STEVEN J VALCANIANT V THE DETROIT EDISON COMPANY
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Michigan Supreme Court
Lansing, Michigan 489009
Opinion
Chief Justice
Justices
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Marilyn Kelly
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
FILED MAY 19, 2004
STEVEN J. VALCANIANT and KATHLEEN A.
VALCANIANT,
Plaintiffs-Appellants,
v
No. 121141
DETROIT EDISON COMPANY,
Defendant-Appellee
and
DE ANGELIS LANDSCAPE, INC.,
Defendant.
_______________________________
PER CURIAM
We granted leave to appeal to consider whether Detroit
Edison Company owed plaintiff1 a legal duty to de-energize
an overhead power line that was severed by equipment being
operated under plaintiff’s direction.
1
Relying on Groncki v
Throughout this opinion, "plaintiff" refers only to
Steven J. Valcaniant.
Although plaintiff’s wife, Kathleen
A. Valcaniant, is also a party to the lawsuit, her claims
are derivative.
Detroit Edison Co, 453 Mich 644; 557 NW2d 289 (1996), the
Court of Appeals held that Edison had no reason to foresee
plaintiff’s injury because it had no reason to foresee that
plaintiff was the cause of the fault and, as a result, did
not owe a legal duty to plaintiff.2
We affirm.
I
In 1974, plaintiff purchased a four-acre gravel lot in
Imlay City; in 1987, he opened a used car business.
times,
uninsulated
power
lines
along the back property line.
owned
by
Edison
At all
existed
These lines were suspended
more than twenty-five feet in the air.
Plaintiff admitted
that he was aware of the lines and the danger they posed.
On August 15, 1995, plaintiff was injured while giving
directions to the driver of a dump truck delivering fill
dirt to the back portion of his property.
As the truck
became free of the weight of its load, it rose upward and
its
highest
edge
severed
an
overhead
power
line.
The
ground was wet, and the electricity that flowed through the
truck continued through the ground to plaintiff, who was
standing six or seven feet away, knocking him unconscious.
A
sensor
known
as
an
automatic
reclosure
device
detected the fault in the severed line almost immediately,
2
Unpublished opinion per curiam, issued February 19,
2002 (Docket No. 227499).
2
and momentarily stopped the current flow.
Because many
faults are temporary, the sensor is designed to restart the
current flow three times within a period of six seconds,
checking each time to see whether the fault remains.
If
the fault has cleared, the sensor will allow the line to
remain energized.
If, after these three cycles, the fault
remains, the sensor will completely de-energize the line.
By
using
this
interruptions
caused
by
of
faults
sensor,
its
Edison
can
customers’
occasioned
by
avoid
unnecessary
service
a
that
power
would
line’s
be
fleeting
contact with objects like tree limbs and small animals.
Here, the sensor operated as intended; it restarted
the current three times and then de-energized the line when
the
fault
failed
to
clear.
Plaintiff
suffered
second-
degree burns to his back and arm from the shocks that he
received while the sensor completed its cycles.
II
Plaintiff and his wife sued Edison, alleging that the
company
was
disposition,
plaintiff.
liable
in
arguing
tort.3
that
it
Edison
owed
moved
no
for
legal
summary
duty
to
Plaintiff opposed the motion by arguing that
Edison owed it a legal duty to de-energize the severed
3
truck.
They also sued the contractor who operated the dump
That party was later dismissed by stipulation.
3
power
line
immediately.
Plaintiff
asserted
that
Edison
should have foreseen that its use of the sensor could cause
injury.
The trial court agreed with plaintiff and denied
Edison’s motion.
The Court of Appeals granted Edison’s application for
leave for interlocutory appeal and reversed the decision of
the trial court.
After considering this Court’s opinion in
Groncki, it concluded that Edison owed no legal duty to
plaintiff and was entitled to summary disposition.
We
appeal.
granted
plaintiff’s
application
for
leave
to
468 Mich 868 (2003).
III
We
review
de
novo
appeals
relating
to
summary
disposition.
Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d
817 (1999).
The existence of a legal duty is a question of
law.4
Groncki, 453 Mich 649; Beaudrie v Henderson, 465 Mich
124, 130; 631 NW2d 308 (2001).
In determining whether a
legal duty exists, courts examine a variety of factors,
including “foreseeability of the harm, degree of certainty
4
Duty concerns whether a defendant is under any legal
obligation to act for the benefit of the plaintiff.
Buczkowski v McKay, 441 Mich 96, 100; 490 NW2d 330 (1992).
This concept should be distinguished from the standard of
care,
which,
in
negligence
cases,
always
requires
reasonable conduct.
See id. (distinguishing “between duty
as the problem of the relational obligation between the
plaintiff and the defendant, and the standard of care that
in negligence cases is always reasonable conduct”).
4
of injury, closeness of connection between the conduct and
injury,
moral
preventing
blame
future
attached
harm,
and
to
.
the
.
conduct,
.
the
policy
burdens
of
and
consequences of imposing a duty and the resulting liability
for breach.”
NW2d 330
Buczkowski v McKay, 441 Mich 96, 101 n 4; 490
(1992) (citing Prosser & Keaton, Torts [5th ed],
§ 53, p 359 n 24).
See also Schultz v Consumers Power Co,
443 Mich 445, 450; 506 NW2d 175 (1993).
In this case, plaintiff does not argue that Edison
failed to inspect the power lines, or that the lines were
in disrepair.5
Instead, plaintiff argues that Edison had a
legal duty to de-energize the power line immediately and
completely after it was severed by the dump truck.
This
Court addressed a power company’s legal duty to de-energize
a power line in
Groncki.
lawsuits
against
brought
That case consolidated three
Edison
by
individuals
who
were
injured when equipment they were using outdoors came into
contact
with
overhead
power
lines.6
453
Mich
650-653
5
As a result, this Court’s opinion in Schultz, 443
Mich 451, in which we held that the standard of care
requires a power company “to reasonably inspect and repair
wires and other instrumentalities in order to discover and
remedy hazards and defects,” is not pertinent to this case.
6
In Groncki, a condominium complex’s maintenance
supervisor accidentally brought an aluminum ladder into
contact with a power line twenty-one feet overhead.
In
Bohnert, a truck driver deployed his truck’s unloading boom
in a way that caused it to contact a power line twenty-six
5
(opinion by BRICKLEY, C.J.).
In the lead opinion, Chief
Justice BRICKLEY concluded that the injuries suffered by the
three plaintiffs were not foreseeable and that Edison owed
them
no
legal
duty.
He
added
that
public
policy
considerations, including the “public’s need for electric
power
at
a
reasonable
cost,”
further
militated
imposing a legal duty under the circumstances.
against
Id. at 661.7
Similar considerations are implicated in this case.
However,
we
need
Buczkowski.
See
considerations
may
[than
not
reach
Buczkowski,
be,
and
foreseeability].”).
plaintiff’s
threshold
foreseeable.
injury
the
fail
balancing
supra
usually
The
to
requirement—that
at
are,
101
more
circumstances
satisfy
the
even
harm
required
by
(“Other
important
surrounding
the
incurred
lowest
was
See Brown v Michigan Bell Telephone, Inc, 459
Mich 874 (1998).
feet overhead. Finally, in Parcher, a construction worker
used a forklift to move scaffolding and caused the
scaffolding to contact a power line that was thirty-five
feet overhead.
7
No other justice signed the lead opinion.
Justice
Boyle concurred in the result only.
Id. at 665.
Justice
Weaver, joined by Justice RILEY, concurred with Chief
Justice BRICKLEY regarding the rationale and disposition of
the claims against Edison, but dissented regarding the
liability imposed on a nonutility defendant.
Id. at 674.
Justice MALLETT, joined by Justice CAVANAGH, concurred in the
disposition of Bohnert and Parcher, but dissented in
Groncki because they believed that the harm suffered by
that plaintiff was foreseeable.
