If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RUSSELL MCKIE, UNPUBLISHED
September 1, 2022
Plaintiff-Appellant,
v No. 358845
Monroe Circuit Court
CONSUMERS ENERGY COMPANY, LC No. 20-143029-NI
Defendant-Appellee.
Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.
PER CURIAM.
Plaintiff appeals as of right the trial court’s order granting summary disposition under MCR
2.116(C)(10) in favor of defendant, Consumers Energy Company (Consumers), and dismissing
plaintiff’s complaint. For the reasons set forth in this opinion, we vacate the trial court’s order and
remand for further proceedings.
I. FACTUAL BACKGROUND
This matter arises from a June 6, 2017 incident in which plaintiff was electrocuted while
power washing a home for a customer. Plaintiff was self-employed, performing painting and
power-washing services. He had been in the business for more than 20 years. Plaintiff arrived at
the customer’s house between approximately 3:00 p.m. and 4:00 p.m. to begin power washing.
The weather was “good,” and it was light outside. Plaintiff saw the power lines in the back of the
home before he began power washing the back of the house. According to plaintiff, there were
wires running in the air at an angle toward one of the back corners of the house. The parties do
not dispute that these power lines were located within a utility easement held by Consumers. He
did not know how high the power lines were from the ground, but they “[l]ooked concerning.”
Plaintiff explained during his deposition that the closest electrical wire was “[d]efinitely . . . the
closest thing I’ve ever seen to a house” and that “something wasn’t right.” But he believed “that
the electrical company knew better” and that “[i]f they would put a pole that close to someone’s
house, that someone should be able to wash it, like I do everyone else’s house.”
Plaintiff began power washing the siding under the gutter at the top of the second story,
near the back corner where the power lines came closest to the house as they ran at an angle. He
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used a long spray wand with a metal nozzle. The wand was about 8 or 9 feet long, but it could
extend up to about 12 or 13 feet. There was evidence in the record that it was extended to
approximately 12 or 13 feet as plaintiff was power washing that day. He planned to switch to a
shorter spray wand after he finished cleaning the upper portion of the house so he could avoid
being close to the power lines as much as possible.
Plaintiff explained that while power washing the upper story, he “was keeping [the nozzle]
probably 4 to 6 inches away from the house at all times, ‘cause you got to deep clean, you’re 4 to
6 inches away from the house.” He estimated that his wand was simultaneously about 6 or 7 feet
from the closest power line, which was behind him. Plaintiff testified, “I knew what was behind
me and I definitely knew that there was a huge amount of power behind me, so I was so concerned
of trying to keep myself with that wand in front of me.” According to plaintiff, “[t]he water was
shooting towards the wires because it was hitting—you know, I’m shooting on a 45-degree angle
towards the house, it’s hitting that gutter, which didn’t have much of a soffit,” and there was a
“cloud of hot steam” because of the 260-degree water used in the power washer. He also testified
that the “wires weren’t wrapped.”
Within a short time of beginning to power wash this portion of the house, plaintiff was
electrocuted. Plaintiff maintained that his spray wand was still within 6 inches of the house and
was still 6 or 7 feet from the power line when he received the electrical shock. Plaintiff stated, “I
think the wire was getting wet and then it sent the shock over from the wire, to the gutter, down to
me.” He described the moment the shock occurred as follows:
I seen it all happen, I was looking straight up there, so I watched the water
molecules and the wire. The wire and the water molecules all came together as one
and it just shot all the way to the house, and then down to me, and then it was just
fire everywhere.
Plaintiff was eventually able to let go of the spray wand. His left foot was on fire, and a
neighbor helped put it out. Plaintiff was taken to the hospital by ambulance. He returned to work
within approximately a week.
II. EXPERT OPINIONS
Plaintiff’s forensic expert, Richard Buchanan, opined that the path of electricity had been
from the power line, through the mist, through the spray wand, through plaintiff’s body, and to the
ground. He opined that the wand did not make direct contact with the power line because plaintiff
would have been more severely injured, and the wand would have incurred more damage, had
direct contact occurred. Buchanan also explained in his deposition that “the spray wand had a very
small pinhole burn mark on it which, me, is evidence that there was an arc that initiated the current
flow from the energized line to the wand.” When asked if he could estimate the distance of the
arc based on the pinhole, Buchanan responded:
No, that’s almost impossible to do, although, certainly, we know that it
couldn’t have been too far from the line, I’d say within six inches of the line itself,
in order to be able to initiate that arc in the spray mist; and, obviously, there’s a lot
of variables that would contribute to determining what that distance had to be, but
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my best guess is within six inches.
