Potomac Elec. Power Co. v. Smith

• Decision Date: 01 September 1988
• Docket Number: No. 1395,1395
• Parties: POTOMAC ELECTRIC POWER COMPANY v. Doris J. SMITH, et al. ,
• Court: Court of Special Appeals of Maryland

Page 591

79 Md.App. 591

558 A.2d 768

POTOMAC ELECTRIC POWER COMPANY v. Doris J. SMITH, et al.

No. 1395, Sept. Term, 1988.

Court of Special Appeals of Maryland.

June 8, 1989.

Kevin J. McCarthy (Catherine A. Cronin and McCarthy, Bacon, Costello & Stephens, on the brief) Landover, for appellant

Paul D. Bekman, Scott R. Scherr, Baltimore, John J. Sellinger of Rockville, and Bill Wagner of Tampa, Fla., for amicus curiae, Association of Trial Lawyers of America and The Maryland Trial Lawyers Ass'n.

J. Joseph Curran, Jr., Atty. Gen., Judson P. Garrett, Jr., Deputy Atty. Gen., Kathryn M. Rowe and Robert A. Zarnoch, Asst. Attys. Gen., for amicus curiae, State.

David P. Sutton of Washington, D.C. (Steven M. Cooper, Douglas J. Adams and Steven M. Cooper, Chartered, Silver Spring, on the brief for appellees, Smith and the Estate of Chrisianthia Lambert).

(Gary R. Alexander and Jay R. Goldman and Alexander & Cleaver, P.A., Fort Washington, on the brief, for appellee, George Calvin Lambert).

Argued before WILNER, ALPERT and BLOOM, JJ.

ALPERT, Judge.

Almost a century ago, it was observed that "electricity is the most powerful and dangerous element known to science; it cannot be seen, and it is as silent as it is deadly...." Overall v. Louisville Elec. Light Co., 47 S.W. 442, 443-44 (Ky.1898) ¹. The electrocution of fifteen-year-old Chrissy Lambert by the force of an errant 7600 volt power line begat judgments against the Potomac Electric Power Company ("PEPCO" or "the Company") in the total or aggregate amount of $7,852,000. Those judgments spawned this appeal, which presents us with a number of interesting yet perplexing legal issues.

Facts

On September 20, 1986, fifteen-year-old Chrisianthia Lambert was electrocuted when she came in contact with a 7600 volt electric power line owned by PEPCO. The accident occurred on a path located in the Hil-Mar area of Forestville in Prince George's County.

PEPCO does not own the land where the accident occurred, but it had acquired from the owners an easement giving it the right to install, erect, and maintain in, on, over or under the area, all electrical transmission and distribution equipment necessary to serve its utility customers. The easement further provides that the owners of the land may use the right-of-way easement for ingress and egress to other lands owned by them, provided they first notify PEPCO in writing of this use and PEPCO grants permission. Although under the terms of the easement the Company had the right to restrict ingress and egress through the easement, PEPCO did not exercise that right. There were no signs prohibiting use of the right-of-way path; nor were there any gates or fences around the area preventing the public from using the right-of-way. A fair reading of the evidence indicates that the general public was at least The accident was caused by a power line carrying 7600 volts of electricity. The power line was suspended between two utility poles about 500 feet apart. According to PEPCO, it was required by the National Electrical Code to maintain the power line at least 25 feet above ground; however, at the time of the accident the power line had fallen to about 2 or 3 feet above ground for a distance of about 20 to 25 feet in close proximity to the adjacent pathway. As thus positioned, it was variously described by eyewitnesses as a "dull gray" object resembling a "rope," a "rope covered with dust," a "railing" and an "ordinary cable." Police officers and a paramedic who responded to the scene were unable to recognize the downed power line as such when they first observed it, and they did not become aware of its dangerous character until further inspection traced it to the two poles to which it was attached.

                tacitly permitted to use the right-of-way path and did use it without any restriction.   Testimony elicited at trial revealed that the path was regularly used by children and adult residents of the neighborhood for jogging, riding of motor bikes, walking of dogs, and travel to and from different locations in the area, including the Andrew Jackson Middle School, to which the path directly leads
                

The power line fell because a cross-arm to which it was attached broke. According to the testimony of James Taylor, a timber product specialist, the cross-arm should have been rejected at the time of installation in 1964 because of the excessive number of knots in the wood. He further testified that approximately ten years before the fatal accident the cross-arm should have been replaced when one side of it broke, but that the company chose instead to refasten the overhead power lines to its opposite side. It was this side that broke in 1986, causing the power line to fall.