Id. at 665.
Finally,
Justice LEVIN dissented in all three cases. Id. at 681.
6
Edison had no obligation to anticipate that the dump
truck operated under plaintiff’s direction would sever an
overhead power line that was suspended more than twentyfive feet above the ground, much less that plaintiff would
be standing on wet ground several feet away.
As a result,
Edison had no legal duty to anticipate that plaintiff might
be injured when the sensor device briefly re-energized the
line, as it was designed to do, or to take other steps to
prevent
plaintiff’s
injury.
Because
we
conclude
that
plaintiff’s injuries were unforeseeable as a matter of law,
we need not consider other variables that might militate
against
the
foreseeable.
We
imposition
of
a
legal
duty
where
harm
is
See Buczkowski, supra at 102.8
therefore
affirm
the
Court
of
Appeals
opinion
reversing the decision of the trial court and remanding
this case for entry of an order of summary disposition in
favor of Edison.
MCR 7.302(G)(1).
Maura D. Corrigan
Michael F. Cavanagh
Elizabeth A. Weaver
Clifford W. Taylor
Robert P. Young, Jr.
Stephen J. Markman
8
We noted in Buczkowski that “[w]here foreseeability
fails as an adequate template for the existence of a duty,
recourse must be had to the basic issues of policy
underlying the core problem whether the plaintiff’s
interests are entitled to legal protection against the
defendant’s conduct.” Id. at 102.
7
S T A T E
O F
M I C H I G A N
SUPREME COURT
STEVEN J. VALCANIANT and
KATHLEEN A. VALCANIANT,
Plaintiffs-Appellants,
v
No. 121141
DETROIT EDISON COMPANY,
Defendant-Appellee,
and
DE ANGELIS LANDSCAPE, INC.,
Defendant.
_______________________________
KELLY, J. (concurring in result only).
The majority concludes that defendant Detroit Edison
Company has no duty to de-energize an electrical line that
is accidentally severed by another’s negligence.
I find
its analysis flawed.
As
Edison
Justice
Co,1
proximate
companies.
this
Levin
recognized
Court
causation
with
in
continues
to
respect
to
Groncki
v
confuse
electric
Detroit
duty
and
utility
The result has been that these companies are
now exempt from a broad duty to exercise due care for the
1
453 Mich 644, 679-680; 557 NW2d 289 (1996) (Levin,
J., dissenting).
welfare of others.
Because I cannot agree that this should
be the law, I must dissent from the analysis.
CLARIFYING TORT LIABILITY
Traditionally,
there
are
four
elements
duty, breach, causation, and damages.
to
a
tort:
Case v Consumers
Power Co, 463 Mich 1, 6; 615 NW2d 17 (2000).
All but the
last are at issue in this case.
Whether a defendant owes a duty to a plaintiff is a
question of law.
Simko v Blake, 448 Mich 648, 655; 532
NW2d 842 (1995).
Recognition of a duty implicates various
considerations: the relationship between the parties, the
nature and foreseeability of the risk to be avoided, and
the burdens and benefits of recognition.
See Buczowski v
McKay, 441 Mich 96, 101-103; 490 NW2d 330 (1992). Among
strangers who lack a special relationship to one another,
the duty owed is most basic, that of reasonable conduct
under the circumstances. Moning v Alfono, 400 Mich 425,
443; 254 NW2d 759 (1977), citing Restatement of Torts, 2d,
§ 283.
Whether a defendant fulfilled or whether it breached
its duty in a given case is a question of fact.
Higgins,
454
controversy
Mich
among
46,
53;
559
strangers
NW2d
who
639
Murdock v
(1997).
lack
a
In
a
special
relationship, the trier of fact must decide whether the
2
defendant breached its duty to exercise reasonable care for
the safety of others.
The
element
defendant’s
injury.
of
of
breach
causation
its
duty
addresses
caused
Causation has two components.
whether
the
a
plaintiff’s
The first is actual
causation: whether the plaintiff’s injury was caused by the
defendant’s breach of its duty toward the plaintiff.
