Porter v. Delmarva Power & Light Co.

• Decision Date: 08 March 1988
• Citation: 547 A.2d 124
• Parties: Leon M. PORTER, Sr. and June Porter, Individually and as next friends of the minor plaintiff, Brian K. Porter, Plaintiffs Below, Appellants, v. DELMARVA POWER & LIGHT COMPANY, a Delaware corporation, City of Dover, Delaware, a municipal corporation, Delaware Home Builders Corporation, a Delaware corporation, Defendants Below, Appellees. . Submitted:
• Court: Supreme Court of Delaware

Page 124

547 A.2d 124

Leon M. PORTER, Sr. and June Porter, Individually and as

next friends of the minor plaintiff, Brian K.

Porter, Plaintiffs Below, Appellants, v. DELMARVA POWER & LIGHT COMPANY, a Delaware corporation, City

of Dover, Delaware, a municipal corporation,

Delaware Home Builders Corporation, a

Delaware corporation,

Defendants Below, Appellees.

Supreme Court of Delaware.

Submitted: March 8, 1988.

Decided: Aug. 11, 1988.

I. Barry Guerke, (argued) of Parkowski, Noble & Guerke, P.A., Dover, for appellants.

F. Alton Tybout, and Nancy E. Chrissinger, (argued) of Tybout, Redfearn, Casarino & Pell, Wilmington, for appellee Delmarva Power & Light Co.

Robert K. Pearce, (argued) of Trzuskowski, Kipp, Kelleher & Pearce, P.A., Wilmington, for appellee City of Dover.

David H. Williams, and Francis J. Jones, Jr. (argued) of Morris, James, Hitchens & Williams, Wilmington, for appellee Delaware Home Builders Corp.

Before MOORE, WALSH and HOLLAND, JJ.

WALSH, Justice.

This is an appeal from a grant of summary judgment in the Superior Court, which barred recovery by a minor for injuries sustained while climbing an electric utility pole. The Superior Court ruled that the City of Dover ("Dover"), the owner of the pole, Delmarva Power & Light Company, ("Delmarva") whose high voltage lines were attached to the pole, and Delaware Home Builders Corporation, ("Delaware Home"), the owner of the real property to which the pole was attached, were all entitled to protection of 25 Del.C. § 1501, which precludes recovery by noninvitees for injury on residential and farm premises, in the absence of willful or intentional conduct. Plaintiffs, the parents and next friend of the injured child, Brian Porter ("Brian"), contend that the Superior Court's construction of the statute is erroneous as a matter of law. We agree and hold that plaintiffs' claim is not controlled by the farm premises statute but rather by common law principles. Accordingly, we reverse.

I

The circumstances of the minor plaintiff's injuries are not in dispute. Brian lived in a residential development, adjacent to a vacant lot in which neighborhood children often played. This lot, in turn, bordered a corn field through which Dover maintained pole lines over an easement granted by a predecessor in title of Delaware Home. On the date in question, October 12, 1981, Brian was searching for two lost dogs and climbed the pole to view the adjacent area. The pole was not enclosed nor were there any warning signs or barricades to prevent climbing. Climbing pegs, the lowest of which was 12 to 18 inches from the ground, permitted access to the top of the pole. Brian, believing the pole was a telephone pole, proceeded to climb it when he apparently came close to the high voltage lines owned by Delmarva. An electric shock, arcing from these lines, caused him to fall from the pole and sustain serious injury.

The pole in question had been installed in 1975 as the result of an agreement between Dover and Delmarva to connect their respective electric distribution systems. Originally the easement for the pole line had been owned by Delmarva but had been transferred to Dover in connection with the construction of the new pole line. Through a joint use agreement, Delmarva continued to transmit electricity over the pole line through high voltage lines in order to serve a customer in the area, while Dover maintained the poles.

Plaintiffs' complaint against Dover, Delmarva and Delaware Home posits liability on the doctrine of attractive nuisance. Specifically, it is claimed that all three entities permitted a dangerous and hazardous instrumentality to exist on land over which they exercised joint responsibility, with knowledge that children frequented the area. ¹ Since it is clear that plaintiffs do not contend that the defendants are guilty of conduct which can be characterized as "intentional," "willful" or "wanton," all defendants moved for summary judgment invoking the applicability of 10 Del.C. § 1501. That statute, sometimes referred to as the premises guest statute, provides:

§ 1501. Liability of owners or occupiers of land for injury to guests or trespassers.