Buchanan thus concluded that the electrical current must have flowed through the mist of
spray generated by the power washer to the tip of the wand. He also opined that there was no safe
way to effectively power wash the siding without being in close proximity to the power line.
Defendant’s expert, James Heyl, opined that the fine mist bouncing off the vinyl siding as
plaintiff operated the power washer would not have been a sufficient conductor for a dangerous
level of electrical current to flow to plaintiff’s spray wand at any distance greater than 6 inches
from the power line, and certainly not a distance of 9 feet from the power line, because of the air
space within a fine mist of water resulting in high resistance to electrical current. However, he
opined that if the wand came within 6 inches of the power line, or made direct contact with it, the
wand and the water in the hose could have become energized. According to Heyl, an electrical arc
could have formed through the air from the power line to the wand if the wand came within an
inch of the power line. He also opined that such close contact was possible given the height of the
power lines and the length of plaintiff’s spray wand. Heyl further stated in his report:
Work could have been performed with reduced clearance without
contacting the power line.
Proximity of the siding to the overhead power line and the length of the
sprayer would require careful maneuvering to prevent dangerous contact between
the sprayer and the power line.
It would be possible (but certainly not recommended) for a determined
worker to ‘sneak’ the sprayer tip upward within the 9-foot horizontal clearance to
wash top of the wall while standing at the edge of the patio. While certainly
encroaching into the MIOSHA-required l0-foot clearance zone, the spray wand
would still have been several feet from the power line.
However, the combined length of the extension pole, sprayer tip, and height
held above the patio necessary to reach the siding at the top of the wall would place
the spray tip at about l8 feet above the patio, at the same level as the power line.
At this height, any movement that raised the sprayer to a vertical position would
result in a close approach to, or contact, with the power line.
Both experts appeared to agree that the closest power line was approximately 18.5 feet
vertically from the ground and approximately as close as 9 feet horizontally from the house.
III. PROCEDURAL HISTORY
Plaintiff alleged in his complaint that defendant had breached its duty to safely maintain,
position, inspect, repair, and insulate its power lines to protect people conducting reasonably
foreseeable activity within the vicinity from injury. Consumers moved for summary disposition
under MCR 2.116(C)(10), arguing that plaintiff’s claim sounded in premises liability because it
arose out of a condition on land, that the claim was barred because the condition was open and
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obvious, and that plaintiff still could not establish a claim under ordinary negligence principles
because defendant had no duty to warn of a known risk and plaintiff could not demonstrate
proximate causation. Plaintiff opposed the motion.
Following a hearing on the motion, the trial court granted summary disposition in
Consumers’ favor. The court reasoned:
I have to agree with Defendant’s position in this case. I don’t believe that
there was a duty on the part of Consumers Energy here, to have to warn or anything
else like that, or even to move these power lines when they are built in conformity
with all regulations and standards. There, quite frankly, is no question in the
Court’s mind here too, that I do believe this is a premises liability issue. And even
if I were to go that it was ordinary negligence, I accept the fact and what the case
law cites. Utilities do not owe the duty, and especially when it is such an open and
an obvious situation.
This is unfortunate what happened to the Plaintiff, I agree. But as defense
has pointed out, [plaintiff] has been involved in the trade for a substantial period of
time. He knows the perils and the risk when you are operating in these areas.
And, quite frankly, I think even on a comparative negligence aspect, there
is probably 50 percent more negligence on his part here for the contact that was
made. Whether I accept it was his actual wand that hit or it was arcing from the
water mist, that is something that’s completely foreseeable for somebody that is
well versed in the trade and can see what is taking place.
IV. STANDARD OF REVIEW
We review de novo the trial court’s summary disposition ruling. El-Khalil v Oakwood
Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary disposition is proper under
MCR 2.116(C)(10) when, after considering all evidence in the light most favorable to the party
opposing the motion, the court determines there is no genuine issue of material fact. Id. at 160.
“ ‘A genuine issue of material fact exists when the record leaves open an issue upon which
reasonable minds might differ.’ ” Id. (citation omitted). Whether defendant owed plaintiff a duty
under the circumstances is a question of law that we review de novo. Fultz v Union-Commerce
Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).
