Schultz v. Consumers Power Co.

• Decision Date: 01 January 1993
• Docket Number: No. 11,Docket No. 92313,11
• Citation: 506 N.W.2d 175,443 Mich. 445
• Parties: Alice M. SCHULTZ, Personal Representative of the Estate of Duane L. Schultz, Deceased, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan corporation, Defendant-Appellee. Calender,
• Court: Michigan Supreme Court

Page 175

506 N.W.2d 175

443 Mich. 445

Alice M. SCHULTZ, Personal Representative of the Estate of Duane L. Schultz, Deceased, Plaintiff-Appellant, v. CONSUMERS POWER COMPANY, a Michigan corporation, Defendant-Appellee.

Docket No. 92313.

Calender No. 11, Jan. Term, 1993.

Supreme Court of Michigan.

Argued Jan. 13, 1993.

Decided Aug. 31, 1993.

[443 Mich. 447] Van Benschoten, Hurlburt, Tsiros & Allweil, P.C. by Lawrence A. Hurlburt, Saginaw, for plaintiff-appellant.

Consumers Power Co. by W.E. Wisner, Jackson, for defendant-appellee.

OPINION

MALLETT, Justice.

In this wrongful death action brought by Alice Schultz, personal representative of the estate of Duane Schultz, we granted leave to determine whether defendant Consumers Power Company owed a duty of care to Duane Schultz to reasonably inspect, repair, and install its electric conductors. The Court of Appeals concluded, as a matter of law, that defendant owed no such duty. We reverse.

I

On July 13, 1983, the decedent, Duane Schultz, was electrocuted while assisting a friend, Keith Osmond, paint his house in Merrill, Michigan. The fatal electric current emanated from defendant's medium-voltage wire, installed in approximately 1937. The line contained two wires, one neutral and one uninsulated ¹ primary wire carrying a current of 4,800 volts. The primary wire was situated roughly fifteen feet, six inches from the house at a height of twenty-four feet.

The two men completed most of the painting from a moveable scaffold. However, to reach the peak of the house, they ascended a twenty-seven foot aluminum extension ladder. Once the peak was painted, Mr. Osmond began lowering the ladder. He testified that he pulled the ladder away from the house and, as it stood vertically, the decedent grabbed the ladder from the other side. At that instant, "there was a brilliant flash," and both men were electrocuted. Mr. Osmond, who survived, denied that the ladder contacted the wire.

Plaintiff filed suit, alleging that Consumers Power negligently failed to inspect and repair the wire that fatally injured the decedent. Additionally, plaintiff claimed that Consumers Power negligently installed the wire dangerously close to the Osmond residence. She asserted that the frayed wire allowed the electric current to "arc" ² from the wire to the nearby ladder. A jury found defendant negligent and awarded plaintiff $750,000. The jury concluded that plaintiff's decedent was not comparatively negligent.

The Court of Appeals reversed, ruling as a matter of law that plaintiff failed to establish that defendant owed the decedent a duty of care. The Court characterized the accident as a "fortuitous circumstance, not a contingency reasonably anticipated." Unpublished opinion per curiam, decided May 22, 1991 (Docket No. 118323), p. 2. We granted leave to appeal. ³

II

Generally, negligence is conduct involving an unreasonable risk of harm. The requisite elements of a negligence cause of action are that the defendant owed a legal duty to the plaintiff, that the defendant breached or violated the legal duty, that the plaintiff suffered damages, and that the breach was a proximate cause of the damages suffered. Roulo v. Automobile Club of Michigan, 386 Mich. 324, 192 N.W.2d 237 (1971). In the present case, we are only required to determine whether defendant owed a duty to plaintiff's decedent. The duty element questions whether an actor has a legal obligation "to so govern his actions as not to unreasonably endanger the person or property of others." Clark v. Dalman, 379 Mich. 251, 261, 150 N.W.2d 755 (1967). As Prosser & Keeton wrote:

"In other words, 'duty' is a question of whether the defendant is under any obligation for the benefit of the particular plaintiff; and in negligence cases, the duty is always the same--to conform to the legal standard of reasonable conduct in the light of the apparent risk." Prosser & Keeton, Torts (5th ed), § 53, p. 356.

In determining whether a duty exists, courts examine a wide variety of factors, including the relationship of the parties and the foreseeability and nature of the risk. Buczkowski v. McKay, 441 Mich. 96, 100, 490 N.W.2d 330 (1992). Most importantly, ⁴ for a duty to arise there must exist a sufficient relationship between the plaintiff and the defendant. As this Court stated in Samson v. Saginaw Professional Bldg. Inc., 393 Mich. 393, 406, 224 N.W.2d 843 (1975):

"[T]o require the actor to act, some sort of relationship must exist between the actor and the other party which the law or society views as sufficiently strong to require more than mere observation of the events which unfold on the part of the defendant. It is the fact of existence of this relationship which the law usually refers to as a duty on the part of the actor."

