Estrada v. Potomac Elec. Power Co., 84-44.

• Decision Date: 13 March 1985
• Docket Number: No. 84-44.,84-44.
• Citation: 488 A.2d 1359
• Parties: Shell ESTRADA, et al., Appellants, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.
• Court: D.C. Court of Appeals

Page 1359

488 A.2d 1359

Shell ESTRADA, et al., Appellants, v. POTOMAC ELECTRIC POWER COMPANY, Appellee.

No. 84-44.

District of Columbia Court of Appeals.

Argued February 12, 1985.

Decided March 13, 1985.

Michael Maggio, Washington, D.C., for appellants.

James P. Salmon, Upper Marlboro, Md. with whom Charles E. Channing, Upper Marlboro, Md., was on brief, for appellee.

Before NEWMAN, FERREN and ROG-ERS, Associate Judges.

PER CURIAM:

This case comes before us on appeal from the trial court's grant of summary judgment. We affirm the judgment for the reasons expressed in the appended opinion of the trial court, per the Honorable George Herbert Goodrich, filed November 28, 1983, which opinion is incorporated herein.

MEMORANDUM OPINION AND ORDER

Facts:

On July 31, 1979, at approximately 7:20 p.m., plaintiffs Shell Estrada, age 11, and Andrew Canter,^* age 12, were severely burned by an electrical discharge inside defendant Potomac Electric and Power Company's (PEPCO) Wildecroft Substation at 6904 Riverdale Road, Lanham, Maryland. A third child, Timothy Irwin, age 13, who was at the scene, was unharmed.

The plaintiffs are both Maryland residents and live across the street from the Wildecroft substation. PEPCO, a public utility exclusively licensed to provide electrical service in the District of Columbia, a small portion of Arlington County, Virginia, and most of Montgomery County and Prince George's County, Maryland, is incorporated and maintains its corporate headquarters in the District.

On the day before the accident, Andrew and Timothy went to the substation to play. While aware of signs posted on the doors of the substation indicating the possibility of electrical shock, the boys entered the substation by removing an aluminum grate situated between the main building wall and the substation's decorative wall. They accomplished this by climbing upon a platform, pushing the grate open with a stick and unscrewing the screws that secured the grate. On this day, the boys only peeked inside the building and replaced the grate.

On the following morning, Andrew and Timothy again went to the substation, climbed up on the platform, removed the grate and entered the substation. After noticing several bees' nests, the boys exited unharmed. Later that afternoon, around 4:30 p.m., PEPCO security conducted an inspection of the substation. The metal grating that had been dislodged by the boys was not discovered.

Later that evening, the boys invited plaintiff Estrada to join them to view the bees' nests. Shell, also aware of the danger sign on the door, entered the substation in the manner Andrew and Timothy had adopted, and with their assistance. Once inside, the boys approached a bees' nest, as they walked along an I-beam. As they began to exit, electricity was discharged from the adjacent transformers, severely burning Shell Estrada and Andrew Canter.

Plaintiffs' Claim:

Plaintiffs' cause of action is in three counts. First, the plaintiffs claim that PEPCO was negligent in the design and maintenance of the Wildecroft substation. Second, under the rubric of "attractive nuisance," plaintiffs assert that PEPCO created an unreasonable risk of serious bodily harm to the minor plaintiffs by failing to take the appropriate steps necessary to prevent the harm, when PEPCO knew or should have known that children were likely to play in or about the substation. Finally, plaintiffs' parents assert a derivative claim for the expenses incurred and companionship lost as a result of their children's injuries.

Defendant's Claim:

PEPCO argues, and the plaintiffs concede, that application of Maryland law to the case at bar warrants summary disposition in defendant's favor.¹ The court agrees; and must undertake, therefore, the task of determining the appropriate law to be applied.²

Court's Ruling:

Choice of law involves examination not simply of various state interests generally, but of their interests regarding the various distinct issues to be adjudicated. In re Air Crash Disaster at Washington, D.C., 559 F.Supp. 333, 341 (D.D.C. 1983).³ The issue sub judice is whether the District of Columbia or Maryland has the most substantial interest in determining the nature of defendant's obligation, as landowner, towards the minor plaintiffs; or more particularly, which jurisdiction should regulate how the defendant maintains its Maryland property.

