Groncki v. Detroit Edison Co.

• Decision Date: 30 December 1996
• Docket Number: Nos. 101954,102212,Nos. 11-13,102650 and 103455,s. 101954,s. 11-13
• Parties: Gerald GRONCKI and Cheryl Groncki, Plaintiffs-Appellees, v. The DETROIT EDISON COMPANY, a Michigan corporation, Defendant-Appellant. Barbara BOHNERT, Executrix of the Estate of Wendell Bohnert, Deceased Plaintiff-Appellee, v. The DETROIT EDISON COMPANY, Carrington Homes, Inc., Roy Adkins and Ernestine Adkins, Defendants-Appellants. Theodore R. PARCHER, Jr., Yvonne M. Parcher, Individually and as Next Friend of Amanda Mae Parcher, a minor, Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY, a Michigan corporation, Defendant-Appellee. Calendar
• Court: Michigan Supreme Court

Page 289

557 N.W.2d 289

453 Mich. 644

Gerald GRONCKI and Cheryl Groncki, Plaintiffs-Appellees, v. The DETROIT EDISON COMPANY, a Michigan corporation,

Defendant-Appellant.

Barbara BOHNERT, Executrix of the Estate of Wendell Bohnert, Deceased Plaintiff-Appellee, v. The DETROIT EDISON COMPANY, Carrington Homes, Inc., Roy

Adkins and Ernestine Adkins, Defendants-Appellants.

Theodore R. PARCHER, Jr., Yvonne M. Parcher, Individually and as Next Friend of Amanda Mae Parcher, a minor, Plaintiffs-Appellants, v. The DETROIT EDISON COMPANY, a Michigan corporation,

Defendant-Appellee.

Nos. 101954, 102212, 102650 and 103455.

Calendar Nos. 11-13.

Supreme Court of Michigan.

Argued Oct. 9, 1996.

Decided Dec. 30, 1996.

Simkins & Simkins, P.C. by Anne Craig and Sheila R. Thorp, Northville, for plaintiffs-appellees in Groncki.

Cubbon & Associates Co., L.P.A. by Stuart F. Cubbon, Toledo, OH, for plaintiff-appellee in Bohnert.

Michael J. Mangapora, Flint, for plaintiffs-appellants in Parcher.

Plunkett & Cooney, P.C. by Ernest R. Bazzana, Detroit, for Detroit Edison Company.

Conlin, McKenney & Philbrick, P.C. by Allen J. Philbrick, Ann Arbor, for defendant-appellant Carrington Homes.

James E. Brunner and Catherine M. Reynolds, Jackson, amici curiae for Consumers Power Company.

Clark Hill P.L.C. by Duane L. Tarnacki and J. Walker Henry, Detroit, for Michigan Manufacturers Association.

Grylls, Facca, Richter & Pregler, P.C. by Patrick A. Facca, Royal Oak, for the Greater Detroit Chapter, AGC Michigan Chapter, and Associated Carpenter Contractors of Michigan, Inc.

Opinion

BRICKLEY, Chief Justice.

These cases were combined for review because they all concern allegations of negligence on the part of a power company resulting in harmful contact with uninsulated overhead power lines. Each of the cases against Detroit Edison was decided on summary disposition regarding the issue of duty. This Court reviews summary judgments de novo and must review the entire record to see if the defendant was entitled to summary disposition. Adkins v. Thomas Solvent Co., 440 Mich. 293, 302, 487 N.W.2d 715 (1992). The existence of a legal duty is a question of law for the Court to decide. Trager v. Thor, 445 Mich. 95, 516 N.W.2d 69 (1994).

Also before the Court is Barbara Bohnert's suit against defendant Carrington Homes, Inc. This suit alleges that Carrington is also liable for the electrocution death of her husband under Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). This case was also decided by a grant of summary judgment for the defendant, which was reversed by the Court of Appeals. Therefore, the standard of review is also de novo. The issues relating to Carrington will be discussed separately from those concerning Edison.

I. Facts

A. Parcher v. Detroit Edison

Theodore Parcher ¹ was electrocuted while moving a twenty-nine-foot high scaffold on a forklift on July 25, 1990. He was twenty-nine years old at the time of the accident and was working as a forklift operator at the construction of a supermarket. The power lines were sixty-five feet from the building, and thirty-five feet above the ground. The accident occurred as Mr. Parcher attempted to reverse around a pile of debris, bringing the scaffolding into contact with the power lines. Edison owned and operated the lines at the time of the accident, knew of the ongoing construction, and had agreed to move one of the poles to accommodate a parking lot that was being built along with the building. The power lines had been in place for a number of years before the construction began. Further, Mr. Parcher's employer had warned workers at the site of the presence of the power lines. Mr. Parcher's injuries resulted in the amputation of his right arm, right leg, and left foot.

The defendant was granted summary disposition on December 23, 1992. This decision was affirmed by the Court of Appeals on January 24, 1995. In its opinion, the Court of Appeals found that the accident was not legally foreseeable and therefore, the defendant owed the plaintiff no legal duty. 209 Mich.App. 495, 531 N.W.2d 724 (1995).

