Fowler v. Tennessee Valley Authority, 15101

• Decision Date: 12 June 1963
• Docket Number: No. 15101,15102.,15101
• Citation: 321 F.2d 566
• Parties: Sue FOWLER, a minor, widow of Bonnie Eugene Fowler, deceased, by next friend, Ruby Lewis, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee. Ruby LEWIS, widow of Austin C. Lewis, deceased, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

321 F.2d 566 (1963)

Sue FOWLER, a minor, widow of Bonnie Eugene Fowler, deceased, by next friend, Ruby Lewis, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.

Ruby LEWIS, widow of Austin C. Lewis, deceased, Plaintiff-Appellant, v. TENNESSEE VALLEY AUTHORITY, Defendant-Appellee.

Nos. 15101, 15102.

United States Court of Appeals Sixth Circuit.

June 12, 1963.

H. H. Gearinger, Chattanooga, Tenn., for plaintiffs-appellants, Moore, Gearinger & Swafford, Chattanooga, Tenn., on the brief, Camp & Camp, Sparta, Tenn., of counsel.

Thomas A. Pedersen, Asst. Gen. Counsel, Knoxville, Tenn., for defendant-appellee, Charles J. McCarthy, Gen. Counsel, Tennessee Valley Authority, Beauchamp E. Brogan, Knoxville, Tenn., on the brief.

Before MILLER and O'SULLIVAN, Circuit Judges, and PRETTYMAN,^* Senior Circuit Judge.

PRETTYMAN, Senior Circuit Judge.

These law suits arose from a horrible and deplorable occurrence. Two young men, married to sisters, undertook to erect for their father-in-law an outdoor television antenna. The families gathered at the home, and the young men set to work. They put the base of the aluminum pole in the ground. The pole tipped over and fell onto electric power lines in front of the house. The family, gathered in the living room, heard a loud "boom" and, running out, found the young men on the ground, apparently unconscious and partly in contact with the antenna. In about fifteen or twenty seconds there was a second loud noise, and the aluminum pole became white hot, giving off sparks, and remained in that condition for some fifteen minutes. The bodies of the two young men were completely cremated.

The surviving widows sued the McMinnville Electric System and the Tennessee Valley Authority for negligence. They settled with the McMinnville Electric System. The District Court granted summary judgment for the Tennessee Valley Authority,¹ and the plaintiffs appealed.

The McMinnville Electric System is a distribution system owned by the City of McMinnville, Tennessee. It purchases its electric power from the Tennessee Valley Authority under a written contract. Delivery of the power occurs through a substation of the Authority in the nearby City of Sparta.

The Authority had installed on its side of the delivery point at the substation an automatic circuit breaker. It is the theory of the plaintiffs that this circuit breaker was designed as a safety device "and its intended use was relied upon by the defendant McMinnville Electric System to the knowledge of the defendant Tennessee Valley Authority, so as to shut off the electric current in the wires when anything came into contact and remained in contact with the wires so controlled by the said switch. * * * Because of faulty design, construction and installation and negligent maintenance the switch malfunctioned and failed to again instantly dis-engage upon its automatically having re-engaged. * * * Said accident and the death of the decedent * * * were the result of the negligence. * * *"² The plaintiffs further averred and argued that the operation of the circuit breaker device constituted notice to the Authority of trouble on the line.

The Authority answered the complaint, attaching to its answer as an exhibit a copy of the contract with the McMinnville System. The Authority then filed a motion for summary judgment, submitting affidavits of the manager of the McMinnville System, of the Director of the Power Planning and Engineering Division of the Tennessee Valley Authority, and of the Authority's substation operator. Depositions were taken.

The contract provided that neither party thereto should be responsible for installing at any delivery point equipment for the protection of the other party's facilities, or for damages to the other's system resulting from the failure of its own protective devices. The contract further provided that the municipality was to furnish and maintain all the lines and electrical equipment from the point of delivery on the municipality's side of the delivery point; and further that the Tennessee Valley Authority was not obligated to inspect the municipality's facilities and that the Authority's failure to inspect should not render it liable or responsible for any loss or damage resulting from accidents occurring on the municipality's premises. The affidavits recited in considerable detail facts concerning the circuit breaker and its operation and the ownership and operation of the electric lines. The affiants asserted that on the date in question the circuit breaker was in good condition and operating normally as designed. The Director of the Planning Division asserted in his affidavit that the circuit breaker had two purposes, one to protect the Authority's equipment and the other to assure continuity of service. He asserted that, when short circuits or overloads of...