Kemp v. Wisconsin Elec. Power Co.

• Decision Date: 25 November 1969
• Docket Number: No. 133,133
• Citation: 44 Wis.2d 571,172 N.W.2d 161
• Parties: Robert KEMP et al., Appellants, v. WISCONSIN ELECTRIC POWER CO., Respondent.
• Court: Wisconsin Supreme Court

Page 161

172 N.W.2d 161

44 Wis.2d 571

Robert KEMP et al., Appellants, v. WISCONSIN ELECTRIC POWER CO., Respondent.

No. 133.

Supreme Court of Wisconsin.

Nov. 25, 1969.

Rehearing Denied March 3, 1970.

[44 Wis.2d 573] The trial court granted the defendant's motions for summary judgment dismissing the complaint, and the plaintiffs now appeal.

John K. Brendel, Wauwatosa, Thomas R. Fahl, Wauwatosa, of counsel, for appellants.

Prosser, Zimmermann, Wiedabach, Koppa & Lane, Milwaukee, for respondent.

HEFFERNAN, Justice.

This is an action for damages resulting from injuries arising out of electrical burns suffered by the minor plaintiff-appellant, Daniel Kemp, on July 24, 1962. Robert Kemp, the father of Daniel, joined in bringing a separate action for damages sustained through medical bills and services lost as a result of his son's injuries.

The complaint of the plaintiffs was served on May 26, 1967. Summary judgment The decision of the trial judge set forth the following to be the uncontroverted facts as revealed in the pleadings and affidavits:

was granted the defendant on October 23, 1968.

'On or about 8:20 P.M. on July 24th, 1962, Daniel R. Kemp, the minor plaintiff, while controlling a gasoline powered model airplane by two 50-foot wire cables attached to the wing and held in his hand, contacted one of the electrical wires of the defendant corporation. Daniel was seriously injured. When the accident occurred he was standing between 40 and 50 feet west of the transmission lines. These lines extended from tower to tower and transmitted 138,000 volts of electricity. The wires carrying this electricity were uninsulated. The vertical clearance from ground to wire was at least 29 from at the point where the wire of the airplane contacted the wire of the defendant corporation. The towers supporting the wires were 573 feet apart. One tower was 314 feet from the point of contact and the other 259 feet from that point. On the tower pilings was a sign 'Warning of High Voltage.' The minor plaintiff on other occasions prior to the accident had seen the sign 'Warning of High Voltage' and he knew that the wires carried a higher voltage than the wires in his home.'

In granting the defendant's motions for summary judgment ¹ as to both causes of action, the trial court determined there was no substantial issue of fact to be tried.

'The rules under which this court approaches questions on summary judgments are well established.' Skyline Construction, Inc. v. Sentry Realty, Inc. (1966), 31 Wis.2d 1, 4, 5, 141 N.W.2d 909, 911.

"'The rules governing summary judgments are well known and have been frequently stated and explained by this court. Under the rule of Hyland Hall & Co. v. Madison Gas & Electric Co. (1960), 11 Wis.2d 238, 105 N.W.2d 305, and Dottai v. Altenbach (1963), 19 Wis.2d 373, 120 N.W.2d 41, we first examined (sic) the moving papers and documents to determine whether the moving party has made a prima facie case for summary judgment under sec. 270.635(2), Stats., and if he has, we then examine the opposing party's affidavits and other proof to determine whether facts are shown which the court deems sufficient to entitle the opposing party to a trial. If the material facts are not in dispute and if the inferences which may reasonably be drawn from the facts are not doubtful and lead only to one conclusion, then only a matter of law is presented which should be decided upon the motion. Voysey v. Labisky (1960), 10 Wis.2d 274, 103 N.W.2d 9; Rabinovitz v. Travelers Ins. Co. (1960), 11 Wis.2d 545, 105 N.W.2d 807; Bond v. Harrel (1961), 13 Wis.2d 369, 108 N.W.2d 552, 98 A.L.R.2d 330.'

"We have also pointed out on numerous occasions that a summary judgment is not to be easily granted, but only upon a clear showing that no substantial issue of fact exists.

"'We have often said that the power of the courts under the summary-judgment statute (sec. 270.635, Stats., 33 W.S.A., p. 309) is drastic and should be exercised only when it is plain there is no substantial issue of fact or of permissible inference from undisputed facts to be tried. * * *"' (Emphasis added.) Jahns v. Milwaukee Mut. Ins. Co. (1968), 37 Wis.2d 524, 527, 528, 155 N.W.2d 674, 676.

