Smith v. Home Light and Power Co.

• Decision Date: 30 March 1987
• Docket Number: No. 85SC39,85SC39
• Parties: , Prod.Liab.Rep. (CCH) P 11,341 Laura SMITH, Wanda Smith and Jeanette Smith, Petitioners, v. HOME LIGHT AND POWER COMPANY, a Colorado corporation, Respondent.
• Court: Colorado Supreme Court

Page 1051

734 P.2d 1051

55 USLW 2568, Prod.Liab.Rep. (CCH) P 11,341

Laura SMITH, Wanda Smith and Jeanette Smith, Petitioners, v. HOME LIGHT AND POWER COMPANY, a Colorado corporation, Respondent.

No. 85SC39.

Supreme Court of Colorado.

March 30, 1987.

Gerash, Robinson, Miller & Miranda, P.C., Scott H. Robinson, Denver, for petitioners.

Houtchens, Houtchens and Daniel, Kim R. Houtchens, Greeley, Kelly, Stansfield & O'Donnell, Timothy J. Flanagan, Denver, for respondent.

LOHR, Justice.

In Smith v. Home Light & Power Co., 695 P.2d 788 (Colo.App.1984), a divided panel of the Colorado Court of Appeals affirmed a partial summary judgment entered by the Weld County District Court in favor of defendant Home Light and Power Company (Home Light and Power) and against the plaintiffs, Laura, Wanda, and Jeanette Smith. The partial summary judgment related to the plaintiffs' claim that an overhead power line system designed and constructed by Home Light and Power was defective and unreasonably dangerous and that the utility was liable for the wrongful death by electrocution of plaintiffs' decedents under a theory of strict products liability as set forth in the Restatement (Second) of Torts § 402A (1965). The court of appeals, with one judge dissenting, affirmed the partial summary judgment. We granted the plaintiffs' petition for certiorari in order to determine whether the transmission of electricity through high voltage overhead power lines constitutes the sale of a product so as to subject the supplier of electricity to strict liability in tort under the Restatement (Second) of Torts § 402A (1965). We hold that it does not and we therefore affirm.

I.

The facts pertinent to the issue before us are not in dispute. ¹ Sidney Smith was the manager of a Weld County dairy farm owned by Delbert Henry. Smith and his son, Thomas, were killed on March 19, 1977, when they and a companion pulled a portable grain auger into a high voltage overhead power line designed, constructed and maintained by Home Light and Power and located within the farmyard. The uninsulated, 7200-volt power line had been installed in response to Henry's request that power be supplied to a dairy barn located on the farm. ² At a point near the barn, the line was connected to a transformer which reduced the voltage to the 120/240 volts suitable for use in the dairy barn.

The plaintiffs, the wife and daughters of Sidney Smith, sought damages for the wrongful death of Sidney and Thomas Smith. See § 13-21-202, 6 C.R.S. (1973). They asserted claims against Home Light and Power based on simple negligence, strict products liability (see Restatement (Second) of Torts § 402A (1965)), ³ and abnormally dangerous activity (see Restatement (Second) of Torts §§ 519, 520 (1965)). The plaintiffs also asserted a claim against the manufacturer of the grain auger based on strict products liability. Prior to trial, Home Light and Power moved for summary judgment on the strict products liability and abnormally dangerous activity claims against it. The trial court granted the motion for summary judgment. The case was tried to a jury on the negligence claim against Home Light and Power and the strict products liability claim against the manufacturer of the grain auger. Prior to closing arguments, the plaintiffs reached a settlement with the manufacturer of the grain auger. Therefore, the case was submitted to the jury on only the negligence claim against Home Light and Power. The jury returned a verdict in favor of Home Light and Power, finding that Sidney Smith was the sole negligent actor. The plaintiffs subsequently appealed the trial court's decision granting summary judgment for Home Light and Power on the strict products liability claim. ⁴

A panel of the court of appeals affirmed, with one judge dissenting. The court held that although electricity is a "product" within the meaning of the Restatement (Second) of Torts § 402A (1965) (hereinafter referred to as " § 402A"), an electrical distribution system, of which overhead power lines are a part, is a "service" rather than a "product" and that the plaintiffs therefore had not stated a claim for relief under § 402A. Smith v. Home Light & Power Co., 695 P.2d 788, 789-90 (Colo.App.1984). Judge Tursi dissented. He would have denied summary judgment because of his conclusions that the distribution system is also a "product" and that issues of material fact therefore remained to be resolved by a jury.

