Lee v. Farmer's Rural Elec. Co-Op. Corp.

• Decision Date: 19 October 2007
• Docket Number: No. 2006-CA-001641-MR.,2006-CA-001641-MR.
• Citation: 245 S.W.3d 209
• Parties: Mary E. LEE, Individually and as Personal Representative of the Estate of Ricky L. Lee, Appellant, v. FARMER'S RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.
• Court: Kentucky Court of Appeals

245 S.W.3d 209

Mary E. LEE, Individually and as Personal Representative of the Estate of Ricky L. Lee, Appellant, v. FARMER'S RURAL ELECTRIC COOPERATIVE CORPORATION, Appellee.

No. 2006-CA-001641-MR.

Court of Appeals of Kentucky.

October 19, 2007.

Douglas P. Desjardins, Michael B. Ely, Washington, DC, Joseph B. Venters, Daniel J. Venters, Somerset, for appellant.

Donald P. Moloney, II, Bryan H. Beauman, Lexington, for appellee.

Before: DIXON and VANMETER, Judges; GRAVES,¹ Senior Judge.

OPINION

DIXON, Judge.

Appellant, Mary Lee, appeals from an order of the Barren Circuit Court granting summary judgment in favor of Appellee Farmer's Rural Electric Cooperative Corporation ("FRECC"), in this wrongful death action. Because we conclude that the trial court erred in finding that no duty existed as a matter of law, we reverse and remand the matter for further proceedings.

On October 16, 2003, Ricky Lee accompanied Stanley Thompson on a local flight aboard a Cessna aircraft that departed the Vine Grove Airport in Hardin County, Kentucky. The two men took off from the airport around 5:00 p.m. and proceeded toward Nolin River Lake in Grayson County. While flying over one of the river channels, Thompson's plane struck an unmarked power line owned by FRECC that stretched across the channel. The plane crashed into the water and both men drowned.

Ricky Lee's widow and Appellant herein, Mary Lee, filed a negligence action in the Barren Circuit Court alleging that FRECC was liable for the accident because it failed to mark the power line in question. Appellant's complaint asserted that FRECC was under a duty to mark the line because it was aware or should have been aware (1) of the hazard posed by unmarked electrical lines; (2) that there had been another crash involving an electrical line over Nolin Lake; and (3) that aircraft frequently fly over the lake. Following discovery, FRECC filed a motion for summary judgment claiming that it was under no statutory or common law duty to mark its lines. The trial court agreed and granted the motion. This appeal ensued.

The standard of review on appeal when a trial court grants a motion for summary judgment is whether the trial court correctly found that there were no genuine issues as to any material fact and that the moving party was entitled to judgment as a matter of law. CR 56. The trial court must view the evidence in the light most favorable to the nonmoving party, and summary judgment should be granted only if it appears impossible that the nonmoving party will be able to produce evidence at trial warranting a judgment in his favor. Steelvest, Inc. v. Scansteel Service Center, Inc., 807 S.W.2d 476, 480 (Ky.1991). Because summary judgment involves only legal questions and the existence of any disputed material issues of fact, an appellate court need not defer to the trial court's decision and will review the issue de novo. Lewis v. B & R Corp., 56 S.W.3d 432, 436 (Ky.App.2001) (citations in footnotes omitted).

Appellant argues that the trial court erred in granting summary judgment in favor of FRECC because a jury could have reasonably concluded that Lee died as a result of FRECC's negligence. She contends that FRECC was aware of the danger that its unmarked power line posed, was aware of a previous crash over Nolin Lake where a helicopter collided with another utility's power line, and knew that planes often flew over the lake. Appellant presented evidence that the wire Thompson's plane collided with was a single residential power line that was less than 1/4 inch in diameter. The line extended 870 feet across the lake at a height of approximately 85 feet above the water. Further, the supporting structures on either side of the lake were concealed by trees and vegetation. Thus, Appellant concludes that an accident, such as occurred herein, was foreseeable. FRECC counters that it was under no statutory or common law duty to mark its power line and that Thompson's violation of FAA regulations was the proximate cause of Lee's death.

To recover under a claim of negligence in Kentucky, a plaintiff must establish that (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached its duty, and (3) the breach proximately caused the plaintiff's damages. See Mullins v. Commonwealth Life Insurance Co., 839 S.W.2d 245 (Ky.1992). Whether the defendant owed a duty is a question of law for the court to decide. Id.; Pathways, Inc. v. Hammons, 113 S.W.3d 85, 88 (Ky.2003). Whether the defendant breached its duty is generally a question of fact for the jury. See Pathways, 113 S.W.3d at 89. The Kentucky Supreme Court has noted that the duty analysis is "essentially . . . a policy determination[,]" Mullins, supra at 248, and "is but a conclusion of whether a plaintiff's interests are entitled to legal protection against the defendant's conduct." Sheehan v. United Services Automobile Association, 913 S.W.2d 4, 6 (Ky.App.1996).