It is
a question of fact, which is also resolved by the trier of
fact.
The second component is proximate or legal cause.
defendant’s
caused
a
breach
of
plaintiff’s
duty
is
injury
said
only
to
have
where
A
proximately
the
defendant
reasonably could have foreseen the kind of harm that befell
the plaintiff.
It is unnecessary that the exact mechanism
or sequence of events leading to the harm be reasonably
foreseeable.
Dobbs, Torts, Proximate Cause, ch 10, § 180,
p 444 (2001).
The foreseeability requirement arises from
the
that
principles
liability
practical
manner
and
justice.
Dobbs,
§
question of law.
The
effect
should
should
comport
181,
p
446.
be
limited
with
Proximate
in
notions
cause
is
a
of
a
Moning at 440.
of
foreseeability
on
duty
and
proximate
cause confounded Judges Cardozo and Andrews in the famous
3
case Palsgraf v Long Island R Co2 and continues to vex
jurists today. This Court has adopted Judge Cardozo’s view
that whether a duty is owed depends on whether harm is
reasonably foreseeable.
See Moning at 439, 441.
ELECTRIC UTILITY COMPANIES
PUBLIC
OWE THE
A
BROAD DUTY
The Court today affirms the holding in Groncki that
inadvertent contact with overhead electric utility lines is
not reasonably foreseeable as a matter of law.
Therefore,
electric utilities do not owe a duty to others to take
reasonable
precautions
to
guard
against
that
risk.
I
cannot agree.
It is quite reasonably foreseeable that someone may
act in negligent disregard for his own safety and contact
an overhead electric utility line.
I take judicial notice
that, with respect to electrical lines, about five percent
of all workplace fatalities each year are electrocutions.
United
States
Occupational
Dep’t
Injuries
of
Labor,
2002
(Charts),
Census
of
Fatal
<http://www.bls.gov/
iif/oshwc/cfoi/cfch0001.pdf> (accessed May 3, 2004).
Heavy
equipment that reaches great heights is routinely operated
in modern society.
Thus, under the appropriate negligence
analysis,
utilities
2
electric
owe
248 NY 339; 162 NE 99 (1928).
4
a
duty
to
the
general
public to conduct their business so as not to create an
unreasonable risk of accidental electrocution.
As this Court has held:
Those engaged in transmitting electricity
are bound to anticipate ordinary use of the area
surrounding
the
lines
and
to
appropriately
safeguard the attendant risks.
The test to
determine whether a duty was owed is not whether
the
company
should
have
anticipated
the
particular act from which the injury resulted,
but
whether
it
should
have
foreseen
the
probability that injury might result from any
reasonable activity done on the premises for
business, work, or pleasure. . . .
Where service wires erected and maintained
by an electric utility company carry a powerful
electric current, so that persons coming into
contact with or proximity to them are likely to
suffer serious injury or death, the company must
exercise reasonable care to protect the public
from danger. The degree of care required is that
used by prudent persons in the industry, under
like conditions and proportionate to the dangers
involved, to guard against reasonably foreseeable
or
anticipated
contingencies.
[Schultz
v
Consumers Power Co, 443 Mich 445, 452-454; 506
NW2d 175 (1993) (emphasis added).]
In
short,
electric
companies
have
a
duty
to
conduct
themselves reasonably under the circumstances.
In this case, the majority frames the issue as whether
defendant had a duty to do a specific act: de-energize a
severed
line
determined.
until
the
cause
of
the
fault
can
be
It then treats Steven Valcaniant’s negligence
as conclusive evidence that defendant does not owe a duty
to perform that act.
The majority finds that it is not
5
reasonably
foreseeable
that
someone
in
Mr.
Valcaniant’s
position would contact the electrical line involved here.
The
majority’s
analysis
might
be
appropriate
in
a
contributory negligence jurisdiction where the effect of
the plaintiff’s negligence, even when slight, is to absolve
the defendant of all legal liability.
But, Michigan long
ago abandoned this harsh tort theory.
