Kirton v. Williams Elec. Co-op., Inc.

• Decision Date: 03 May 1978
• Docket Number: No. 9423,9423
• Citation: 265 N.W.2d 702
• Court: North Dakota Supreme Court
• Parties: Michael KIRTON, Individually and as next friend of Terri Kirton, a minor, Plaintiff and Appellant, v. WILLIAMS ELECTRIC COOPERATIVE, INC., a corporation, Defendant and Appellee. Civ.

Page 702

265 N.W.2d 702

Michael KIRTON, Individually and as next friend of Terri Kirton, a minor, Plaintiff and Appellant, v. WILLIAMS ELECTRIC COOPERATIVE, INC., a corporation Defendant and Appellee.

Civ. No. 9423.

Supreme Court of North Dakota.

May 3, 1978.

Rolfstad, Winkjer, McKennett, Kaiser & Stenehjem, Williston, for plaintiff and appellant; argued by Mark L. Stenehjem, Williston.

McIntee & Whisenand, Williston, for defendant and appellee; argued by Frederick E. Whisenand, Jr., Williston.

ERICKSTAD, Chief Justice.

This is an appeal by Michael Kirton, individually and as next friend of Terri Kirton, a minor, plaintiff and appellant, from a judgment of the Williams County District Court. The summary judgment granted by the district court dismissed Kirton's wrongful death action against Williams Electric Cooperative, Inc., a corporation, defendant and appellee (hereinafter Williams Electric), for the death of Elizabeth Kirton.

Elizabeth Kirton was electrocuted on August 16, 1976, while assisting a neighbor lady install a citizen's band radio antenna. The antenna apparently came into contact with an uninsulated 7,200 volt Williams Electric power line which passed overhead. In October 1976, Kirton commenced this action against Williams Electric based on the grounds of negligence and the maintenance of a nuisance. In August 1977, Williams Electric filed a motion for summary judgment and a hearing was held on this motion on October 26, 1977. The motion was granted by the district court and judgment was entered on October 25, 1977, dismissing the complaint.

The district court, in its order granting defendant summary judgment, stated its reasons for granting the motion. The court first found no genuine issue of any material fact and then said:

"The Court has concluded that the defendant in these proceedings, in the absence of special circumstances not present in this case, was not required to anticipate that a person would negligently attempt to erect a CB radio antenna in such a manner that it could come in contact with the electric power transmission line of the defendant where such electric power transmission line was in good condition and not in violation of any minimum construction standards or statutory requirements; the Court further concludes that there was no duty or obligation on the part of the defendant to the plaintiff's decedent to avoid the injury complained of, nor is there any duty on the part of the defendant to anticipate that the plaintiff's decedent would assist in the installation of a CB radio antenna next to an electric power transmission line on a windy day; and the Court reaches the further conclusion that the maintenance of the electric power transmission line by the defendant at the point and place where the alleged injury took place did not constitute a private or public nuisance nor was there any legal obligation on the part of the defendant to insulate its electric power transmission line at said point and place; that in reaching its decision herein, the Court makes specific reference to the decisions in Clinton v. Commonwealth Edison Company, 344 N.E.2d 509 (Ill.1976) (correct citation: 36 Ill.App.3d 1064, 344 N.E.2d 509 (1976)), and Moum v. Maercklein, 201 N.W.2d 399 (N.D.1972)."

In Clinton v. Commonwealth Edison Company, 36 Ill.App.3d 1064, 344 N.E.2d 509 (1976), relied on by the district court, a 15-year-old boy was electrocuted when a 25 foot aluminum pole he was holding apparently came into contact with a 7,200 volt electrical line. The circuit court granted a motion for a directed verdict and this verdict was upheld by the appellate court. The appellate court held that there was no duty owed to the boy by the defendant power company because the occurrence was not reasonably foreseeable.

In Moum v. Maercklein, 201 N.W.2d 399 (N.D.1972), the other case referred to in the district court's order, we reversed a judgment of a district court based on a jury verdict finding negligence and assessing damages. In that case, the Soo Line Railway Company had called an employee to report to work when it was snowing and driving conditions were hazardous. The employee en route to work attempted to pass a vehicle and collided with a vehicle heading in the opposite direction. In reversing the judgment, we held that the unforeseen negligence of the employee in attempting to pass a vehicle when visibility was very poor made the defendant's negligence, if any, in calling the employee to work, a remote and not a proximate cause of the injury. Moum is distinguishable from the case now before us in three respects: (1) the fact situations are different; (2) we were discussing proximate cause in Moum rather than duty; (3) Moum reached this court after a full trial on the merits rather than after summary judgment.

