Wilhelm v. Detroit Edison Co.

• Decision Date: 09 October 1974
• Docket Number: No. 1,Docket Nos. 18565--18566,1
• Citation: 56 Mich.App. 116,224 N.W.2d 289
• Parties: Mildred Elaine WILHELM, Administratrix of the Estate of Gerald Taylor Wilhelm, Plaintiff-Appellee, v. The DETROIT EDISON COMPANY, Defendant-Appellant. PONTIAC MALL SHOPPING CENTER et al., Defendants, Third-Party Plaintiffs and Appellants, v. HARLAN ELECTRIC COMPANY et al., Third-Party Defendants and Appellees
• Court: Court of Appeal of Michigan — District of US

Page 289

224 N.W.2d 289

56 Mich.App. 116

Mildred Elaine WILHELM, Administratrix of the Estate of Gerald Taylor Wilhelm, Plaintiff-Appellee, v. The DETROIT EDISON COMPANY, Defendant-Appellant.

PONTIAC MALL SHOPPING CENTER et al., Defendants, Third-Party Plaintiffs and Appellants, v. HARLAN ELECTRIC COMPANY et al., Third-Party Defendants and Appellees.

Docket Nos. 18565--18566.

Court of Appeals of Michigan, Division No. 1.

Oct. 9, 1974.

Released for Publication Dec. 13, 1974.

Rehearing Denied Jan. 3, 1975.

Leave to Appeal Denied Jan. 15, 1975.

Francis E. Bentley, Fischer, Franklin & Ford, Detroit, for Detroit Edison; James A. Markle, Detroit, of counsel.

D. J. Watters, Plunkett, Cooney, Rutt and Peacock, Detroit, for shopping center.

George J. Bedrosian, Detroit, for Wilhelm, admx.

Albert A. Miller, Detroit, for Harlan Elect.

Lawrence A. Bohall, Detroit, for Couse.

Abba I. Friedman, Southfield, for Ornamental Iron.

Lawrence S. Katkowsky, Detroit, for S. S. Kresge.

Before J. H. GILLIS, P.J., and ALLEN and ELLIOTT,* JJ.

ALLEN, Judge.

Defendants Detroit Edison Company (Edison) and the Pontiac Mall Shopping Center (Mall) appeal from a jury verdict of $325,000 granted in favor of plaintiff for the wrongful death of her husband, Gerald, who was electrocuted on August 11, 1965, while painting some metal trim near some high-tension electric lines. The Mall has also appealed from the trial court's order granting summary judgment in favor of the third-party defendants, against whom the Mall had sought contribution and/or indemnity. The trial court denied both defendants' motions for judgment notwithstanding the verdict and for a new trial, and also denied the Mall's motion for a new trial on its cause of action against the third-party defendants.

Plaintiff's decedent, Gerald Wilhelm, was a painter employed by the I. H. Hill Painting Company, had been so employed for approximately 12 years before his death, and was the foreman of the crew engaged in the painting project at the Pontiac Mall. He had two sons, Gerald, Jr., who was 7 years old at the time of his father's death, and Michael, then aged 5 and an orthopedically handicapped child requiring repeated hospital visits, placement in a school for the orthopedically handicapped, and constant attention from his mother. Mildred Wilhelm, plaintiff herein, married Gerald September 5, 1956, and was 34 years old when her husband died. It was plaintiff's theory that the Mall had failed to use a high degree of care regarding the installation of the electrical service near the point at which her husband met his death. Plaintiff claimed that the Mall had a duty to provide Wilhelm with a safe place to work, knew that the metal trim around the edge of the building known as 'flashing' or 'coping' needed painting, and failed to properly insulate wires, failed to provide a proper wire screen around the wires, and failed to adequately warn of the danger. Plaintiff claimed that Detroit Edison was involved in the planning, inspection and the approval of the electrical installation, and that it had failed to use a high degree of care in the course of engaging in these duties.

The Pontiac Mall was the first enclosed shopping center built in Michigan. Charles N. Agree, Inc., an architectural firm, was hired by Pontiac Mall to design the complex, and David Zabner, a mechanical engineer also trained in electrical engineering, was hired as a consultant on the project by the Agree firm. Detroit Edison provided Zabner with what was known as an 'XPC drawing', a conceptual design prepared by Detroit Edison for the project planners. These plans showed how the electrical service was to be provided to the Mall. Edison was to provide the service to the Mall, and the Mall would then own the electricity and sell it, pursuant to approval from the Michigan Public Service Commission, to its tenants. The XPC drawings showed that a protective fence was to be built on top of a wall above the point at which the electrical lines met the buildings, and a sign was to be attached to the fence, indicating the presence of danger, namely, 4800 volts. This sign was to be placed on a fence so that a person standing on the roof could read it.

