Delmarva Power & Light Co. v. Burrows

• Decision Date: 19 August 1981
• Citation: 435 A.2d 716
• Court: United States State Supreme Court of Delaware
• Parties: DELMARVA POWER & LIGHT COMPANY, a Delaware corporation, Defendant Below, Appellant, v. Robert BURROWS, Plaintiff Below, Appellee.

Page 716

435 A.2d 716

DELMARVA POWER & LIGHT COMPANY, a Delaware corporation Defendant Below, Appellant, v. Robert BURROWS, Plaintiff Below, Appellee.

Supreme Court of Delaware.

Submitted April 15, 1981.

Decided Aug. 19, 1981.

Upon appeal from Superior Court. Affirmed.

Mason E. Turner, Jr. (argued), of Prickett, Jones, Elliott, Kristol & Schnee, Wilmington, for defendant-appellant.

Harold Schmittinger (argued) and William D. Fletcher, Jr., of Schmittinger & Rodriguez, P.A., Dover, for plaintiff-appellee.

Before HERRMANN, C.J., DUFFY and QUILLEN, JJ.

QUILLEN, Justice:

On March 19, 1972, Robert Burrows was assisting his neighbors, Katherine and Richard Hawkins, who were attempting to erect a television antenna on the roof of their rented house. Burrows was standing on the ground holding the antenna's base when its upper end touched Delmarva Power & Light Company's (Delmarva) uninsulated high voltage wires, one of which ran, according to Mr. Hawkins, over the eave of the house. Hawkins further testified that one could actually grab the wires while standing on the rooftop, that the pole supporting the wires was placed approximately two feet from the house, and that the wires would not be visible to one standing between his house and Burrows' trailer, Burrows' apparent location when the antenna touched the wires. Thus, the evidence clearly showed that a person moving on the rooftop, for whatever purpose (e. g., repair the roof, do chimney work, erect an antenna) was easily within touching distance of an uninsulated high voltage wire. In the case of Mr. Burrows, who was on the ground when the antenna touched the wire, a massive shock was received. As a result of the shock, Mr. Burrows suffers from brain damage. A Superior Court jury awarded Burrows $253,869.75 in his negligence suit against Delmarva, and Delmarva, asserting error in the trial, appeals.

I

Delmarva's first several contentions concern the Trial Judge's instructions on the standard of conduct required of Delmarva. Delmarva claims the Trial Judge erred in stating its duty of care: (A) by instructing that it was under a duty to protect the public from the negligence of others and to protect against causes over which it had no control; (B) by describing the duty as "doing everything that gives reasonable promise of preserving life ... regardless of difficulty or expense"; (C) by not instructing that its duty was only to protect against those things "probable" to happen, citing Hercules Powder Co. v. DiSabatino, Del.Supr., 188 A.2d 529, 534 (1963) for this latter contention; (D) by instructing that it had a duty to insulate the wires or provide warning signs regardless of the adequacy of the lines' location; (E) by failing to instruct that compliance with the National Electric Safety Code was evidence of due care; and (F) by failing to give a "no comparative negligence" instruction.

Delaware law measures duties owed in terms of reasonableness. One's duty is to act reasonably, as a reasonably prudent man (or entity) would. Robelen Piano Co. v. DiFonzo, Del.Supr., 169 A.2d 240, 244 (1961); State v. Arnold, Del. O. & T., 27 A.2d 81, 83 (1942); McKinney v. Reardon, Del.Super., 337 A.2d 514, 515 (1975). One breaches that duty by not protecting against an event that a reasonably prudent man would protect against. Stated differently, one's duty encompasses protecting against reasonably foreseeable events. See State v. Clark, Del.Supr., 20 A.2d 127, 129-30 (1941); Cannon v. Delaware Electric Power Co., Del.Super., 24 A.2d 325 (1941).