'The summary judgment procedure is not to be a trial on affidavits. A party opposing summary judgment defeats the motion if he shows by affidavits, or other proof, that there are substantial issues of fact or reasonable inferences which The plaintiffs take the position that (1) there exists a substantial issue of fact to be tried by the jury, and (2) that the defendant is strictly liable for injury resulting from escaping electricity (second cause of action).

can be drawn from the evidence. The [44 Wis.2d 576] court does not try the issues but decides on summary judgment whether there is a substantial issue to be tried. Buss v. Clements (1963), 18 Wis.2d 407, 412, 118 N.W.2d 928; Trczyniewski v. City of Milwaukee (1961), 15 Wis.2d 236, 238, 112 N.W.2d 725.' Jahns v. Milwaukee Mut. Ins. Co., supra, p. 530, 155 N.W.2d p. 678.

SUBSTANTIAL ISSUE OF FACT

Plaintiffs submit that a substantial factual issue exists as to whether defendant has complied with the applicable statutes and regulations dealing with the maintenance of their power lines and equipment. The applicable statutes involved are sec. 196.67, Stats., ² and sec. 196.74 ³ together with pertinent sections of the electrical code in Vol. 4 of the Wisconsin Administrative Code. Defendant's affidavits included a survey made by Harvey E. Bartelt, a registered land surveyor for the State of Wisconsin, who, on July 25, 1962, surveyed the wire and ground elevations of defendant's transmission lines at the scene of the accident. Defendant's moving papers also included the affidavit of Mr. Carl N. Peters, superintendent of transmission and underground engineering for defendant and a registered professional engineer, who stated, upon personal knowledge, that he was familiar with the requirements of the Wisconsin state electrical code and that the minimum requirements provided therein had been met at the scene of the accident.

These documents were sufficient to make a prima facie case for defendant that it had complied with the applicable statutes and regulations.

On the other hand, plaintiffs' affidavits and moving papers are insufficient to raise any issue concerning noncompliance with these statutes. Plaintiffs submitted, in defense of the motion for summary judgment, parts of a deposition of Carl N. Peters along with the affidavit of Robert Kemp. The only allegation of statutory noncompliance is in the affidavit of Robert Kemp and the assertion that the signs in the area of the accident merely stated 'Danger--High Voltage' and 'give no warning of the dangerous propensities of the wires located between the pylons * * * that such signs are improperly colored, upon information and belief, according to the Wisconsin Electrical Code * * * and that code requirements set forth only a minimum standard of care.' (Emphasis added.) An allegation based upon information and belief is not sufficient to raise a jury question on motion for summary judgment.

'* * * As we stated McChain v. City of Fond du Lac (1959), 7 Wis.2d 286, 290, 96 N.W.2d 607, and in Townsend v. Milwaukee Ins. Co. (1962), 15 Wis.2d 464, 113 N.W.2d 126, an affidavit upon information and belief is not sufficient to raise a jury question. We pointed out in McChain, supra, that such an affidavit is not an affirmance on knowledge and it is not proof. It does not satisfy the requirements of the statute, sec. 270.635(2), the 'setting forth such evidentiary facts. " McCluskey v. Thranow (1966), 31 Wis.2d 245, 253, 254, 142 N.W.2d 787, 791.

There is, therefore, no substantial factual issue as to defendant's not having complied with applicable regulations and statutes.

Nevertheless, plaintiffs argue that statutory compliance is only a minimum standard of care. On the other hand, defendant contends that compliance with the statutes and code requirements precludes any question of liability for the jury. Both parties have made their arguments concerning the statutes and regulations without inquiry into whether they are 'safety statutes,' the violation of which may be negligence per se. ⁴ However, as previously stated, the affidavits and documents before the trial court do not reflect that there was a substantial issue of fact concerning any possible violation of such statutes or regulations.

Of greater significance in this case is the well established rule that the enactment of safety statutes or legislation giving a commission jurisdiction over a certain activity does not abolish the duty arising under common-law negligence. ⁵ We stated in Blanchard v. Terpstra (1967), 37 Wis.2d 292, 299, 155 N.W.2d 156, 159

'* * * a safety statute merely establishes a minimum standard of care and the conduct, even though sanctioned or in conformity with the statute, is not thereby necessarily relieved of conforming to the common-law requirements of ordinary care. In any event the establishment of a statutory definition of negligence per se does not thereby result in a preemption of the entire negligence question. There remains the question of possible common-law negligence.'

The Restatement, 2 Torts (2d), p. 39, sets forth section 288C as follows: ⁶

'sec. 288C. Compliance With Legislation or Regulation

'Compliance with a legislative enactment or an administrative regulation does not prevent a finding of negligence where a reasonable man would take additional precautions.' ⁷

Thus, the question in the case at bar is whether plaintiffs, by their affidavits and moving papers, have alleged special facts or unusual circumstances sufficient to demonstrate a substantial issue of fact for a jury determination of whether the defendant breached a duty to plaintiffs in failing to take steps in addition to those required by statute and administrative regulation. ⁸

Plaintiffs allege that a...