Stacks v. Arkansas Power & Light Co., 89-77

• Decision Date: 12 June 1989
• Docket Number: No. 89-77,89-77
• Citation: 771 S.W.2d 754,299 Ark. 136
• Parties: Rick Allen STACKS, Appellant, v. ARKANSAS POWER & LIGHT COMPANY, Appellee.
• Court: Arkansas Supreme Court

Page 754

771 S.W.2d 754

299 Ark. 136

Rick Allen STACKS, Appellant, v. ARKANSAS POWER & LIGHT COMPANY, Appellee.

No. 89-77.

Supreme Court of Arkansas.

June 12, 1989.

Steve Kirk, Morrilton, for appellant.

Jim L. Julian, Janie W. McFarlin, Little Rock, for appellee.

PURTLE, Justice.

The appellant, Rick Allen Stacks, filed a tort action against the appellee, Arkansas Power and Light Company, for injuries received on July 5, 1983, when he came in contact with a sagging overhead power line while fishing on a pond in Plumerville, Arkansas. The appellee filed a motion for a summary judgment, and, after considering the affidavits and counter-affidavits, the trial court granted the motion. The sole argument for reversal is that there were genuine issues of fact to be determined. We agree and therefore reverse and remand.

The city of Plumerville formerly obtained its water supply through the use of water wells. The record reveals that there was a pump house on a well in the middle of a pond and another pump on the bank at another well. The city had not used the wells for several years prior to the appellant's injury. In the meantime, the public has been using the impoundment with the consent of the city for fishing and other forms of recreation.

AP & L furnished power delivered to a pole near the facility. The city of Plumerville owned and maintained the line from the delivery point to the pump houses. However, the city relied exclusively on the appellee to supply its electricity.

The former mayor of Plumerville stated in an affidavit that he had requested AP & L to de-energize this station two or three years before the occurrence. He further stated that AP & L told him they had disconnected the power to the pump house on the pond. Two witnesses on behalf of AP & L filed affidavits in which they denied that the appellee had any interest, control, or right to maintain the lines going from their terminal to the pump houses. Further, their affidavits stated that the mayor had not requested them to de-energize the lines. An affidavit from Clyde Garrett stated that he had been with the water department since July, 1959, and that he personally knew that the fuses serving the pump on the island had been removed three or four years prior to 1983.

In granting the motion for a summary judgment the trial judge held that there was a lack of causal connection between AP & L's delivery of electricity and the injuries suffered by the plaintiff; and that the city of Plumerville as owner of the sagging power line was responsible for the condition regardless of any statement made by any employee of the appellee. It is so fundamental as not to require citation of authority that summary judgment is not proper when a genuine issue of a material fact exists. We hold as a matter of law that a genuine issue of fact exists in this case. The complaint and affidavits alleged facts which, if believed by the jury, would support a verdict against the appellee.

An electric company has a duty to inspect and maintain its power lines in proper and safe working order. See Arkansas General Utilities Co. v. Shipman, 188 Ark. 580, 67 S.W.2d 178 (1934). The mayor's affidavit that a representative of the appellee told him the power to the pump house had been terminated created a factual situation on the issue of negligence and breach of duty to the appellant which required a determination by the trier of facts. The alleged statement by AP & L's representative was a sufficient allegation to present a genuine question as to whether the appellee had a duty to de-energize these lines. It will be up to the trier of facts to decide whether the occurrence was foreseeable and whether the negligence, if any, was a proximate cause of the appellant's injuries.

The threshold question is whether the appellee owed a duty of any kind to the appellee. Whether a duty is owed between the parties is a question of law. Keck v. American Employment Agency, Inc., 279 Ark. 294, 652 S.W.2d 2 (1983); Missouri Pacific Railroad Co. v. Harelson, 238 Ark. 452, 382 S.W.2d 900 (1964). The Keck opinion also stated that the question of foreseeability and causation may be a question of fact, depending on the circumstances. See also Larson Machine, Inc. v. Wallace, 268 Ark. 192, 600 S.W.2d 1 (1980). Proximate causation is ordinarily a question of fact. Id.

This court recognized the degree of care required of an electric company to its customers or those in close proximity to its wires in City Electric Street Railway Co. v. Conery, 61 Ark. 381, 33 S.W. 426 (1895). The electric company had strung wires overhead to operate trolley cars. One of the wires came in contact with a telephone wire which led to a private residence. The telephone wire broke and fell across the electric wire and was energized as it touched the ground. A small child stepped on the electric wire and was seriously injured. The opinion in the Conery case stated: "In cases where the wires carry a strong and dangerous current of electricity, and the result of negligence might be exposure to death, or most serious accidents, the highest degree of care is required." The opinion further stated: "[T]he injury was a result of the concurring negligence of the two parties, and would not have occurred in the absence of either. In that case negligence of the two was the proximate cause of the same, and both parties are liable."

In Arkansas General Utilities Co. v. Shipman, supra, this court quoted from Conery as follows: "This fact being established, the next question is, upon what duty of the appellant to the appellee can this action be based? The answer to it is, upon the duty enjoined by the rule which requires everyone to so use his property as not to injure another." In Shipman, supra, suit was filed against an electric company when a customer of the utility was injured when she tried to unplug a radio inside her residence after a surge of electricity had shorted it out and started a fire. The surge in electricity resulted when a service line fell onto a high-powered transmission line which broke and fell on the service line. The electric company insisted that evidence might establish that the wire was struck by lightning and that the electric company did not have time to repair it before the injury occurred.

The Shipman opinion held that if electric companies "negligently allow their wires to fall or sag, or poles or other apparatus to fall, to the injury of another, they are responsible in damage for the wrong done, if the party injured is guilty of no culpable negligence contributing to the injury." The question of whether the electric company was negligent when its high voltage line fell on a lower capacity line carrying electricity to a dwelling was held to be a matter of fact for the jury to decide.

The Shipman opinion included a discussion of the duty owed by an electric company:

The duty of an electric company in reference to keeping its appliances in safe condition is a continuing one. Not only must it exercise a high degree of care in the original selection and installation of its electric apparatus, but thereafter it must use commensurate care to keep the same in a proper state of repair. The obligation of repairing defects does not mean merely that the company is required to remedy such defective conditions as are brought to its actual knowledge. The company is required to use active diligence to discover defects in its system. In other words, an electric company is bound to exercise due care in the inspection of its poles, wires, transformers and other appliances.

The duties and responsibilities of electrical companies that have established or maintained electricity has been an issue before the courts from the earliest days. In Arkansas Power & Light Co. v. Cates, 180 Ark. 1003, 24 S.W.2d 846 (1930), the court quoted from the case of Duncan Electric & Ice Co. v. Chrisman, 157 P. 1031 (Okla.1916) and 1 Joyce on Electricity 735, where it was stated:

A company maintaining electrical wires, over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have a right to go, either for work, business, or pleasure, to prevent injury. It is the duty of the company, under such condition, to keep the wires...