According to the testimony of various witnesses at the trial, PEPCO was on notice of the fallen power line prior to the accident. Wendell Corbin, an electrician who lived in the neighborhood, testified that on or about August 17 Another neighborhood resident, Gregory Joseph Fuller, testified that on September 7, 1986, some neighborhood children told him that a power line was down behind his house. He walked down the path behind his house and saw a power line sagging about two feet above the ground. He testified that he immediately went home, called PEPCO, and told the company that a power line was down. He gave the operator the location of the downed power line and told her that it was located in an area that children used all the time. He also gave PEPCO his phone number for call-back purposes. The operator allegedly asked him what the pole number was, but he could not give her that information. She told him that someone from PEPCO would be there to repair it. PEPCO has no record of this call either.

                1986 he saw the fallen power line while walking his dog along the path.   He testified that he examined the power line with a "static probe" that he carried in his pocket and discovered that electricity was running through it.   He then called PEPCO, reported that a live power line was down, gave the location of the power line, and further advised PEPCO that the power line was in an area frequented by children.   He was told that the company would take care of it.   PEPCO has no record of this call
                

PEPCO did acknowledge that on September 17, 1986, it received a complaint from a Mr. Turner about a power line down and burning in the Hil-Mar area at the end of the apartment projects along a dirt road. The company dispatched a repair truck to the area. Mr. George Nicholas Pappas, a lead line mechanic for PEPCO, testified that he was sent to investigate the complaint on September 17, 1986. According to his testimony, he alighted from the truck and commenced inspection of the area. He walked along the path, but did not go as far down as where the accident later occurred because some youths who were further down the right of way path threatened to hurt him if he got closer. He did not radio the police for assistance, but got back into the truck and drove around the area looking for the downed power line. He then notified the On September 20, 1986 fifteen-year-old Chrissy Lambert, the decedent, and Janea Stanford, a friend she had recently met, walked along the path located on PEPCO's right-of-way easement to a nearby shopping mall. On their way back that afternoon, Ms. Lambert came into contact with the downed power line and was electrocuted. Ms. Sanford testified that the decedent was walking about two feet behind her, to her right, at a point close to the downed power line near the edge of the path. They were engaged in conversation during their walk back, and following a conversational pause Ms. Sanford heard a buzzing noise, looked back, and saw Ms. Lambert lying on the ground with her body shaking and her left arm extended up to the power line. The power line was emitting sparks at the point of contact. She ran home and told her parents.

                dispatcher that he was unable to find it.   In a complaint resolution form, however, Mr. Pappas reported that he "checked the right-of-way" path and "found (it) okay."   When questioned about this, Mr. Pappas testified that later that evening he found a power line draping low over a construction trailer in the same neighborhood and thought he had discovered the power line that was the subject of the earlier complaint.   This power line, however, was neither down nor burning.   As a result, the live power line remained undetected by PEPCO until the day of the fatal accident
                

Deborah Fiedler, a paramedic who treated the decedent at the scene, testified that she observed that Ms. Lambert had burn marks on her left arm near the elbow, her left leg, and her left buttock area. According to Ms. Fiedler, the largest burn was a third-degree burn on the left arm. Ms. Lambert had less severe burns on her right hand.

Two other witnesses testified as to the burns on Ms. Lambert's body. Ray Martin, an electrical engineer specializing in electrical injury investigations, concluded, from the photographs admitted into evidence, that the burns on the left arm were caused by direct contact with the fallen power line. In Mr. Martin's opinion, the burns on the left Dr. Dennis Smyth, an Assistant State Medical Examiner who performed the autopsy, testified that Ms. Lambert sustained target burns on her right hand and left buttock area. He testified that target burns are "frequently seen at the site of electricity entering the body."

buttock and left leg were electrical burns, but they were not caused by direct contact with the power line.

On the basis of all the testimony heard and the evidence admitted, the jury awarded the estate of Ms. Lambert $2,000 as compensatory damages and $7,500,000 as punitive damages. The jury awarded the parents of Ms. Lambert, Doris Smith and George Lambert, $500,000 in their wrongful death action. Thereafter, the court granted PEPCO's motion to limit the wrongful death damages under Section 11-108 of the Courts and...