Kentucky courts recognize a "universal duty" of care under which "every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury." Grayson Fraternal Order of Eagles, Aerie No. 3738, Inc. v. Claywell, 736 S.W.2d 328, 332 (Ky.1987). In general, due to the dangerous nature of electricity, an electric utility company is chargeable with the highest degree of care to protect all persons in all places they have a right to be. Lambert v. Franklin Real Estate Company, 37 S.W.3d 770 (Ky.App.2000); see also Kentucky Power Company v. Carter, 321 S.W.2d 410, 413 (Ky.1959). "In constructing and maintaining electrical lines the highest degree of caution must be exercised for the protection of all persons at places where they have a right to go, because in dealing with so deadly an instrumentality the highest degree of care and skill known in the conduct of such business to prevent injury to such persons is required." Vaught's Adm'x v. Kentucky Utilities Co., 296 S.W.2d 459, 461 (Ky. 1956). However, we are of the opinion that while the highest standard of care may be appropriately imposed in an action for injuries by electrical shock, because the circumstances of accident herein did not involve the inherently dangerous properties of electricity, the proper standard of care is ordinary care. Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 158 (Mo. Banc.2000). See also Florida Power and Light Co. v. Lively, 465 So.2d 1270, 1276, n. 5 (Fla.Dist.Ct.App. 1985).

In Kentucky, the scope and character of a defendant's duty is largely defined by the foreseeability of the injury: "[E]very person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury. Even so, such a duty applies only if the injury is foreseeable." Isaacs v. Smith, 5 S.W.3d 500, 502 (Ky.1999) (citations and quotation marks omitted) (emphasis added). "[F]oreseeability is to be determined by viewing the facts as they reasonably appeared to the party charged with negligence, not as they appear based on hindsight." James v. Wilson, 95 S.W.3d 875, 891 (Ky.App.2002).

Foreseeability inquiries are often complicated by the tendency to confuse foreseeability and proximate cause. Whether a harm was foreseeable in the context of determining duty depends on the general foreseeability of such harm, not whether the specific mechanism of the harm could be foreseen. See, e.g., Bolus v. Martin L. Adams & Son, 438 S.W.2d 79, 81 (Ky.1969) ("It is not necessary, to impose liability for negligence, that the defendant should have been able to anticipate the precise injury sustained, or to foresee the particular consequences or injury that resulted. It is enough that injury of some kind to some person could have been foreseen."); Eaton v. Louisville & N.R. Co., 259 S.W.2d 29 (Ky.1953) (precise form of injury need not be foreseen). In determining whether an injury was foreseeable, we look to whether a reasonable person in a defendant's position would recognize undue risk to another, not whether a reasonable person recognized the specific risk to the injured party. In Pathways, Inc. v. Hammons, supra, our Supreme Court held:

Foreseeable risks are determined in part on what the defendant knew at the time of the alleged negligence. "The actor is required to recognize that his conduct involves a risk of causing an invasion of another's interest if a reasonable man would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence, and judgment as a reasonable man would have." Restatement (Second) of Torts § 289(a) (emphasis added); see also Mitchell v. Hadl, Ky., 816 S.W.2d 183, 186 (1991). (Holding that liability for negligence is based on what the defendant was aware of at the time of the alleged negligent act and not on what the defendant should have known in hindsight.) The term "knowledge of pertinent matters" is explained by Restatement (Second) of Torts § 290, which states:

For the purpose of determining whether the actor should recognize that his conduct involves a risk, he is required to know (a) the qualities and habits of human beings and animals and the qualities, characteristics, and capacities of things and forces in so far as they are matters of common knowledge at the time and in the community; and (b) the common law, legislative enactments, and general customs in so far as they are likely to affect the conduct of the other or third persons.

Pathways, supra, at 90.

Turning to the case herein, Appellant concedes that FRECC was under no statutory duty to mark the power line in question.² Further, both parties acknowledge that Kentucky has not previously addressed the issue of whether a utility has a common law duty to mark its power lines under these circumstances. We note that other jurisdictions are split on the issue. See Randy J. Sutton, Liability of Owner of Wires, Poles, or Structures Struck by Aircraft...