The plaintiffs filed a petition for certiorari with this court. We granted the petition on the issue of whether the transmission of electricity through overhead power lines constitutes the sale of a product so as to subject the supplier of electricity to strict liability in tort under § 402A. We hold that strict products liability is not applicable to the transmission of electricity through high voltage overhead power lines, and we therefore affirm the judgment of the court of appeals.

II.

A.

In Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975), we expressly adopted the doctrine of strict products liability as set forth in § 402A. Accord, e.g., Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 589 (Colo.1984); Anderson v. Heron Engineering Co., Inc., 198 Colo. 391, 394 n. 1, 604 P.2d 674, 676 n. 1 (1979). Section 402A provides:

§ 402A. Special Liability of Seller of Product for Physical Harm to User or Consumer

(1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if

(a) the seller is engaged in the business of selling such a product, and

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold.

(2) The rule stated in Subsection (1) applies although

(a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product from or entered into any contractual relation with the seller.

Principles of modern strict products liability law evolved in part to motivate manufacturers to use information that they can obtain through design, testing, data analysis and inspection to correct hazards in products and thereby combat the massive problem of accidents resulting from defective products. Palmer v. A.H. Robins Co., Inc., 684 P.2d 187, 218 (Colo.1984). Therefore, strict products liability under § 402A

does not rest upon negligence principles, but rather is premised on the concept of enterprise liability for casting a defective product into the stream of commerce.... Thus, the focus is upon the nature of the product, and the consumer's reasonable expectations with regard to that product, rather than on the conduct either of the manufacturer or of the person injured because of the product.

Jackson v. Harsco Corp., 673 P.2d 363, 365 (Colo.1983) (citations omitted). Accord Blueflame Gas, Inc., 679 P.2d at 589.

B.

This is our first occasion to consider the applicability of § 402A to the transmission and distribution of electricity. Courts in many other jurisdictions, however, have addressed this question, and we find guidance in the decisions of those courts. We begin our task by considering whether electricity itself can be the subject of products liability under § 402A. We then give attention to the question of whether the transmission and distribution facilities, considered either in isolation or taken in combination with the electricity that they carry, can provide the foundation for a strict products liability claim.

1.

Courts that have addressed the issue have almost uniformly rejected the argument that electricity by its intrinsic nature cannot be a "product" within the meaning of § 402A. E.g., Pierce v. Pacific Gas & Electric Co., 166 Cal.App.3d 68, 212 Cal.Rptr. 283, 289-91 (1985); Hedges v. Public Service Co., 396 N.E.2d 933, 935 (Ind.Ct.App.1979); Petroski v. Northern Indiana Public Service Co., 171 Ind.App. 14, 354 N.E.2d 736, 747 (1976); Williams v. Detroit Edison Co., 63 Mich.App. 559, 234 N.W.2d 702, 705 (1975); Aversa v. Public Service Electric & Gas Co., 186 N.J.Super. 130, 451 A.2d 976, 979-80 (Law Div.1982); Houston Lighting & Power Co. v. Reynolds, 712 S.W.2d 761, 766 (Tex.Ct.App.1986); Ransome v. Wisconsin Electric Power Co., 87 Wis.2d 605, 275 N.W.2d 641, 643 (1979). See also Genaust v. Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465, 469 (1976) (court assumed for purposes of argument that electricity is a "product" within the meaning of § 402A); Schriner v. Pennsylvania Power & Light Co., 348 Pa.Super. 177, 501 A.2d 1128, 1133-34 (1985) (electricity becomes a product when it passes through customer's meter). But see Farina v. Niagara Mohawk Power Corp., 81 A.D.2d 700, 438 N.Y.S.2d 645, 646-47 (1981) (suggesting, but not deciding, that electricity is not a "product" within the meaning of § 402A).

Home Light and Power argues that since electricity is not tangible, it is not a "product." "The courts, however, have not dwelled unduly on electricity's physical properties." Pierce, 212 Cal.Rptr. at 290. The Supreme Court of Wisconsin, in Ransome v. Wisconsin Electric Power Co., 87 Wis.2d 605, 275 N.W.2d 641 (1979), explained why electricity is a "product" within the meaning of § 402A:

While there probably are numerous technical definitions of "electricity," we need not be concerned with those accurate descriptions here--suffice it to say it is a form of energy that can be made or produced by men, confined, controlled, transmitted and distributed to be used as an energy source for heat, power and light and is distributed in the stream of commerce. The distribution might well be a service but the electricity itself, in the contemplation of the ordinary user, is a consumable product.

Id., 275 N.W.2d at 643. Accord Pierce, 212 Cal.Rptr. at 290-91. We agree with this reasoning.

Even...