Orthman v. Idaho Power Co., 20940

Decision Date23 May 1995
Docket NumberNo. 20940,20940
Citation895 P.2d 561,126 Idaho 960
PartiesRussell ORTHMAN and Nancy Orthman, husband and wife, and Nancy Orthman, natural mother and guardian on behalf of all minor children of the parties, Plaintiffs-Appellants, v. IDAHO POWER COMPANY, an Idaho corporation, Defendant-Respondent. Boise, January 1995 Term
CourtIdaho Supreme Court

Evans, Keane, Boise, for defendant-respondent. Rex Blackburn argued.

TROUT, Justice.

This is a negligence action which was dismissed by the trial court on a Rule 12(b)(6) motion, for failure to state a claim upon which relief can be granted. The appellants, Russell and Nancy Orthman (Orthman), are alleging that respondent Idaho Power Company (Idaho Power) was negligent because it knew or should have known that Russell Orthman would attempt to reconnect his power after Idaho Power allegedly wrongfully terminated it.


The Orthman complaint alleges that on April 22, 1993, Russell Orthman, a farmhand, was electrocuted at his home in rural Lincoln County. The complaint further alleges that Orthman was electrocuted while attempting to reconnect power to his farm, which service was provided by Idaho Power. Orthman alleged that the electrocution was caused or contributed to by the negligence of Idaho Power in the way it terminated the power service. Specifically Orthman asserted that Idaho Power had a duty relating to the maintenance, care and control of the electric distribution lines and a duty to warn Russell Orthman of any known and potential dangers and to properly disconnect the power, all of which were not correctly performed, resulting in Russell Orthman's electrocution. Due to the electrocution, Russell Orthman lost both legs, the use of his hands, and sustained internal injuries. In response, Idaho Power filed a 12(b)(6) motion seeking to dismiss the complaint.

The trial court, ruling on the 12(b)(6) motion, held:

In my view, there is not a duty owed. That there, as a matter of law, cannot be a proximate link between the contractual measures of termination and the steps taken by the Plaintiff in this case to attempt to self help.

In my view as a matter of law the self help is not foreseeable and could not have been a foreseeable consequence of the termination process even if the termination process was wrongful. That the remedy to be involved would be a contractual remedy, or a regulatory remedy through PUC but would not be the self help involved here.

Additionally, the district court ruled that the act of attempting to reconnect was an intervening cause that would intercept any negligence on the part of Idaho Power. The case is now before us on appeal from the grant of the motion to dismiss.


Prior to the argument on the motion to dismiss, Orthman filed affidavits in response to the motion and there was some indication that the parties argued this as a motion for summary judgment. I.R.C.P. 12(b) states:

If, on a motion asserting the defense numbered (6) to dismiss for failure of the pleading to state a claim upon which relief can be granted, matters outside the pleading are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56....

The trial court made no reference to the affidavits submitted in opposition to the motion to dismiss, and it is clear from reviewing the oral ruling of the trial court that this motion was treated purely as a motion to dismiss, and not one for summary judgment. Not only did the court talk about the problems with dismissing a case on the pleadings, in his oral ruling the judge specifically recited that "under 12(b)(6) I'm going to dismiss the case on the pleadings." It is not necessary that the trial court recite that it is not considering matters outside of the pleadings, at least in instances such as this where the court makes it very clear that the ruling is based entirely on the pleadings. Thus, we When we review an order of the district court dismissing a case pursuant to I.R.C.P. 12(b)(6), the non-moving party is entitled to have all inferences from the record viewed in his favor. Miles v. Idaho Power Co., 116 Idaho 635, 637, 778 P.2d 757, 759 (1989). After drawing all inferences in the non-moving party's favor, we then ask whether a claim for relief has been stated. Id. "The issue is not whether the plaintiff will ultimately prevail, but whether the party is 'entitled to offer evidence to support the claims.' " Greenfield v. Suzuki Motor Co. Ltd., 776 F.Supp. 698, 701 (E.D.N.Y.1991) (quoting Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974)). When pleading a negligence cause of action, a detailed statement of the circumstances is not necessary, and a general allegation of negligence is sufficient. Id.

[126 Idaho 962] review the trial court's ruling as a grant of the motion to dismiss, rather than summary judgment.


Orthman's sole claim for relief is based upon allegations of Idaho Power's negligence. Therefore, the complaint must allege elements of common law negligence which include (1) a duty, recognized by law, requiring the defendant to conform to a certain standard of conduct; (2) a breach of duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual loss or damage. Alegria v. Payonk, 101 Idaho 617, 619, 619 P.2d 135, 137 (1980) (citing Brizendine v. Nampa Meridian Irrigation Distr., 97 Idaho 580, 548 P.2d 80 (1976)).

For the purposes only of withstanding a motion to dismiss under Rule 12(b)(6), we hold that the complaint adequately alleges the elements of a negligence action. Previously, this Court has established the duty of care associated with the transmission of electricity. We have held that the highest degree of care must be exercised by those engaged in generation and transmission of electric energy. Probart v. Idaho Power Co., 74 Idaho 119, 258 P.2d 361 (1953). However, we have also found that this duty is not absolute. We do not require a power company to guard against all possibilities, rather we require the company to reasonably guard against probabilities. Id. at 128, 258 P.2d at 366 (citing Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43 (1944); Webb v. Louisiana Power & Light Co., 199 So. 451 (La.Ct.App.1940); Oklahoma Gas & Electric Co. v. Wilson, 172 Okl. 540, 45 P.2d 750 (1935); Hauser v. Pacific Gas & Elec. Co., 133 Cal.App. 222, 23 P.2d 1068 (1933)).

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