Against this background, we examine the Trial Judge's general instruction on Delmarva's duty:

"Now, ladies and gentlemen, an electric company is under a duty to safeguard the public against injury arising from use of its dangerous agency, whether damage arises from its negligence, negligence of others, or from causes over which it has no control, to extent of exercising reasonable care to correct or remove causes of danger if reasonably foreseeable and known to the power company; however, an electric company is not an insurer and is not liable for injuries unless it is guilty of some wrongful act or omission.

A power company must anticipate and guard against events which may be reasonably expected to occur, and its failure to do so is negligence, even though power companies may not anticipate the identical injury or incident that occurs.

The degree of diligence which a distributor of electricity must observe in the distribution of electricity is a very high degree of care and due care which must be observed in distribution of electricity requires that everything that gives reasonable promise of preserving life must be done regardless of difficulty or expense."

A.

The initial portions of this charge contain correct statements of the law: Delmarva's duty is stated to be to protect against "reasonably foreseeable" danger and "events which may be reasonably expected to occur" (emphasis added). Accordingly, we find no merit in Delmarva's claim that the Trial Judge erroneously placed it under a duty to safeguard against the negligence of others and against accidents beyond its control; the Trial Judge expressly limited such duties to "reasonably foreseeable and known" situations. See also, DiSabatino, 188 A.2d at 534, concerning the negligence of others.

B.

The latter portion of the general charge warrants more detailed comment, however. As noted, Delmarva claims that requiring "everything that gives reasonable promise of preserving life ... regardless of difficulty or expense" to be done imposes upon it responsibilities greatly in excess of traditional negligence standards. This portion of the charge apparently stems from Cook v. Wilmington City Electric Co., Del.Super., 32 A. 643, 645 (1892), and Johnson v. Delmarva Power & Light Co., Del.Super., 312 A.2d 634, 637-38 (1973). Viewed against our discussion of duties stated above, we recognize the argument that modest conflict might exist between our discussion and the charge derived from the Cook and Johnson decisions. We note, however, that the Cook and Johnson portion of the charge in this case does not state a limitless duty. Only that which gives "reasonable promise of preserving life" (emphasis added) is required. And, when read in conjunction with the initial portions of the charge, the Cook and Johnson portion here does not depart from the negligence standard nor amount to error.

C.

Turning now to Delmarva's claim that its duty extended only to protect against things "probable" to occur, we perceive a tension between our discussion of the concept of duty in negligence law and the language relied upon by Delmarva in DiSabatino as well as a tension within DiSabatino itself. In one paragraph of DiSabatino, a duty is imposed to protect against "reasonably foreseeable" events, consistent with our discussion above, while in the preceding paragraph of that same opinion, relied upon by Delmarva, protection is required only against events foreseen as "probable" to happen. 188 A.2d at 534. As we view this apparent conflict between DiSabatino's descriptions of duty, a duty to protect only against events foreseen as probable to happen is something less than a duty to protect against events reasonably foreseeable, the latter, as we have noted, being the proper standard.

In negligence actions the question is whether the risk of particular consequences is "sufficiently great to lead a reasonable man ... to anticipate them, and to guard against them." W. Prosser, The Law of Torts 145 (4th ed. 1971). While the social utility of the activity must be balanced against the risk, "the question is not one of mathematical probability alone" and "(a)s the gravity of the possible harm increases, the apparent likelihood of its occurrence need be correspondingly less." Id. at 147-48.

Accordingly, we must view the "probable to happen" language in DiSabatino as a slight departure from true negligence theory. In this case, the Trial Judge correctly did not instruct in terms of probability.

D.

Later in the instructions, relating to Burrows' specific allegations of negligence, the Trial Judge stated:

"The second allegation is that the wires were not properly insulated and the plaintiff Robert Burrows alleges that the defendant Delmarva Power & Light Company was negligent when it failed to properly insulate its high voltage power lines which were in close proximity to residential rooftops when it was reasonably foreseeable that persons conducting reasonably foreseeable activities would come in contact...