In this case, the court concluded that Williams Electric owed no duty to protect Elizabeth Kirton from injury under the circumstances. This lack of duty was based on the trial court's determination that under the circumstances Williams Electric could not reasonably have anticipated that someone would come into contact with the power line at that location. On this basis, the district court dismissed the negligence ground of the complaint.

The first issue before us, then, is whether or not the district court properly granted the summary judgment motion dismissing the negligence ground of the complaint on the basis of its finding that there was no duty owed by Williams Electric to protect Elizabeth Kirton from injury.

This court, in Olson v. Cass County Electric Cooperative, Inc., 94 N.W.2d 506 (N.D.1959), dealt with the issue of the duty of an electric power distributor. Syllabus PP 3 and 4 of that opinion read:

"3. While a distributor of high voltage electricity is not an insurer it does have the duty in erecting and maintaining its transmission lines to exercise care commensurate with the dangers involved.

"4. Care commensurate with the danger involved in the transmission and distribution of high voltage electricity includes reasonable inspection of transmission lines. The duty to inspect is not confined to areas of dense population but applies as well to transmission lines over agricultural land." 94 N.W.2d at 508.

An electric power distributor in North Dakota, therefore, must exercise care commensurate with the dangers involved. ¹ It must specifically make a reasonable inspection of its transmission lines.

There have been many cases in other jurisdictions which have dealt with other duties of a distributor of electric power. Of particular importance to this case is the duty placed on a distributor of electric power by other jurisdictions to insulate its transmission lines or to isolate them effectively whenever it may be reasonably anticipated that others may come into close proximity to such lines. Stated in another way, a distributor of electric power has a duty to take reasonable precautions whenever it may be reasonably anticipated that persons may come into contact with its transmission lines. Clinton v. Commonwealth Edison Company, supra, 36 Ill.App.3d at 1068, 344 N.E.2d at 513; Sonier v. Louisiana Power & Light Co., 293 So.2d 24, 26 (La.App. 1 Cir. 1974); Mississippi Power & Light Company v. Shepard, 285 So.2d 725, 729 (Miss.1973); Donovan v. Union Electric Company, 454 S.W.2d 623, 626 (Mo.App.1970); Weisser v. Otter Tail Power Company, 318 F.2d 375, 377 (8th Cir. 1963). It is not necessary, though, that the power company should anticipate the exact or particular injury or the exact or particular manner in which it may occur. Mississippi Power & Light Company v. Shepard, supra at 729; Donovan v. Union Electric Company, supra at 626.

We agree that an electric power distributor has a duty to insulate or isolate its transmission lines or at least to reasonably warn of the dangers whenever it can be reasonably anticipated that persons may come into contact with the lines and be injured. In other words, distributors of electric power must take precautions commensurate with the dangers involved whenever it is to be reasonably anticipated that persons may come into contact with its transmission lines.

The district court below concluded that the injury involved in this case was not one that could have been reasonably anticipated by the power company, and therefore held that there was no duty under the circumstances of this case. Kirton contends on this appeal that whether or not the injury in this case was foreseeable or one to be anticipated is a question of fact for the jury to determine.

In Clinton v. Commonwealth Edison Company, supra, 36 Ill.App.3d at 1068, 344 N.E.2d at 513, the court said that the determination of whether or not there is a duty is a question of law and that foreseeability is one of the elements the court must consider. Courts in several other jurisdictions, though, have stated that whether or not an injury was foreseeable or to be anticipated is a question of fact for the jury. Sonier v. Louisiana Power & Light Co., supra at 26; Mississippi Power & Light Company v. Shepard, supra at 739; Delta Electric Power Association v. Burton, 240 Miss. 209, 126 So.2d 258, 261 (1961).

We agree with the courts that have held that the question of whether or not the injury was one that could have reasonably been anticipated is a question of fact for the jury. That is not to say, however, that a court may not decide that issue as a matter of law where the facts are such that reasonable men could not differ. Georgia Power Co. v. Williams, 132 Ga.App. 874, 877, 209 S.E.2d 648, 650 (1974); Donovan v. Union Electric Company,supra at 626-27; Weisser v. Otter Tail Power Company, supra at 376, 378.

Whether or not the district court properly ruled, as a matter of law, that the injury was not reasonable foreseeable, depends upon the circumstances of this particular case.

One of the most important considerations in this case is that the court based its conclusions...