Petitioner was working as a boom truck operator for Lowe's. The incident at issue occurred when he was attempting to deliver construction materials to a residential customer, Brandon Tucker ("Mr. Tucker"), in Morgantown, West Virginia. When he arrived at Mr. Tucker's residence, Petitioner encountered low-hanging communication lines in Mr. Tucker's driveway that blocked the path of his boom truck. The communication lines were owned by Respondents Frontier and Atlantic. The lowest communication line was approximately 14'4" above the ground. Respondent Mon. Power owned two electrical lines, one energized and one neutral, that ran above the communication lines. The energized line was approximately 20'6" above the ground and the neutral line was approximately 23'7" above the ground.[2] Petitioner initially had Mr. Tucker assist him by using a wooden board to push the communication lines upward. This did not solve the problem. Petitioner then climbed on top of his truck, wrapped shrink-wrap around the communication lines and contacted the energized electrical line with his hand. Petitioner was electrocuted upon contacting the energized electrical line and suffered serious injuries, including the amputation of his right hand.

Following this incident, Petitioners filed the instant lawsuit, asserting negligence claims against the three Respondents. Petitioners alleged that Respondents Frontier and Atlantic were negligent because their communication lines were below the height clearance requirements set forth in applicable laws and regulations, including the National Electric Safety Code ("NESC"). Further, Petitioners asserted that Respondent Mon. Power was negligent because the neutral electrical line was installed above the energized electrical line "in violation of applicable laws and regulations."

Multiple witnesses were deposed during discovery. Mr. Tucker, the residential customer who witnessed the incident, described the sequence of events leading up to Petitioner's electrocution as follows:

Q. [T]ake us through from the time you saw him with the shrink wrap[,] what you witnessed.
A. Well, like I said, I was walking around the side of the truck and he had already had some of it [the shrink-wrap] wrapped around the wire.
Q. That is the lowest wire?
A. Yes, sir. By the time that I was - I came over around, he grabbed that bottom wire to lift it up and as soon as he did it started electrocuting him.
Q. So he grabbed the lowest wire?
A. Yeah, the wire that has the shrink wrap around it is the wire that he grabbed.
. . . .
Q. Prior to him starting to do that [shrink-wrapping the wires], did he tell you he was going to do that?
A. Yeah, he did. He said he was going to try something else with this shrink wrap, he did it before. That was as I was walking around. By the time I got around, he already had it wrapped up and grabbed it and it electrocuted him.
. . . .
Q. So you think he was trying to push the wires

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