Electrocution And Electric Shock Litigation
July 3, 2010
Electrocution cases present a number of challenges and often involve several liability and medical experts.
Duty to Exercise the Highest Degree of Care
Under Missouri law, an electric utility has a duty to “exercise the highest degree of care to maintain its wires in such condition as to prevent injury.” Fenlon v. Union Electric Co., 266 S.W.3d 852, 855 (Mo.App. E.D. 2008); Erbes v. Union Electric Co., 353 S.W.2d 659, 664 (Mo. 1962)(“It is well-settled that suppliers of electricity must exercise the highest degree of care to maintain their wires in such condition as to prevent injury”).
Missouri Courts have found that electric utilities have a duty to exercise the highest degree of care to maintain its wires to prevent injuries in, at least, the following circumstances:
Jody Merrick was electrocuted when he attempted to cut a piece of wire from an overhead power line. Mr. Merrick initially climbed 10 to 12 feet up the power line pole and then used a nearby tree to get a little higher. While Mr. Merrick was attempting to cut a piece of wire, he made contact with the power line and was electrocuted. The electric company argued that it was unforeseeable to them that Jody would use his own pole climbers to put himself in a position to come into contact with a power line. The Appellate Court disagreed and concluded that where the question of foreseeability has been raised, the courts have usually held the question to be one for the jury. Ultimately, the Court held that a jury question existed as to whether defendants, in the exercise of the highest degree of care, could have reasonably anticipated some injury was likely to occur to Mr. Merrick. Merrick v. Southwest Elec. Coop, 815 S.W.2d 118 (Mo.App. S.D. 1991)(Emphasis Added).
Walter Gladden was injured when he climbed 25 feet up a tree on a public highway to catch a tame parakeet that got out of its cage. The tree was located next to a power line and Mr. Gladden saw the power lines wire running through the branches of the tree. As Mr. Gladden was reaching for the parakeet, he touched the power line and was shocked. Defendant argued that it did not violate any duty of care owed to Mr. Gladden and that its construction and maintenance of its wires did not proximately cause his injuries. It further argued that even in the exercise of the highest degree of care, it could not have anticipated the presence of adults in the tree where the branches came into contact with the wires. The Supreme Court of Missouri disagreed and concluded that a jury question existed as to whether the electric company should have anticipated that an adult would climb the tree located near its power lines. Gladden v. Missouri Public Service Company, 277 S.W.2d 510 (Mo. 1955) (Emphasis Added).
After calling his electric company at least 4 times about an outage at his home, Danny Ray Mobley made his way to the electric company’s warehouse where he was able to obtain a replacement fuse for the transformer feeding energy to his home. Mr. Mobley placed his ladder on top of the cab of his truck and climbed it to replace the blown transformer fuse located on a utility pole 18 feet in the air and was electrically shocked. Under the circumstances, the Appellate Court found that Mr. Mobley made a submissible case of negligence against the electric company since the electric company failed to fix the problem and provided Mr. Mobley with the replacement fuse. Mobley v. Webster Electric Coop., 859 S.W.2d 923 (Mo.App. S.D. 1993)(Emphasis added).
Foreseeability is an Issue for the Jury
Utility companies often argue that it was not foreseeable that someone would get close enough to its power line to be shocked. However, Missouri cases make it clear that it is foreseeable to power companies that members of the general public often get close to their power lines for a variety of reasons (i.e. to fix a blown fuse; to cut a piece of wire; and to save a bird). See Merrick v. Southwest Elec. Coop, 815 S.W.2d 118 (Mo.App. S.D. 1991); Gladden v. Missouri Public Service Company, 277 S.W.2d 510 (Mo. 1955); Mobley v. Webster Electric Coop., 859 S.W.2d 923 (Mo.App. S.D. 1993).
Foreseeability is generally an issue of fact for the jury. Mrad v. Missouri Edison Co., 649 S.W.2d 936, 941 (Mo.App. 1983); Mobley v. Webster Electric Coop., 859 .S.W.2d 923, 927 (Mo.App.S.D. 1993); Merrick v. Southwest Elec. Coop., 815 S.W.2d 118, 122 (Mo.App. S.D. 1991); Gladden v. Missouri Public Service, Co., 277 S.W.2d 510, 515 (Mo. 1955). Foreseeability is not a matter of mathematical certainty and no event is entirely foreseeable. Richey v. Phillip, 259 S.W.3d 1, 9 (Mo.App. W.D. 2008)(citing Shannon v. Wal-Mart Stores, Inc., 974 S.W.2d 588, 591 (Mo.App. 1998). The defendant’s negligence does not have to be the sole cause of the injury. Instead, it must be one of the causes without which the Plaintiff would not have been injured. Foreseeability, therefore, refers to “whether a defendant could have anticipated a particular chain of events that resulted in injury or the scope of the risk that the defendant should have foreseen.” Richey v. Phillip at 9 (quoting Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151, 155 (Mo. banc 2000).
