Voelker v. Delmarva Power and Light Co.

• Decision Date: 06 November 1989
• Docket Number: Civ. A. No. HAR 88-2531.
• Citation: 727 F. Supp. 991
• Parties: Michael V. VOELKER, et al., Plaintiffs, v. DELMARVA POWER AND LIGHT COMPANY, et al., Defendants. DELMARVA POWER AND LIGHT COMPANY, et al., Defendants and Third-Party Plaintiffs, v. John HOZIK, et al., Third-Party Defendants.
• Court: U.S. District Court — District of Maryland

727 F. Supp. 991

Michael V. VOELKER, et al., Plaintiffs, v. DELMARVA POWER AND LIGHT COMPANY, et al., Defendants.

DELMARVA POWER AND LIGHT COMPANY, et al., Defendants and Third-Party Plaintiffs, v. John HOZIK, et al., Third-Party Defendants.

Civ. A. No. HAR 88-2531.

United States District Court, D. Maryland.

November 6, 1989.

COPYRIGHT MATERIAL OMITTED

MEMORANDUM OPINION

HARGROVE, District Judge.

Currently pending before this Court is Defendant Delmarva Power and Light Company's ("Delmarva") Motion to Dismiss Count II of Plaintiffs Michael V. Voelker and Merridee A. Voelker ("Voelkers") complaint, Defendant Asplundh Tree Expert Company's ("Asplundh") Motion for Summary Judgment filed July 28, 1989, and third-party Defendants John Hozik and Joan Hozik ("Hoziks") Motion for Summary Judgment filed July 17, 1989. The issues have been fully briefed. A hearing on the motions was held in this Court on October 5, 1989.

FACTS

On January 1, 1988, ten-year old Andrew D. Voelker, decedent, was electrocuted when he touched an electrical wire while tree climbing with his brother, Joshua Voelker, and their friend, John Hozik, Jr., both age nine, at the home of the Hoziks. Prior to the accident, decedent shouted down from the tree that he saw the electrical wire above him. Decedent was pronounced dead on arrival at Johns Hopkins University Hospital. It is disputed whether the Hoziks knew that the children were tree climbing at the time of the accident. However, there is no evidence to suggest that they saw or even knew that the children were climbing the particular tree in which this tragic accident occurred.

The Voelkers, decedent's parents, brought suit on August 24, 1988, against both Delmarva and Asplundh for negligence. Asplundh was under contract with Delmarva to trim trees along the power lines in the Hoziks' area, including the tree in which decedent was climbing when this accident occurred. Plaintiffs also seek judgment against Delmarva for strict liability due to the claimed ultrahazardous nature of the transmission of electricity.

Both defendants have additionally filed a third-party complaint upon the Hoziks, claiming that the Hoziks were negligent in their supervision of the children and thus responsible for the accident. Delmarva and Asplundh further claim that they were unable to trim the tree in which the decedent was electrocuted due to the objections of the Hoziks.

Jurisdiction is claimed under diversity, 28 U.S.C. Sec. 1332. Accordingly, the Court will apply Maryland substantive law.

I.

Defendant Delmarva has moved to dismiss Count II of the complaint for failure to state a claim for which relief may be granted. A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) should not be granted "unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). Thus, the Court must accept as true all allegations of the complaint and examine them in the light most favorable to the plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974).

In Count II, plaintiffs seek recovery under a strict liability theory claiming that the transmission of electricity through residential areas through trees is "dangerous and ultrahazardous." An activity is defined as "ultrahazardous" when it is considered "abnormally dangerous." Restatement of Torts, Second, Section 519. Under Maryland law, an "abnormally dangerous activity" for which strict liability is imposed must satisfy the following factors:

(a) existence of a high degree of risk of some harm to the person, land or chattels of others;

(b) likelihood that the harm that results from it will be great;

(c) inability to eliminate the risk by the exercise of reasonable care;

(d) extent to which the activity is not a matter of common usage;

(e) inappropriateness of the action;

(f) extent to which its value to the community is outweighed by its dangerous attributes.

Kelley v. R.G. Industries, Inc., 304 Md. 124, 132-33, 497 A.2d 1143 (1985); Yommer v. McKenzie, 255 Md. 220, 224, 257 A.2d 138 (1969); Restatement of Torts, Second, Section 520.

While Maryland courts have not yet had the opportunity to apply these factors to the transmission of electricity via high voltage power lines, the issue has been addressed in several other jurisdictions. Without exception, each court considering the issue has rejected any finding of strict or absolute liability for the activity of transmitting electricity. This Court agrees with their analysis.

