Dolata v. Ohio Edison Co.

• Decision Date: 12 August 1981
• Citation: 441 N.E.2d 837,2 Ohio App.3d 293
• Parties: , 2 O.B.R. 324 DOLATA, Admr., Appellee, v. OHIO EDISON CO., Appellant.
• Court: Ohio Court of Appeals

Page 293

2 Ohio App.3d 293

441 N.E.2d 837, 2 O.B.R. 324

DOLATA, Admr., Appellee, v. OHIO EDISON CO., Appellant.

Court of Appeals of Ohio, Ninth District, Medina County.

Aug. 12, 1981.

Syllabus by the Court

1. The propensity of youngsters to climb and play in trees is a propensity of which power companies must take cognizance and which renders possible injury to the child who comes into contact with power lines a reasonably anticipated fact.

2. A company may be held to answer in damages to one injured as a result of the failure of the company to exercise due care in the construction, maintenance or inspection of its equipment, if such injury may be anticipated with a reasonable degree of probability.

3. A company may not be held liable in damages to a person injured by contact with the company's equipment when the injury results from some unusual occurrence which the company, in the use of ordinary care, could not fairly anticipate or foresee as being within the range of reasonable probability.

4. A power company which erects and maintains equipment, including poles and lines, for the purpose of transmitting and distributing electrical current along, upon and through both the public and private property of others is bound to exercise the highest degree of care consistent with the practical operation of such business in the construction, operation, maintenance and inspection of such equipment.

Thomas W. Sharratt and Rees Davis, Cleveland, for appellee.

Daniel A. Cook, Lorain, and C. Nevada Johnson, Jr., Medina, for appellant.

BELL, Judge.

The Ohio Edison Company seeks to reverse the judgment rendered against it by a trial jury. Appellant argues that errors occurred during the course of the trial proceedings and that such errors were prejudicial in nature. Appellant's contentions are as follows:

"1. The maintenance of an electric line 30 feet above the ground running through a tree at said height, said height being substantially in excess of the minimum vertical clearance prescribed by the National Electric Safety Code, breaches no legal duty to a person climbing in said tree.

"2. In an action for wrongful death, expert opinion testimony as to pecuniary loss is limited to valuing the financial aid the beneficiaries would have received, based upon the facts which the evidence may warrant the jury in finding existed.

"3. Where the evidence shows only a nominal pecuniary loss to the beneficiaries, a verdict in excess of $50,000.00 for the wrongful death of ten year old child is excessive, resulting from the influence of passion or prejudice."

Facts

In August 1978, Wayne Allen Dolata resided with his parents, brothers and sisters in Medina County, Ohio. On the seventh day of that month, Wayne, along with other youngsters, was playing in and near a locust tree located on the Dolata property. In the course of this activity, Wayne, who, with his brother, had climbed the tree, somehow came into contact with a high voltage electric line and was killed. He was ten years old at the time.

An action for wrongful death was instituted at a later date by the administrator of the child's estate. Ohio Edison, the installer of the electric line in question, and the defendant in the administrator's action, denied liability. The cause proceeded to trial in the Court of Common Pleas of Medina County, and a verdict in the amount of $52,600 was rendered in favor of plaintiff. This verdict, reduced to final judgment, is the subject of the instant appeal. We discuss first defendant's assertions of error concerning the issue of liability, and next those concerning the issue of damages. Further facts are noted as they pertain to the issue under consideration.

I

The administrator's (hereafter plaintiff's) claim was one sounding in negligence. In brief, plaintiff contended that Ohio Edison (hereafter defendant) was negligent in the design, installation and maintenance of certain of its electrical lines, and that this negligence was the proximate cause of Wayne's death. Defendant denied this contention and added the defense of Wayne's contributory negligence to its answer.

Our inquiry begins with the question of the existence of defendant's duty, if any, to plaintiff's decedent on August 7, 1978.

" * * * 'In every instance, before negligence can be predicated of a given act, back of the act must be sought and found a duty to the individual complaining, the observance of which would have averted or avoided the injury' * * * " Palsgraf v. Long Island RR. Co. (1928), 248 N.Y. 339, 162 N.E. 99-100.