V. ANALYSIS
We first address plaintiff’s argument that the trial court erred by granting summary
disposition based on concluding that defendant did not owe plaintiff a duty, which was influenced
by the trial court’s determination that plaintiff’s claim sounded a premises liability. Plaintiff
argues that the trial court’s characterization of the nature of his claim was also erroneous.
Consumers argues on appeal that the trial court was correct to rule that plaintiff’s claim sounded
in premises liability.
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“In a premises liability action, a plaintiff must prove the elements of negligence: (1) the
defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the
proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Buhalis v Trinity
Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012). “The threshold question
in a negligence action is whether the defendant owed a duty to the plaintiff. It is axiomatic that
there can be no tort liability unless defendants owed a duty to plaintiff.” Fultz, 470 Mich at 463
(quotation marks and citation omitted). However,
Michigan law distinguishes between claims arising from ordinary negligence and
claims premised on a condition of the land. In the latter case, liability arises solely
from the defendant’s duty as an owner, possessor, or occupier of land. If the
plaintiff’s injury arose from an allegedly dangerous condition on the land, the action
sounds in premises liability rather than ordinary negligence; this is true even when
the plaintiff alleges that the premises possessor created the condition giving rise to
the plaintiff’s injury. [Buhalis, 296 Mich App at 692 (citations omitted).]
Here, although plaintiff’s complaint did not include a label for his claim, it “is well settled
that the gravamen of an action is determined by reading the complaint as a whole, and by looking
beyond mere procedural labels to determine the exact nature of the claim.” Id. at 691-692
(quotation marks and citation omitted).
Plaintiff’s complaint alleged that “[w]hile power washing the home, mist from the home
came in contact with the low-hanging power lines, which in turn caused electricity to flow through
Plaintiff’s spraying wand, resulting in Plaintiff becoming electrocuted.” The complaint alleged
that “energy companies have an affirmative duty to safely maintain and ensure that powerlines are
positioned in a manner and location to protect those near the lines, and to inspect, repair, insulate
and protect all persons conducting reasonably foreseeable activity from injury from the
powerlines.” Further, the complaint alleged that Consumers “breached this duty by failing to
properly place their powerlines in a location that would ensure the safety of others conducting
reasonably foreseeable activity and/or by negligently failing to move the powerlines upon express
notice of the danger of their lines.”
Consumers maintains that because the power line is a condition on land and is located
within its easement, plaintiff’s complaint sounded in premises liability. Consumers further argues
that plaintiff’s claim is thus barred because the power lines were open and obvious. Consumers
cites Morrow v Boldt, 203 Mich App 324, 329-330; 512 NW2d 83 (1994), for the general rule that
“it is the owner of an easement, rather than the owner of the servient estate, who has the duty to
maintain the easement in a safe condition so as to prevent injuries to third parties.”
However, in Schultz v Consumers Power Co, 443 Mich 445, 453-454; 506 NW2d 175
(1993), our Supreme Court specifically addressed the duty owed by an electric utility company to
the public with respect to its high-voltage power lines, holding as follows:
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
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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. Electric companies must exercise ordinary care to
guarantee that equipment is kept in a reasonably safe condition. Although we do
not follow a rule of absolute liability, the defendant’s duties to inspect and repair
involve more than merely remedying defective conditions actually brought to its
attention. [Citation omitted.]
In reaching this conclusion, the Schultz Court explained that “the duty element questions
whether an actor has a legal obligation to so govern his actions as not to unreasonably endanger
the person or property of others,” id. at 449, and reasoned as follows:
In determining whether a duty exists, courts examine a wide variety of
factors, including the relationship of the parties and the foreseeability and nature of
the risk. Most importantly, for a duty to arise there must exist a sufficient
relationship between the plaintiff and the defendant . . . .
[T]o require the actor to act, some sort of relationship must
exist between the actor and the other party which the law or society
views as sufficiently strong to require more than mere observation
of the events which unfold on the part of the defendant. It is the fact
of existence of this relationship which the law usually refers to as a
duty on the part of the actor.
Clearly, the relationship between the utility company and the decedent was
sufficient to impose a duty under the circumstances. It is well established that those
who undertake particular activities or enter into special relationships assume a
distinctive duty to procure knowledge and experience regarding that activity,
person, or thing. For example, a landlord must inspect a premises to keep it in a
reasonably safe condition. Physicians must keep reasonably abreast of current
advances in their field. Manufacturers must diligently inspect their products to
discover lurking dangers. Lastly, a carrier owes to its passengers the duty of
discovering all detectable defects.