Defendant argues that since the issue in this case is one dealing with conduct regulation, and particularly with conduct respecting the maintenance of land, Maryland, as situs of that property, has the primary interest in determining whether conduct with its borders constitutes a tort against the plaintiffs who are also residents of that state. Cf. Tramontana v. S.A. Empresa de Viacao Aerea Rio Grandense, 121 U.S.App.D.C. 338, 350 F.2d 468 (1965), cert. denied, 383 U.S. 943, 86 S.Ct. 1195, 16 L.Ed.2d 206 (1966) (while the court recognized a District interest in Maryland residents, it found Maryland's interest primary, especially where Maryland would have denied recovery). Defendant submits that on these facts Maryland has the greater, if not only, interest in both the plaintiffs' welfare, and defendant's obligation; and has chosen, by virtue of its failure to adopt an "attractive nuisance" exception, to clearly define the duty of persons owning land in Maryland and not to impose upon them what Maryland courts consider to be "ill-advised" restraints upon use of land. State v. Fidelity Warehouse Co., 176 Md. 341, 4 A.2d 739 (1939).>⁴ The factual predicate underlying plaintiffs' claim that District of Columbia law should be applied includes the fact that while plaintiffs' injuries occurred in Maryland, per se, the incident took place within the Washington, D.C. metropolitan area. More significantly, however, plaintiffs assert, is the fact that the conduct causing plaintiffs' injuries occurred in the District.⁵

Plaintiffs' argument may be summarized as follows: Defendant PEPCO is a D.C. corporation with its corporate headquarters located in Washington, D.C. All policies and practices regarding the design, safety and security of the Wildecroft substation emanated from PEPCO offices and officials in the District. Therefore the District of Columbia has the most significant relationship with the manner in which its resident corporation conducts itself in the D.C. metropolitan area, warranting therefore the application of the attractive nuisance doctrine.⁶ Further support for plaintiffs' claim that the District has the most significant relationship comes in the form of deposition testimony by Mr. Brian Lederer, at that time People's Counsel for the District of Columbia charged with representing ratepayers before the Public Service Commission, D.C.Code § 43-406 (1981). Plaintiffs' account of Mr. Lederer's testimony begins by noting that D.C. ratepayers have a significant interest in the tort liability of PEPCO.⁷ Plaintiffs then offer the following theory to escape what would, at first blush, be the more obvious conclusion to be drawn from that proposition, namely that ratepayers would be better off if Maryland law is applied: If PEPCO is forced to conform to the standards of conduct reflected by the District's attractive nuisance doctrine, it will be compelled to make changes in its maintenance and security policies throughout its service area, the results of which will be to reduce the likelihood of injuries to children, thereby decreasing tort liability in the long run and reducing rates. Noticeably absent from Mr. Lederer's testimony, however, is any reference to differences between defendant's D.C. facilities and its Maryland ones with regard to safety-related components, or, for that matter, evidence that D.C. has suffered fewer instances of child injury than has Maryland which might be attributable to the "higher" standard required by the District. The court is not persuaded that its decision as to which jurisdiction has the most significant relationship to the issue of whether defendant's conduct constitutes negligence is to be determined by reference to what amounts to mere speculation on the potential impact of its ruling. Compare Myers v. Gaither, 232 A.2d 577, 584 n. 8 (D.C. 1967), affd, 131 U.S.App.D.C. 216, 404 F.2d 216 (1968) (where court notes that 5000 automobiles are stolen each year in the District and in almost 20%, car keys are left in the autos stolen: facts which lent support to the court's findings that D.C. interests would be significantly advanced by application of its law to an accident occurring in Maryland). Plaintiffs rely principally upon Myers v. Gaither, supra, and its application of D.C. law for the benefit of a Maryland resident in the case of an automobile accident occurring in Maryland.

In Myers, appellant appealed from an order of the trial court directing a verdict in favor of defendant. Appellant claimed, inter alia, that appellee, in violation of a District traffic regulation, had left his car keys in his vehicle, that this violation was negligence which permitted someone to steal the car and that appellee was therefore liable for the consequences of his omission.

The trial judge refused to admit the regulation on the ground that it was not supported by the evidence. In reviewing this ruling, the Court of Municipal Appeals noted that a conflict existed between Maryland and the District regarding the impact on a tort feasor's liability of the intervening acts of a thief. In Maryland, the theft was considered a supervening intervening cause barring the tortfeasor's liability; while in the District, auto theft was merely a dependent intervening cause and would not preclude liability. Consequently, the court noted that if Maryland law applied, the decision of the trial court would be upheld, albeit on different grounds. After discussing the Restatement (Second) of Conflicts'"most significant relationship" test, the court found:

The high incidence of auto...