B. Groncki v. Detroit Edison

Gerald Groncki was a maintenance supervisor at a condominium complex and was injured when a ladder that he was moving came into contact with an uninsulated overhead electrical line. As a result, the plaintiff went into cardiac arrest and suffered burns of his left foot. He remained in the hospital for approximately ten days and a toe on his left foot was amputated. Mr. Groncki also alleges that various cognitive difficulties and personality changes resulted from his injuries. Mr. Groncki's wife has also filed a loss of consortium claim. ²

On the day of the accident, Mr. Groncki was working on the roof of a condominium with another employee. The men were using a twenty-four-foot aluminum ladder to gain access to the roof. Mr. Groncki had warned the other worker about the danger of working near the power lines. After the other employee left to work in a different area, Mr. Groncki attempted to move the ladder by himself. Unfortunately, he lost control of the ladder, which fell onto the power lines. The power lines were twenty-one feet high Edison was awarded summary disposition by the circuit court on May 27, 1992. The Court of Appeals reversed this decision on December 27, 1994. The Court of Appeals determined that it was foreseeable that someone using an aluminum ladder could be injured by the power lines. This ruling is now appealed by the defendant to this Court. ³

and 14-1/2 feet from the building. The lines had been in place for six years before the portion of the complex on which Mr. Groncki was working had been built. Further, Mr. Groncki worked on the construction of the complex and was familiar with its facilities.

C. Bohnert v. Detroit Edison

This case concerns the fatal electrocution of Wendell Bohnert on October 10, 1989, at a home construction site. ⁴ Mr. Bohnert was a delivery man for National Cement Products of Toledo, Ohio. At the time of the accident, he was fifty-eight years old and had been delivering masonry supplies for National Cement Products for forty years. On October 10, 1989, Mr. Bohnert was delivering a load of cement blocks that had been ordered by the president of Carrington, Stephen Dick. No one was at the site when Mr. Bohnert arrived, so he began to unload his truck unsupervised. In doing so, despite the presence of specific warnings on the truck, Mr. Bohnert deployed the boom of his truck beneath power lines. Unfortunately, the boom touched the power lines and Mr. Bohnert was killed. The electrical lines were located twelve feet from the house and at a height of twenty-six feet. The power lines were uninsulated. Edison, who owned and controlled the lines, was aware of the construction and had inspected the site. Edison refused to insulate or move the power lines free of expense, but informed the home owner that this could be done for a fee. However, Edison reviewed the planned location of the house and requested that the homeowners move it four feet farther away from the lines in order to achieve a twelve-foot clearance. The homeowners complied with this request.

The plaintiff, Mr. Bohnert's wife, alleges that Edison was negligent in failing to insulate, relocate, or de-energize the wires, and in failing to warn her husband of their presence. Mrs. Bohnert also alleges that Carrington, a licensed general contractor, is liable as a general contractor under this Court's decision in Funk. Carrington disputes this and claims to have been one of many subcontractors performing work on a "cost plus" basis. Carrington argues that it only performed construction as requested by the homeowners, who were their own general contractors. However, a local ordinance requires a licensed general contractor to manage the construction. Furthermore, Mr. Dick, the president of Carrington, gave deposition testimony that Carrington was the general contractor. Further, Carrington claimed to have been the general contractor during oral argument before the circuit court.

Both Edison and Carrington were awarded summary disposition in circuit court. However, these decisions were reversed by the Court of Appeals in an unpublished per curiam opinion. The Court of Appeals found that there was a question of fact regarding whether the injury was foreseeable by Edison and whether the site was a common work area under the authority of Carrington. Both defendants Edison and Carrington appeal this ruling.

II. Claims Asserted Against Detroit Edison

A. Statement of Law Applicable to Each Plaintiff

The scope of the duty owed by electrical companies to move, insulate or de-energize overhead power lines is a question of foreseeability. Schultz v. Consumers Power Co., 443 Mich. 445, 452, 506 N.W.2d 175 (1993). Utility companies, particularly electric companies, are charged with a duty to protect against foreseeable harm. Id.

In Dees v. L F Largess, 1 Mich.App. 421, 136 N.W.2d 715 (1965), the plaintiff was electrocuted when a crane came into contact with overhead power lines owned by Detroit Edison. The plaintiff, a construction worker, was holding a hook hanging from a crane when the crane's cable contacted a power line. The Court of Appeals upheld a directed verdict for Detroit Edison. The Court found that Detroit Edison was not negligent in failing to anticipate that a skilled workman, with full knowledge of the wires, would come into contact with these wires through the cable of a crane. Id. at 427, 136 N.W.2d 715.

In Koehler v. Detroit Edison Co., 383 Mich. 224, 174 N.W.2d 827 (1970), the plaintiff was killed while riding on the arm of a crane as part of his employment at a construction site, when the crane's arm came into contact with overhead electrical cables. This Court upheld the trial court's determination that the electrical company owed no duty to the plaintiff, despite its knowledge of the construction. Id. at 231, 174...