Clearly, the relationship between the utility company and the decedent was sufficient to impose a duty under the circumstances. It is well established that those who undertake particular activities or enter into special relationships assume a distinctive duty to procure knowledge and experience regarding that activity, person, or thing. ⁵ For example, a landlord must inspect a premises to keep it in a reasonably safe condition. Samson, supra; Lipsitz v. Schechter, 377 Mich. 685, 142 N.W.2d 1 (1966); 2 Restatement Torts, 2d, § 360, p. 250. Physicians must keep reasonably abreast of current advances in their field. Koch v. Gorrilla, 552 F.2d 1170 (C.A. 6 1977). Manufacturers must diligently inspect their products to discover lurking dangers. Livesley v. Continental Motors Corp., 331 Mich. 434, 49 N.W.2d 365 (1951); 2 Restatement Torts, 2d, Comments, § 395, pp. 326-332. Lastly, a carrier owes to its passengers the duty of discovering all detectable defects. Trent v. Pontiac Transportation Co., Inc., 281 Mich. 586, 275 N.W. 501 (1937).

Similarly, compelling reasons mandate that a company that maintains and employs energized power lines must exercise reasonable care to reduce potential hazards as far as practicable. First, electrical energy possesses inherently dangerous properties. Second, electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity. Lastly, although a reasonable person can be charged with the knowledge of certain fundamental facts and laws of nature that are part of the universal human experience, such as the dangerous properties of electricity, Koehler v. Detroit Edison Co., 383 Mich. 224, 231, 174 N.W.2d 827 (1970); Prosser & Keeton, supra, § 32, pp. 182-184; Harper, James & Gray, Torts (2d ed), § 16.5, pp. 405-408, it is well settled that electricity possesses inherently dangerous properties requiring expertise in dealing with its phenomena. Therefore, pursuant to its duty, a power company has an obligation to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects.

Another important variable in determining whether defendant owed a duty is foreseeability--"whether it is foreseeable that the actor's conduct may create a risk of harm to the victim...." Moning v. Alfono, 400 Mich. 425, 439, 254 N.W.2d 759 (1977). In Samson, supra, this Court further explained the foreseeability element:

"Foreseeability ... depends upon whether or not a reasonable man could anticipate that a given event might occur under certain conditions. But the mere fact that an event may be foreseeable does not impose a duty upon the defendant to take some kind of action accordingly. The event which he perceives might occur must pose some sort of risk of injury to another person or his property before the actor may be required to act." Id., 393 Mich. at 406, 224 N.W.2d 843.

To paraphrase Samson, a reasonable person could certainly anticipate that a painter could be electrocuted if his aluminum ladder came close to, or touched, a pitted, corroded and frayed electric wire. ⁶ Furthermore, a reasonable person could confidently conclude that this event would cause serious injury or death to the painter.

Those engaged in transmitting electricity are bound to anticipate ordinary use of the area surrounding the lines and to appropriately safeguard the attendant risks. The test to determine whether a duty was owed is not whether the company should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable activity done on the premises for business, work, or pleasure. ⁷ Here, Consumers Power should have realized that homeowners generally maintain their homes. This may include washing windows, cleaning troughs, repairing the roof, cleaning gutters, and, certainly, painting. Considering the proximity of the uninsulated primary wire to the house (roughly fifteen horizontal feet and twenty-four vertical feet from the ground), it was foreseeable that someone making repairs could be injured by a dilapidated wire. In fact, Consumers Power's alleged failure to conduct routine inspections of the wires, or conducting such inspections in a careless or deficient manner, made it reasonably foreseeable that the company's failure to discover or repair the damaged wires could result in injury or death to persons using an aluminum extension ladder in proximity to the wire. ⁸ Having found a sufficient relationship and a foreseeable risk of harm, it would be contrary to the rules and principles previously announced by this Court to hold that Consumers Power owed decedent no duty to properly inspect and maintain its wires so as to reasonably safeguard against injury or death. ⁹

Where service wires erected and maintained by an electric utility company carry a powerful electric current, so that persons coming into contact with or proximity to them are likely to suffer serious injury or death, the company must exercise reasonable care to protect the public from danger. The degree of care required is that used by prudent persons in...