Wirth v. Mayrath Industries, Inc.

• Decision Date: 09 May 1979
• Docket Number: No. 9580,9580
• Citation: 278 N.W.2d 789
• Parties: Linda WIRTH, Individually and as a Personal Representative of the Estate of Larry Wirth, Deceased, Plaintiff and Appellant, v. MAYRATH INDUSTRIES, INC., Defendant, and Cavalier Rural Electric Cooperative, Inc., Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 789

278 N.W.2d 789

Linda WIRTH, Individually and as a Personal Representative of the Estate of Larry Wirth, Deceased, Plaintiff and Appellant, v. MAYRATH INDUSTRIES, INC., Defendant and Cavalier Rural Electric Cooperative, Inc., Defendant and Appellee.

Civ. No. 9580.

Supreme Court of North Dakota.

May 9, 1979.

O'Grady & Morley, Grand Forks, and Cameron D. Sillers, Langdon, for plaintiff and appellant; appearance by Cameron D. Sillers, Langdon; argued by Lowell A. O'Grady, Grand Forks.

Vaaler, Gillig, Warcup, Woutat & Zimney, Grand Forks, for defendant Mayrath Industries; no appearance.

Dahl & Greenagel, Grafton, for defendant and appellee Cavalier Rural Electric Cooperative, Inc.; argued by Robert E. Dahl, Grafton.

ERICKSTAD, Chief Justice.

The plaintiff, Linda Wirth, individually and as the personal representative of the estate of Larry Wirth, deceased, appeals to our court from the order of the district court, dated October 20, 1978, which struck Count V alleging strict liability from the complaint. ¹ We affirm.

Linda's statement of the case follows:

"1. Appellant Linda Wirth (Wirth), for herself and two minor children, commenced a wrongful death action for the death of her husband, Larry Wirth, age 25, who was electrocuted on August 23, 1977. The action was brought against Defendants Cavalier Rural Electric Cooperative, Inc., (R.E.C.), and Mayrath Industries, Inc., (Mayrath), wherein Linda Wirth alleged negligence and strict liability in tort under §§ 402A and 519 of the Restatement of Torts 2d, against R.E.C., and breach of implied warranty, negligence in design and maintenance of the lines, and strict liability in tort under § 402A of the Restatement of Torts 2d, against Mayrath. She served extensive Interrogatories on each Defendant at the same time the Complaint was served.

"2. The electrocution occurred on the Norman and Nora Wirth (elder Wirths') farmstead. The farmstead is located southwest of Munich, North Dakota on a rectangularly shaped tract of several acres of land with its greatest length to the north and south. The farm buildings were served electrical power by R.E.C.'s high tension lines coming from the east but terminating at the elder Wirths' farm buildings. R.E.C. owned and maintained a separate high tension line located farther north that crossed the north one-third of the farmstead by easement from a former owner of the land, and several hundred feet to the north of the other line. The second line (north line) provided electrical service to the farm neighbors of the elder Wirths to the west, but not to the elder Wirths' farmstead.

"3. Over the years the elder Wirths had built a row of four steel grain bins from south to north and on the south two-thirds of the farmstead. The last of the four bins (fourth bin) had been built in 1969 and its closest point was less than sixteen feet (16') to the south of R.E.C.'s north line. In line with the four bins farther to the west and separated by about fifty feet (50') were two steel drier bins.

"4. During the spring of 1977 the elder Wirths increased the grain storage in the four bins by adding a steel ring to each of the four bins. This increased each bins's height several feet.

"5. In the forenoon of August 23, 1977, Larry Wirth and his father, Norman Wirth, were manually moving a forty-one foot (41') Mayrath grain auger in an elevated position from the fourth bin to the drier bin to the west of the fourth bin. To position the auger they were crossing R.E.C.'s north lines when the top portion of the auger contacted the phase wire of the two wire line configuration and Larry Wirth was instantly electrocuted and Norman Wirth suffered severe electrical burns requiring immediate hospitalization.

"6. R.E.C. did not answer the Complaint and moved by motion under 12(b)(5) to dismiss Wirth's allegation of strict liability based upon § 402A of the Restatement of Torts 2d. Mayrath interposed answer denying all liability and served extensive Interrogatories upon Wirth. Before resisting Mayrath's (R.E.C.'s) motion and while resisting a motion for a change of venue by R.E.C., Wirth's attorney verbally notified R.E.C. and the trial Court she intended to amend her Complaint and allege that at the time of electrocution R.E.C. was conducting an abnormally dangerous business activity in the maintenance of its north line across the elder Wirths' farmstead. The Court indicated it was not necessary to amend the Complaint but Wirth could submit all the facts she had outside the pleadings and what law she could muster in briefs, including all Answers to Interrogatories, and the Court would rule on R.E.C.'s motion and also rule on whether Wirth could amend and include a 519 allegation against R.E.C "7. The case comes before this Court for review of the trial Court's partial summary judgment in favor of R.E.C. striking Wirth's allegation of strict liability under § 402A from her Complaint and refusing her leave to amend and include an allegation against R.E.C. under § 519 of Restatement of Torts 2d."