Similarly, compelling reasons mandate that a company that maintains and
employs energized power lines must exercise reasonable care to reduce potential
hazards as far as practicable. First, electrical energy possesses inherently dangerous
properties. Second, electric utility companies possess expertise in dealing with
electrical phenomena and delivering electricity. Lastly, although a reasonable
person can be charged with the knowledge of certain fundamental facts and laws of
nature that are part of the universal human experience, such as the dangerous
properties of electricity, it is well settled that electricity possesses inherently
dangerous properties requiring expertise in dealing with its phenomena.
Therefore, pursuant to its duty, a power company has an obligation to reasonably
inspect and repair wires and other instrumentalities in order to discover and
remedy hazards and defects. [Id. at 450-451 (citations and some quotation marks
omitted; emphasis added).]
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This approach to the duty of electrical utility companies has a long history:
Long ago this Court held that utility companies owed the public “the duty
of safeguarding by reasonable inspection and supervision of its wire . . . and this
duty was not met by a showing of suitable installation alone . . . .” The Court
further explained that “[r]easonable supervision to maintain the integrity of the wire
was required. The purpose of inspection is to discover need of repair and by repair
prevent injury to persons and damage to property, and the duty is inclusive of
wanton interference by human agency as well as wear and interference by the
elements.” [Id. at 454 n 10 (citations omitted; ellipses and alteration in original.)]
In Case v Consumers Power Co, 463 Mich 1, 9; 615 NW2d 17 (2000), our Supreme Court
explained that “the dangers of high-voltage electricity (fire, electrocution, and death among them)”
justified the obligation to inspect and repair that was imposed on electric utility companies in
Schultz. The Court further stated:
The “duty” of inspection and repair imposed in Schultz was intended to
protect against the likelihood of serious injury or death. Clearly, “reasonable care
under the circumstances” represents a sliding scale. The more severe the potential
injury, the more resources a reasonable person will expend to try and prevent that
injury. Similarly, the greater the likelihood that a severe injury will result, the
greater the lengths a reasonable person will go to prevent it. This principle is widely
recognized. [Id. (citation omitted).]
Accordingly, our Supreme Court has made clear that an electrical utility company’s duty
with respect to overhead high-voltage power lines stems from the inherently dangerous properties
of electricity, the potentially high severity of injury that electricity can cause, and the utility
company’s possession of the specialized knowledge and expertise in dealing with electrical
phenomena. See Schultz, 443 Mich at 449-454, 454 n 10; Case, 463 Mich at 9. This duty is not
imposed based on the mere possession of an easement in which to place the power lines, and this
action thus does not sound in premises liability. See Buhalis, 296 Mich App at 692. The trial
court therefore erred by concluding that this action sounded in premises liability and applying that
framework to justify its decision to grant summary disposition in favor of Consumers.
Nonetheless, as the Schultz Court clarified, this duty does not impose “a rule of absolute
liability.” Schultz, 443 Mich at 454. The question of an electrical utility company’s duty in a
particular set of circumstances also involves consideration of “foreseeability,” which
depends upon whether or not a reasonable man could anticipate that a given event
might occur under certain conditions. But the mere fact that an event may be
foreseeable does not impose a duty upon the defendant to take some kind of action
accordingly. The event which he perceives might occur must pose some sort of
risk of injury to another person or his property before the actor may be required to
act.
Those engaged in transmitting electricity are bound to anticipate ordinary
use of the area surrounding the lines and to appropriately safeguard the attendant
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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. [Id. at
451-452 (quotation marks and citation omitted; emphasis added).]
Here, the trial court failed to apply the above test. Contrary to the trial court’s ruling,
“[c]ompliance with the [National Electric Safety Code (NESC)] or an industry-wide standard is
not an absolute defense to a claim of negligence.” Schultz, 443 Mich at 456. The level of
compliance with industry standards is more properly directed at the question of breach rather than
duty. Id. “While it may be evidence of due care, conformity with industry standards is not
conclusive on the question of negligence where a reasonable person engaged in the industry would
have taken additional precautions under the circumstances.” Id.
Because the trial court applied the incorrect legal framework in resolving defendant’s
motion for summary disposition, we vacate the trial court’s order and remand for further
proceedings consistent with this opinion.
Vacated and remanded. We do not retain jurisdiction. Plaintiff having prevailed may tax
costs. MCR 7.219.
/s/ Michael J. Riordan
/s/ Stephen L. Borrello
/s/ Anica Letica
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