We are of the opinion, first, that defendant had a general and public duty which is best delineated by Judge Charles Bell of the Ohio Supreme Court in the following words from the syllabus of his opinion in Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347, 48 N.E.2d 103 :

"2. A power company erecting and maintaining equipment, including poles and wires, upon or along a public road, for the purpose of transmitting and distributing electrical current, is bound to exercise the highest degree of care consistent with the practical operation of such business in the construction, maintenance and inspection of such equipment and is responsible for any conduct falling short of that standard." (Emphasis added.)

Accord Thompson v. City of Slater (1917), 197 Mo.App. 247, 193 S.W. 971, 974; Mullen v. Wilkes-Barre Gas & Elec. Co. (1910), 229 Pa. 54, 77 A. 1108, 1109; Blackwell v. Alabama Power Co. (1963), 275 Ala. 123, 152 So.2d 670; Lamb v. Consumers Power Co. (1938), 286 Mich. 228, 281 N.W. 632, 636; Alabama Power Co. v. Taylor (1975), 293 Ala. 484, 306 So.2d 236; and Daltry v. Media Elec. Light, Heat & Power Co. (1904), 208 Pa. 403, 57 A. 833.

Included within the general duty of care to which reference has been made is a more specific obligation. The company must, in the construction, maintenance, and inspection of its line equipment, act to avoid causing injury to another if and when, such injury is one which might be reasonably anticipated.

The company is not required to foresee and/or anticipate each possible circumstance wherein injury might result to another by reason of some injurious contact with the company's lines. See, for instance, Pape v. Monongahela Power Co. (1969), 18 Ohio App.2d 91, 246 N.E.2d 910 . In Lazar v. Cleveland Elec. Illum. Co. (1975), 43 Ohio St.2d 131, 331 N.E.2d 424 , Stern, J., in his dissent, at page 145, 331 N.E.2d 424 stated, in part:

" * * * [T]he power company is not an insurer and need not give warnings of the dangers of suspended, uninsulated high-tension wires. * * * "

We also quote here the last paragraph of the syllabus of Hetrick:

"3. Such company is not liable to one injured as the result of some unusual occurrence that cannot fairly be anticipated or foreseen and is not within the range of reasonable probability."

But if it can be said that it was foreseeable that a child might well climb a tree and foreseeable that in doing so the child would come into contact with high voltage lines, the process of determining defendant's liability can be said to have fairly begun.

Much opinion dicta has been devoted to this particular question:

" * * * The immemorial habit of small boys to climb little oak trees filled with abundant branches reaching almost to the ground is a habit which corporations stretching their wires over such trees must take notice of. * * * " Temple v. McComb City Elec. Light & Power Co. (1907), 89 Miss. 1, 42 So. 874, 875.

Accord, see, inter alia: Klingensmith v. Traction Co. (1924), 18 Ohio App. 290, 299; Chickering v. Lincoln County Power Co. (1919), 118 Me. 414, 108 A. 460; Greene v. Lake Shore Elec. Ry. Co. (1930), 10 Ohio Law Abs. 7; Mullen v. Wilkes-Barre Gas & Elec. Co., supra; Thompson v. City of Slater, supra; Erikson v. Wisconsin Hydro Elec. Co. (1934), 214 Wis. 614, 254 N.W. 106, 107; Texas Gen. Util. Co. v. Nixon (Tex.Civ.App., 1935), 81 S.W.2d 250, 252.

The thrust of the foregoing opinions on this subject is capsulized in Blackwell v. Alabama Power Co., supra, in which the Alabama Supreme Court stated 152 So.2d at page 676:

" * * *.

" 'So it must be regarded as settled that one who maintains a dangerous wire carrying electricity through or near a tree, must anticipate that persons may climb the tree, unless the circumstances are such that the remoteness of the tree, or perhaps some other reason, makes it improbable that a person will climb the tree.'

" * * *."

We agree with the opinions expressed both in courts of this state and others: that the propensity of youngsters to climb and play in trees is a propensity of which power companies must take cognizance and which renders possible injury to the child who comes into contact with power lines, a reasonably anticipated fact.

In light of the foregoing discussion, we believe it proper to state the following rules applicable to circumstances similar to those before us in this cause:

A power company which erects and maintains equipment, including poles and lines, for the purpose of transmitting and distributing electrical current along, upon and through both the public and private property of others is bound to exercise the highest degree of care consistent with the practical operation of such business in the construction, operation, maintenance and inspection of such equipment.

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