Overhead Power Line Safety Act
Electrical utilities often argue that the Plaintiff is barred from making any recovery because he or she violated the Overhead Power Line Safety Act (“OPLSA”). The OPLSA essentially requires that anyone who is planning on working within 10 feet of an overhead high voltage power line shall notify the power company so that the line can be de-energized. Under the OPLSA, when a person violates the act there is a rebuttable presumption that such person was negligent. While utility companies routinely argue that the OPLSA is a complete bar to recovery, this is not a persuasive argument in light of the fact that contributory negligence was abolished in Missouri years ago.
The pertinent portions of the OPLSA read as follows:
Citation of law.
319.075. Sections 319.075 to 319.090 may be cited and shall be known as the “Overhead Power Line Safety Act”.
(L. 1991 S.B. 214 & 264 § 1)
(2005) Act does not affect or create an exception to an employer’s immunity under the Worker’s Compensation Act. Crow v. Kansas City Power and Light Co., 174 S.W.3d 523 (Mo.App.W.D.).
319.078. As used in sections 319.075 to 319.090, the following terms mean:
(1) “Authorized person”:
(a) An employee of a public utility or an employee of a contractor which has been authorized by a public utility to perform construction, operation or maintenance on or near the poles or structures of such utility;
(b) An employee of a cable television or communication services company or an employee of a contractor authorized to make cable television or communication service attachments; or
(c) An employee of the state or a county or municipality which has authorized circuit construction, operation or maintenance on or near the poles or structures of a public utility;
(2) “High voltage”, electric potential in excess of six hundred volts measured between conductors or between a conductor and the ground;
(3) “Overhead lines”, all electrical conductors installed above ground;
(4) “Person”, an individual, firm, joint venture, partnership, corporation, association, municipality, or governmental unit which performs or contracts to perform any function or activity upon any land, building, highway or other premises in proximity to an overhead line;
(5) “Public utility” includes those entities defined as such in section 386.020, RSMo, as well as municipally owned electrical systems and electric cooperatives provided for in chapters 91 and 394, RSMo.
(L. 1991 S.B. 214 & 264 § 2)
Activities within ten feet of power lines prohibited, exceptions.
319.080. Unless danger against contact with high voltage overhead lines has been guarded against as provided by section 319.083, no person, individually or through an agent or employee, shall store, operate, erect, maintain, move or transport any tools, machinery, equipment, supplies or materials or any other device that conducts electricity, within ten feet of any high voltage overhead line, or perform or require any other person to perform any function or activity upon any land, building, highway or other premises, if at any time during the performance thereof it could reasonably be expected that the person performing the function or activity could move or be placed within ten feet of any high voltage overhead line.
(L. 1991 S.B. 214 & 264 § 3)
Special devices and precautions required–costs.
319.083. 1. When any person desires to temporarily carry out any function or activity in closer proximity to any high voltage overhead line than is permitted by sections 319.075 to 319.090, the person or persons responsible for the function or activity shall notify the public utility which owns or operates the high voltage overhead line of the function or activity, and shall make appropriate arrangements with the public utility for temporary mechanical barriers, temporary deenergization and grounding of the conductors, temporary rerouting of electric current or temporary relocating of the conductors, before proceeding with any function or activity which would impair the clearances required by sections 319.075 to 319.090.
2. A person requesting a public utility to provide temporary clearances or other safety precautions shall be responsible for payment of those costs incurred by such utility in the temporary rerouting of electric current or the temporary relocating of the conductors. Upon request, a public utility shall provide a written cost estimate for the work needed to provide temporary clearances or other safety precautions. A public utility is not required to provide such clearances or other safety precautions until payment of the estimated amount has been made. Unless otherwise agreed to, a public utility shall commence work on such clearances or other safety precautions within seven working days after payment has been made.
(L. 1991 S.B. 214 & 264 § 4)
Presumption of negligence, when, rebuttable.
319.085. If a violation of any of the provisions of sections 319.075 to 319.090 results in physical or electrical contact with any high voltage overhead line such violation shall be a rebuttable presumption of negligence on the part of the violator in the event such violation shall cause injury, loss or damage, and, notwithstanding any other law to the contrary, the public utility shall have the right of contribution against any such violator. In addition to any penalties provided herein, liability under common law may apply.
(L. 1991 S.B. 214 & 264 § 5)
Exemptions from law.
319.088. Sections 319.075 to 319.090 shall not apply to:
(1) Construction, operation or maintenance of power lines and telecommunications lines or authorized attachments thereto by an authorized person as defined in section 319.078; or
(2) Governmental entities responding to an emergency situation.
(L. 1991 S.B. 214 & 264 § 6)
319.090. Any person who violates any of the provisions of sections319.075 to 319.088 is guilty of a class B misdemeanor.
(L. 1991 S.B. 214 & 264 § 7)
Experts in Electric Shock Cases
Electric shock cases are complex and require a number of liability and medical experts including, but not limited to, the following:
Power Line Company Industry Expert
National Electrical Safety Code Expert
Radiologist with expertise in PET Scans and/or Functional MRI’s
Vocational Rehabilitation Expert
Life Care Planner