The plans also called for this fence to be constructed 4 inches away from the brick facing of the building. In 1961, the Mall contracted with the Walter Couse Company to build the protective fence above the electrical installation. Couse in turn contracted with the Ornamental Iron Company which built the fence only 1/2 inch away from the wall. The Mall paid for the fence. In 1964, when it was deemed necessary to provide additional electrical service to the Mall, the Mall contracted with Harlan Electric Company to build a protective fence above the second electrical installation. Although the plans called for a similar 4-inch distance between the fence and the wall, the blue-prints contained the notation 'fence to match existing' fence. Harlan then built the fence 1/2 inch away from the wall, and it was near this point that plaintiff's decedent met his death. The parties involved in building the fences were joined by the Mall as third-party defendants, and successfully obtained summary judgment in their favor previous to trial. GCR 1963, 117.2(3).

The metal 'flashing' or 'coping' supposedly required painting every 2 to 5 years, depending on the weather. The Hill Painting Company made a contract with the Mall to do that painting, and Mr. Mudloff, in charge of maintenance for the Mall, took Mr. Hill on a tour around the Mall to show him which areas to paint and not to paint. Witnesses testifying for Detroit Edison could not recall if a representative of the Mall ever requested the power to be shut off while this painting was being done near the electrical lines, although testimony was presented that this was the safest way in which to paint near the lines.

Melvin H. Sachs, an architect, testified that the electrical installation, with the fence built only 1/2 inch from the wall, presented an unsafe condition and that a man could not paint it while standing on the roof, but instead had to use a ladder to reach that area. If there was a 4-inch space between the wall and the fence, the painter could have stood on the roof and reached down to paint the metal trim. As an alternative, the electric lines could have been installed underground rather than overhead, but Charles Agree testified that the owners of the Mall, with cost as their prime consideration, decided that the lines should be overhead. However, Zabner testified that the XPC drawing prepared by Edison showed that the lines were to be overhead, and he said that he did no 'layout work' regarding this project before he went to Detroit Edison and received those plans.

As indicated above, the Edison Company supplied the electrical power to the Mall. It provided the Mall's architect and planners with the 'XPC drawings', and the specifications for the project indicated that the entire electrical system was to meet Detroit Edison approval. Although the drawings provided that the fence was to be built on top of the parapet wall, a wall that extends above the roof, no such wall was built. Employees of Edison, although unable to recall any discussions regarding the need for painting the metal trim, had the authority to resist turning on the power if the owner had not constructed the electrical installation, including the fence, pursuant to Edison plans. The wires met the building at the west wall above the SS Kresge store, 23 feet and 5 inches above ground, well in excess of the 20 feet electrical code requirement. However, no warning sign was placed on the wall, nor was the fence built in such a way that a person involved in maintenance work near the lines, such as a painter, would be aware of the danger of the uninsulated lines or would be protected from the same. However, the director of Edison's engineering division testified that the electrical installation met good industry construction practice, and that it met the Michigan Public Service Commission requirements contained in 1966 AACS, R 460.540 and R 460.541. He testified that the safest way to remove any danger was by de-energizing (shutting off the power) and that Detroit Edison would have done so upon request from the Mall.

Both defendants asserted that Gerald Wilhelm was contributorily negligent. Testimony was presented that it was unsafe to use a ladder near the electrical installation. However, Mr. Hill, Wilhelm's employer, testified that he did not regard the wires as dangerous because they were so thick he assumed that they were insulated. Although it was easier to paint from the roof, Wilhelm had to use a ladder at this point because of the fence. Other painters testified that they generally avoid touching wires, and testimony was received that either Wilhelm or the other foreman on the job had cautioned the painters about the 'wire cage' on the roof. However, at the time of the accident, August 1965, no wire cage was present on the roof, and one was not constructed until sometime in 1966. Another painter on the crew testified that no one from the Mall ever told the painters to avoid the area near the electrical installation, that the painters were not advised that the wires were high tension wires, although on previous painting projects the power was usually shut off if painting near wires was necessary.

The record was substantial, and other facts relevant to the many problems in this case will be presented in conjunction with discussion of the issues. ¹ The issues can be broken down into 6 general areas, of which all but the last relate to the integrity of the jury verdict against defendants Edison and the Mall. The sixth issue concerns the Pontiac Mall's potential right of contribution from the third-party defendants.

I. Did either Edison or the Mall owe a duty to plaintiff's decedent? If so, does the record contain sufficient evidence...