First, it need not be stated that the transmission of electricity is an daily occurrence in every community in the United States. As such, it is a matter of common usage. This will weigh heavily against any finding of an "abnormally dangerous activity." See New Meadows Holding Co. v. Washington Water Co., 34 Wash.App. 25, 659 P.2d 1113 (1983); Kent v. Gulf States Utilities Co., 418 So.2d 493, 498-99 (La. 1982).

Furthermore, to hold utilities to absolute liability by declaring their conduct to be ultrahazardous would be the equivalent of declaring them insurers for all members of the community in which they serve. This Court, along with others which have considered the issue, will not impose that responsibility upon a utility company. See Nelson by Tatum v. Commonwealth Edison Co., 124 Ill.App.3d 655, 80 Ill.Dec. 401, 410-11, 465 N.E.2d 513, 522-23 (1984); Kent, at 498-99; Clinton v. Commonwealth Edison Co., 36 Ill.App.3d 1064, 344 N.E.2d 509 (1976); Kentucky Utilities v. Auto Crane Co., 674 S.W.2d 15, 18 (Ky. App.1983).

Additionally, the rules of strict liability for abnormally dangerous activities rarely apply to acts carried out in pursuance to a public duty. Restatement of Torts, Second, Section 521. The transmission of electricity by a public utility is a public duty. Therefore, strict liability is inappropriate. Kentucky Utilities, at 18. It is also worth noting that in most ultrahazardous activity cases there is no ability to protect oneself. The victim has no connection to the events which lead to his accident.¹ Here, the decedent came to the hazard. It was not imposed upon him. The facts of this case do not fall within those of the traditional ultrahazardous activity case.

Finally, this Court finds that it is possible to eliminate the risks accompanying the transmission of electricity through the exercise of reasonable care. As stated, electricity is transmitted across power lines constantly. However, the number of injuries which result from this activity are very small. Injuries caused by contact with electrical wires are usually the result of negligence on the part of either the power company, the victim, or a third-party. Injuries do not generally occur because of the nature of the activity itself. See Kent, at 498-99. As such, claims arising out of this unfortunate accident are better suited for resolution through traditional negligence claims.

Plaintiffs try to distinguish this case from those of other jurisdictions by stating that the hazardous activity undertaken by Delmarva was not the transmission of electricity, but instead was the transmission of electricity via overhead power lines which were concealed by tree branches. See Plaintiff's Complaint at 6. However, this is not the actual activity in which Delmarva participated. Delmarva did not place the power lines in a concealed location. The tree in question allegedly grew over the power line at a later date. Whether Delmarva allowed this to happen and whether allowing this to happen was proper, is better addressed in a negligence claim, not in a claim for strict liability. Accordingly, the Court grants Delmarva's Motion to Dismiss Count II of the complaint.²

II.

Next this Court considers Asplundh's Motion for Summary Judgment on the complaint. Summary judgment will be granted when "there is no genuine issue as to any material fact, and if the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The mere existence of a "scintilla of evidence" is not enough to frustrate a motion for summary judgment. The pleadings must show evidence from which the finder of fact could reasonably find for the party opposing judgment. Id., 477 U.S. at 252, 106 S.Ct. at 2512; Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). Asplundh states that it cannot be held liable for the decedent's accident as a matter of law, claiming that under Maryland law it owed no duty to decedent under its contract with Delmarva. It further claims that even if it did owe a duty to the decedent, it did not breach its contract with Delmarva and therefore cannot be held negligent for actions in connection with the contract. Asplundh thus claims that summary judgment is proper in this case.

In September, 1981, Asplundh won a contract to serve as tree-trimmers for Delmarva. This same contract was in effect through the time of decedent's accident. Among the areas which Asplundh maintained trees for Delmarva was the area in which the Hoziks lived, Kent Island. Asplundh trimmed areas in approximately two-year cycles. The last time previous to the accident that Asplundh trimmed in the Kent Island area was in early 1986. There is a factual dispute whether Asplundh sought the Hoziks' permission in 1986 to trim the tree in the yard from which decedent fell. However, it is undisputed that Delmarva's supervising foreman at the scene, Victor Williamson, made a determination that the tree in question did not need to be trimmed during that cycle.³ A new trimming cycle began in the Kent Island area soon after the accident.

Plaintiffs claim that Asplundh owed a duty to decedent to keep the tree trimmed for his and the public's safety. Any such duty must necessarily arise out of the...