Placek v Sterling
Hts, 405 Mich 638, 701; 275 NW2d 511 (1979).
Rather, a
defendant may be liable to a negligent plaintiff to the
extent his negligence caused the plaintiff’s injury.
See
MCL 600.2956.
Here,
it
is
reasonably
foreseeable
that
heavy
equipment, such as the raised bed of a dump truck, would
contact an overhead electrical line, causing injury.
defendant
owed
plaintiffs
a
duty
to
Thus,
install
its
distribution lines in a manner that does not create an
unreasonable risk from such a vehicle.
I do not agree
that, as a matter of law, electric utility companies owe
the
public
no
duty
to
take
reasonable
precautions
protect it from accidental contact with their lines.
to
The
absence of a duty encourages utility defendants to rely on
customs in the industry and discourages innovation of new
and safer ways to deliver electricity.
6
Blind reliance on industry customs was rejected more
than seventy years ago in the famous case of The TJ Hooper,
60 F2d 737 (CA 2, 1932).
§ 295A, illus 2.
See also 2 Restatement Torts, 2d,
There, the owners of a tugboat failed to
furnish emergency radios to their crew, because such radios
were not standard equipment in the industry.
appeals
court
held
that
reliance
on
The federal
custom
was
a
consideration in whether the defendant acted reasonably in
providing for the crew’s safety, but was not conclusive.
That decision has encouraged the standard of care to evolve
as technology advances.
The same principle applies here.
WHY SUMMARY DISPOSITION
WAS
APPROPRIATE
IN THIS
CASE
Once we recognize that defendant has a broad duty to
exercise
due
care
to
protect
the
public,
becomes whether it breached its duty.
the
question
The jury should
determine whether defendant acted reasonably in this case
by placing its lines (1) high off the ground, (2) in plain
view near the back of plaintiffs’ property, (3) away from
easy
access
by
the
public,
and
(4)
by
installing
a
reclosure device to minimize dangerous power failures and
protect
plaintiff
from
being
exposed
to
a
continuous
charge.
The following facts are without contest: (1) plaintiff
Stephen Valcaniant knew that defendant’s electrical lines
7
were in the air at the back of his property and that they
were dangerous; (2) defendant had placed its lines higher
than the height recommended by the National Electric Safety
Code,
American
National
Standards
Institute,
National
Electric Safety Code, Table 232-1 (1989); (3) the lines
remained more than seven feet above that recommendation at
the time of the accident, even after plaintiff had raised
the
grade
placed
of
the
ground
underground,
they
below;
could
(4)
have
had
been
the
lines
been
susceptible
to
flooding and accidental contact with digging equipment; (5)
defendant installed automatic reclosure devices to avoid
unnecessarily mobilizing repair crews to restore electrical
service
interrupted
by
intermittent
short
circuits
from
tree limbs and wildlife; (6) these reclosure devices have
become standard in the industry, and can eliminate up to
eighty percent of power disruptions; (7) interruptions in
electrical
disabling
service
medical
can
endanger
devices
and
lives
traffic
in
such
signals;
ways
as
(8)
the
lines and equipment were in good repair.
Considering
reliable
today’s
electrical
limitations
system,
no
on
maintaining
reasonable
disagree that defendant met its duty.
juror
a
could
Therefore, on the
basis of facts and reasoning not given in the opinion per
8
curiam, I agree that the Court of Appeals properly ordered
a grant of summary disposition for defendant.
CONCLUSION
I believe that the proper analysis of this case is
that electric utility companies have a broad duty to take
reasonable care for the safety of others.
The commodity
they provide carries risks from which the public must be
protected.
public
Defendant must fulfill its duty to protect the
against
reasonably
foreseeable
negligent
contact
with its electrical lines.
In this case, defendant presented unrebutted evidence
that its actions comported with industry standards and that
preferable alternatives are not reasonably available.
would
affirm
the
decision
of
the
Court
of
Appeals
I
and
direct an order entering summary disposition for defendant.
Marilyn Kelly
9
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