Bush v. Alabama Power Co.

• Decision Date: 14 September 1984
• Citation: 457 So.2d 350
• Parties: William J. BUSH and Mary E. Bush v. ALABAMA POWER COMPANY, a corporation; Country Club of Mobile. James David ARMSTRONG, By and Through his father and next friend, William ARMSTRONG, et al. v. Douglas LAING. James David ARMSTRONG, etc., et al. v. COUNTRY CLUB OF MOBILE. James David ARMSTRONG, etc., et al. v. ALABAMA POWER COMPANY, a corporation. 83-255, 83-258, 83-256, 83-257.
• Court: Alabama Supreme Court

Page 350

457 So.2d 350

William J. BUSH and Mary E. Bush v. ALABAMA POWER COMPANY, a corporation; Country Club of Mobile.

James David ARMSTRONG, By and Through his father and next friend, William ARMSTRONG, et al. v. Douglas LAING.

James David ARMSTRONG, etc., et al. v. COUNTRY CLUB OF MOBILE.

James David ARMSTRONG, etc., et al. v. ALABAMA POWER COMPANY, a corporation.

83-255, 83-258, 83-256, 83-257.

Supreme Court of Alabama.

Sept. 14, 1984.

Ronald P. Slepian and Richard H. Sforzini, Jr. of McDermott, Slepian, Windom & Reed, Mobile, for William J. Bush and Mary E. Bush.

Patrick M. Sigler, Mobile, for James David Armstrong, William E. Armstrong, and Doras Armstrong.

Edward S. Allen, of Balch, Bingham, Baker, Ward, Smith, Bowman & Thagard, Birmingham, and Carroll H. Sullivan, of Gaillard, Little, Hume & Sullivan, Mobile, for Alabama Power Co.

Bert S. Nettles, Sidney W. Jackson III, and Forrest S. Latta, of Nettles, Barker & Janecky, Mobile, for Douglas Laing.

Alton R. Brown, Jr. and Michael S. McGlothren, of Brown, Hudgens, Richardson, Whitfield & Gillion, Mobile, for Country Club of Mobile.

PER CURIAM.

William Bush, Mary E. Bush, and James David Armstrong appeal from a summary judgment granted in favor of Alabama Power Company, the Country Club of Mobile (the Club), and Douglas Laing, in this action to recover damages for personal injuries.

In March 1980, the Club hired Lonnie Manning, an independent contractor, to replace the bulbs in the lights on its outdoor tennis courts. Manning's employee, James David Armstrong, assisted him. They assembled a scaffold on the tennis courts in order to be able to work on the lights located at the top of poles which varied in height from 25 to 35 feet. The scaffold, when assembled, was 33'3" tall.

William Bush was employed part time by Douglas Laing, the Club's tennis professional. Laing, in turn, was employed by the Club.

On March 27, 1980, when Manning and Armstrong had completed their work on the lights for the day, Laing instructed Armstrong and Bush to place the scaffold in the northeast corner of court six. As they were pushing the assembled scaffold to the corner, the upper section of the scaffold came into contact with an uninsulated 7200-volt distribution line owned by Alabama Power Company. At the point of contact, the electrical wire was approximately 30 feet above the level of the tennis court. Both young men were seriously injured as a result of the electrical shocks that they received.

In 1951, the Club had granted Alabama Power Company an easement to construct, operate, and maintain power lines across its property. That same year, the system of wires which this case involves was installed. Subsequently, the Club built the outdoor tennis courts and, around 1962, erected the lighting fixtures. The power lines traversed the easternmost side of the tennis courts. There were no lights or light poles along the side of court six or in the northeast corner where Bush and Armstrong were instructed to place the scaffold.

At some time before the date of the accident, Alabama Power had removed the fuses from the switch into which these wires were fed and had replaced them with solid links. In the event of a fault in the line, such as contact with a scaffold, a fuse would "blow" and cut off the electricity surging through the line within a matter of seconds. A solid link, however, prevents the line from de-energizing when a fault occurs. In this case, because there were solid links in the switch, the electricity continued flowing through the electrical lines and the scaffold and bodies of Bush and Armstrong until they were forcibly moved. Solid links are helpful where there are frequent power outages caused by such things as branches brushing the lines. The Club had experienced numerous power outages, necessitating repeated visits by Alabama Power to replace the fuses in this switch. The day after the accident, the line was reenergized, but the solid links were removed, and 60-amp fuses were reinstalled. In 1981, the entire system of wires was rerouted off the tennis court.