No person who enters onto private residential or farm premises owned or occupied by another person, either as a guest without payment or as a trespasser, shall have a cause of action against the owner or occupier of such premises for any injuries or damages sustained by such person while on the premises unless such accident was intentional on the part of the owner or occupier or was caused by the willful or wanton disregard of the rights of others.

The plaintiffs argued in the Superior Court, and in this Court as well, that the terms "premises" must be limited to the uses which normally attend residential property or farm lands. To extend the concept to land-connected instrumentalities of a commercial and industrial nature, plaintiffs contend, is to accord to the premises guest statute a meaning not reasonably intended. Moreover, it is argued, the easement rights of Dover and Delmarva do not entitle them to immunity as "owners or occupiers," nor can the statute be read to preclude a child trespasser whose claim is based on the concept of attractive nuisance.

In granting summary judgment, the Superior Court adopted a literal reading of section 1501 and ruled that: (1) the utility pole was located on farm premises "occupied" by both Dover and Delmarva and (2) the statutory term "person" included a child trespasser in derogation of the common law doctrine of attractive nuisance. We disagree with both rulings.

II

In holding that Dover and Delmarva, as easement grantees, shared Delaware Home's status as an occupier of the premises, the Superior Court placed principal reliance upon this Court's decision in Acton v. Wilmington and Northern R. R. Co., Del.Supr., 407 A.2d 204 (1979). In Acton, this Court, in affirming the grant of summary judgment against an eleven year old child struck by a train on a railroad right-of-way, ruled that the defendant railroad was an "occupier" within the meaning of the premises guest statute. The railroad, which had secured its right-of-way through condemnation, was determined to have the clear right to occupy the right-of-way through operation of its trains. Acton, however, was decided under a predecessor premises guest statute which made no distinction between uses of the premises. ² The current version of the statute was amended with the obvious purpose of restricting its application to residential and farm premises, to the exclusion of commercial and industrial uses. With respect to the status of Dover and Delmarva this distinction is critical and requires further examination of the extent to which these separate and identifiable uses may claim statutory protection.

Dover acquired the easement in question in 1975 through a written easement agreement from a predecessor in title of Delaware Home. Subsequently, Dover and Delmarva entered into an agreement under which both entities jointly shared design and use of the pole line to be erected on the easement. The 1975 agreement granted Dover a perpetual easement to a "25 foot wide strip of land" for the following purposes:

2. The purpose of the easement shall be for Grantees, its successors or assigns, to have the uninterrupted right, privilege and authority to enter upon and construct, erect, extend, renew, operate, replace, relocate, repair and perpetually maintain a pole line with the necessary wires, cross arms, guy wires and other usual fixtures and appurtenances, as may be necessary for the convenient transaction of grantees' business on said land and on and along the said streets or highways adjacent thereto.

3. The easement shall include the right of ingress and egress to construct, renew, repair, relocate and/or remove the aforesaid facilities presently existing on the premises and those to be constructed or erected in the future and the right to trim, cut and remove trees and underbrush and other obstructions that are within 20 feet of any wire strung on said pole line.

While the agreement further provided that the grantor could use the land covered by the easement, such use was not to be "inconsistent with the purposes for granting this easement or not in interruption of the business of the Grantee to be conducted upon said easement." Thus, even though the underlying premises might remain farm land, thereby permitting the grantor to use the land under the pole line for farming, the nature of the easement, and the pole line it supported, was industrial--the transmission of electrical energy. ³

In focusing on the nature of the underlying farm premises and not on the use of the easement, the Superior Court erred. The premises/function distinction which the statute, in its present form, reflects was inserted to limit the class of property owners who could claim the protection of the statute. Moreover, since it is the pole, not the farm land under it, which is the instrumentality claimed to have caused injury, the underlying rationale of the statute, limiting the liability of residential and farm occupiers, is not served by seeking to extend its protection to industrial or commercial occupiers. It need hardly be noted that the hazards which attend industrial and commercial activities, and the attendant restrictions to access by noninvitees, implicate liability considerations different from those of farm and residential use. We conclude, therefore, that under the circumstances of their actual use of the easement, Dover and Delmarva may not be deemed occupiers of farm premises.

III

Having concluded that Dover and Delmarva may not invoke the protection of section 1501, we next address the question of whether Delaware Home as the acknowledged occupier of the underlying land may invoke the statute to bar plaintiffs' claim bottomed on attractive nuisance. In doing so, we accord to plaintiffs, as did the court below, the...