Johnson v. Delmarva Power & Light Co.

• Decision Date: 27 September 1973
• Citation: 312 A.2d 634
• Parties: Robert E. JOHNSON, next friend of Robert E. Johnson, Jr., Plaintiff, v. DELMARVA POWER & LIGHT COMPANY, a Delaware corporation, Defendant.
• Court: Delaware Superior Court

Page 634

312 A.2d 634

Robert E. JOHNSON, next friend of Robert E. Johnson, Jr., Plaintiff, v. DELMARVA POWER & LIGHT COMPANY, a Delaware corporation, Defendant.

Superior Court of Delaware, New Castle County.

Sept. 27, 1973.

G. Thomas Sandbach of Biggs & Battaglia, Wilmington, for plaintiff.

Roger P. Sanders and Jan. S. Black of Prickett, Ward, Burt & Sanders, Wilmington, for defendant.

OPINION

WRIGHT, Judge.

Minor plaintiff, Robert E. Johnson, Jr., was injured on April 20, 1970, as a result of coming into contact with a piece of electrical equipment owned and maintained by the defendant, Delmarva Power and Light Company. This action is brought by the minor's next friend, Robert E. Johnson, to recover damages arising from his son's injuries.

On the date of the incident, plaintiff, then thirteen years old, was playing with one of his pet pigeons in a field near his home which is also adjacent to defendant's North Wilmington Power Substation. Structures of this type are used in the transmission of high voltage electricity.

The unit is surrounded by a chain link fence six feet tall. Above the fence are located three evenly spaced strands of barbed wire attached to supports so that they face inward at a forty-five degree angle. Attached to the fence are twelve 10 14 warning signs containing the legend--'Danger High Voltage'.

Plaintiff was apparently attempting to teach his pet to fly by throwing it into the air. Unfortunately, during one attempt a gust of wind caught the bird and carried him into the substation where it landed on one of the pieces of equipment. In an attempt to retrieve his pet, Robert, Jr. climbed the surrounding fence, then scaled a steel support to a height of approximately ten feet where the bird lay stranded. After grasping the animal and in his attempt to return to the ground, the bird fluttered from his hand striking the boy in the face causing him to come into contact with a highly charged circuit breaker bushing terminal thereby causing him severe injury.

This action was subsequently brought against defendant alleging that the child's injuries were proximately caused by its negligent failure to prevent access to the equipment. Defendant has moved for summary judgment denying any negligence on its part and alleging that the child was contributorily negligent as a matter of law.

Plaintiff contends that the law applicable to this case is that provided in Section 339, Restatement, Torts 2nd; and further, that application of the principles contained therein will result in a finding of negligence on the part of the defendant. Section 339 provides as follows:

'A possessor land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if

(a) the place where the condition exists is one upon which the possessor knows or has reason to know that children are likely to trespass, and

(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and,

(c) the children because of their youth do not discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and

(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and

(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.'

The section cited by plaintiff has been accepted as the law of Delaware by this court in the case of Moran v. Delaware Racing Association, 218 A.2d 452 (Del.Super.1966). Accordingly, the merit of plaintiff's case in determining the appropriateness of defendant's motion will be tested against the five requirements of the Restatement section cited above.

Plaintiff alleges and there is supporting evidence to the effect that there is a playground adjacent to defendant's substation. Further, there is evidence that the plaintiff himself as well as other neighborhood children had climbed either over or under the fence on previous occasions. Finally, it appears from the evidence that a guard or maintenance employee was present when children were playing in the adjacent lot. Subsection (a) requires that the possessor either have actual knowledge or reason to know that children are likely to trespass in the area where the danger exists. Considering the close proximity of the substation to the playground, the evidence that children frequently entered the area within the fence and the known observations of the employee, there is a reasonable issue of fact as to whether the defendant at the least should have known of the likelihood of trespass by children. Thus the issue should not be decided as a matter of law in a motion for summary judgment. Hoff v. Natural Refining Products Co., 38 N.J.Super. 222, 118 A.2d 714, at 717 (1955).

Subsection (b) in essence requires that the possessor realize or should realize that the condition known to him involves an unreasonable risk of death or serious bodily harm to children. Comment of the Restatement summarizes this subsection as requiring that the possessor know or have reason to know, that the particular condition exists upon his land, and that it is likely to be dangerous to trespassing children. The danger attendant with the transmission of electricity cannot be reasonably disputed and has been specifically recognized by the Delaware Supreme Court in Hercules Powder Company v. DiSabitino, 188 A.2d 529 (Del.1963). Accordingly, requirements of this subsection have clearly been met under the circumstances of this case.

Subsection (c) requires that the child, because of his youth, does not discover the condition or realize the risk involved in entering the dangerous area. Defendant has urged that, as a matter of law, this court rule that the minor plaintiff was of a sufficient age and maturity to realize the danger involved. However, defendant cites no case nor is there a decision in this state known to the court in which it has been determined as a matter of law that a minor of similar age was guilty of contributory negligence. To the contrary, there are two cases...