Part 7 of Linda's statement of the case is clarified by the trial court's memo:

"The Motion:

"By defendant Cavalier R.E.C. to strike Count V of plaintiff's complaint which charges this defendant with strict liability for ownership and maintenance of electrically charged power lines.

"Court's Ruling:

"Strict liability does not apply to actions for injuries and damages from contact with high tension power lines owned and operated by utilities such as the defendant R.E.C. in this case. This conclusion obtains whether the asserted cause of action is based upon either Section 402(A) or Section 519 of the Restatement of Torts, 2d. Williams v. Detroit Edison Co., 234 N.W.2d 702 (63 Mich.App. 559, 1975); Brigham v. Moon Lake Electric Ass'n, 470 P.2d 393 (24 Utah 2d 292, 1970); Kemp v. Wisconsin Electric Power Co., 172 N.W.2d 161 (44 Wis.2d 571, 1970). See, Ferguson v. Northern States Power Co., 239 N.W.2d 190 (307 Minn. 26, 1976).

"Motion granted, with motion costs awarded to movant."

Linda relies on Sections 402A, 519, and 520 of the Restatement of Torts 2d ² for her argument that the concept of strict liability applies to R.E.C. in this action.

In discussing the cases relied upon by the trial court, counsel for Linda asserts that only Kemp and Williams discuss the liability of the defendant under Section 402(a). He states that both cases concluded that since the electricity in question had not passed through a customer's meter, there could be no recovery under Section 402(a), and he asserts that the cases overlook that before there can be a sale to the customer, the utility must provide the means or service to the customer's meter. He contends that the situation is analogous to hospital blood cases and refers us to the case of Johnson v. Sears, Roebuck & Co., 355 F.Supp. 1065, 1066-67 (E.D.Wis.1973):

"Courts in New Jersey, Pennsylvania, and Michigan have also found the sales/service dichotomy untenable. In Newmark v. Gimbel's Incorporated, 54 N.J. 585, 258 A.2d 697 (1969), the New Jersey Supreme Court held a beauty operator strictly liable for injuries caused by a permanent wave application stating 'the distinction between a sale and the rendition of services is a highly artificial one.' 258 A.2d at 700. In Hoffman v. Misericordia Hospital of Philadelphia, 439 Pa. 501, 267 A.2d 867 (1970), the complaint charged that the plaintiff's deceased had contracted serum hepatitis and died after receiving a transfusion while a patient at Misericordia. The trial court granted defendant's demurrer because the transaction was not a 'sale.' The Supreme Court of Pennsylvania reversed because it did 'not feel obligated to hinge any resolution of the very important issue here raised on the technical existence of a sale.' 267 A.2d at 870. The court stated further that the demurrer was improperly sustained 'without sufficient inquiry as to whether the policies for which warranties are implied in law would be furthered by their implication in this situation.' 267 A.2d at 871. Finally, the Michigan Court of Appeals held in Buckeye Union Fire Insurance Co. v. Detroit Edison Co., 38 Mich.App. 325, 196 N.W.2d 316, 317 (1972), that 'implied warranties * * * should apply to the sale of services as well as to the sale of goods.' " 355 F.Supp. at 1066.

Counsel further quotes from Johnson in support of his contention that strict liability should apply in this case for the same reasons that the court urged it should apply in hospital service cases.

"I do not, however, feel that the mechanical and administrative services provided by hospitals should necessarily be exempt from strict liability. Several considerations lead me to this conclusion. They are: first, the serious consequences which can result when a patient receives defective hospital services; second, the near total inability of laymen to recognize or control such defective service;" 355 F.Supp. at 1067.

Johnson is distinguishable from the present case inasmuch as there has been no showing of a defective service in the instant case.

Counsel for Linda asserts that the standard charge for burying line underground is $200, that this is the charge that was made subsequent to the incident which resulted in Larry Wirth's death in this case and inferentially, that because of this small cost the line should have been initially buried by the cooperative, and that as the line was not buried and the death occurred, the rural electric cooperative should bear the economic cost of the death because it can spread the loss among its 1800 members. Counsel asserts that this is a rational approach which should be applied in cases such as this.

What counsel is asking us to do is to legislate. He refers us to a recent decision of the Minnesota Supreme Court entitled Ferguson v. Northern States Power Co., 307 Minn. 26, 239 N.W.2d 190 (1976), asserting that the court came within an eyelash of holding the power company strictly liable.

The...