The Bushes and Armstrong separately filed suit against Alabama Power, the Club, and Laing, alleging that each of them had negligently and wantonly breached a duty of care owed to them. The Bushes' claim against Laing was the first to be disposed of. Summary judgment was granted in favor of Laing. The judgment was made final under Rule 54(b), A.R.Civ.P., and the Bushes appealed to this Court. That appeal was subsequently dismissed upon the Bushes' own motion. The two actions were then consolidated by the trial court.

The parties have engaged in extensive discovery, including interrogatories, depositions, and production of documents. The record on appeal, which is 3,500 pages, reflects the facts recited above, and in addition contains the pleadings, additional affidavits, and some exhibits. On October 10, 1983, two weeks before the trial of these actions was to commence, the trial court granted summary judgment as to all defendants in both suits. It is from this final judgment that the plaintiffs appeal.

We first address the judgment entered in favor of Alabama Power Company. The Bushes and Armstrong allege that the power company was negligent or wanton in that it failed to insulate the lines, failed to locate them in a safe position, and failed to employ a fuse in the switch.

This Court has stated, consistently and repeatedly, the duty of a power company with regard to the use and location of uninsulated electrical wires:

"The duty of an electric company, in conveying a current of high potential, to exercise commensurate care under the circumstances, requires it to insulate its wires, and to use reasonable care to keep the same insulated, wherever it may reasonably be anticipated that persons, pursuing business or pleasure, may come in contact therewith. This statement of the rule implies that, in the absence of statute or municipal ordinance, it is not necessary to insulate wires which are so placed that no one could reasonably be expected to come in proximity to them."

Foster v. Alabama Power Company, 395 So.2d 27, 30 (Ala.1981), citing Curtis on Law of Electricity, § 510. In other words, Alabama Power must either insulate its electrical lines, or locate them in a position where they pose no danger to human life. However, the duty to insulate does not arise absent notice, actual or constructive, that persons may come into contact with the uninsulated wires. Alabama Power Company v. Alexander, 370 So.2d 252 (Ala.1979).

On the other hand, whether a power company has a duty to use a fuse or some type of automatic circuit breaker in its switches is being presented to this Court for the first time. Armstrong cites Alabama Power Company v. Guy, 281 Ala. 583, 206 So.2d 594 (1967), as general support for this duty. That case is distinguishable because the plaintiff therein alleged that he was injured as a result of Alabama Power's failure to properly maintain and repair the oil circuit breaker. Whether there was a duty to use an oil circuit breaker in the first place was not an issue.

Other jurisdictions, however, have recognized a power company's duty to employ a fuse or some other safety device when it is foreseeable that persons may come into contact with the uninsulated wire. Ledet v. Lockport Light and Power Co., 15 La.App. 426, 132 So. 272 (1931); Abilene Gas and Electric Co. v. Thomas, 194 S.W. 1016 (Tex.Civ.App.1917). There was also deposition testimony in this case by an expert that a fuse provides protection to persons who may come into contact with an uninsulated wire. Several electrical engineering experts testified and agreed that the power company's failure to employ a fuse in this switch fell below good electrical practices. From this arises an inference that when there arises a need to protect persons from harm, there is a duty to use a fuse instead of a solid link. The testimony was that a fuse would have "blown" and the wire would have been de-energized, substantially reducing the severity of the injuries to Bush and Armstrong.

Neither the duty to insulate an electrical wire nor the duty to use a fuse which quickly de-energizes a wire after a fault arises unless it is foreseeable that persons may come into contact with the wire. The ultimate test of a duty to use care is found in the foreseeability that harm may result if care is not exercised. Havard v. Palmer & Baker Engineers, Inc., 293 Ala. 301, 302 So.2d...