concurring in part and dissenting in part.
I agree with that portion of the majority opinion which concludes that the City of Fountain had no duty to elevate the transmission lines. However, because I also conclude that plaintiff failed to prove the breach of any duty owed to him and also failed to establish that any alleged negligence by the City of Fountain proximately caused his accident, I respectfully dissent from that portion of the majority opinion which remands the cause for a new trial.
In Connes v. Molalla Transport System, Inc., 831 P.2d 1316, 1320 (Colo.1992), our supreme court discussed duty in the context of a negligence claim:
A duty of reasonable care arises when there is a foreseeable risk of injury to others from a defendant’s failure to take protective action to prevent the injury. While foreseeability is a prime factor in the duty calculus, a court also must weigh other factors, including the social utility of the defendant’s conduct, the magnitude of the burden of guarding against the harm caused to the plaintiff, the practical consequences of placing such a burden on the defendant, and any additional elements disclosed by the particular circumstances of the case, (citations omitted)
Thus, our supreme court recognized that no one factor was controlling. Instead, the question of whether a duty existed was based upon fairness, that is, “whether reasonable persons would recognize a duty and agree that it exists.” Taco Bell, Inc. v. Lannon, 744 P.2d 43, 46 (Colo.1987).
In Wilson v. Kansas Power & Light Co., 232 Kan. 506, 657 P.2d 546 (1983) the Kansas supreme court faced a factual situation virtually identical to the instant case. There, the plaintiff was injured while laying aluminum irrigation pipe on a farm he owned with his brothers. The plaintiff and one of his brothers were in the process of moving a 30-foot section of irrigation pipe when they noticed that the gate inside the pipe was loose. They lifted the pipe vertically in order to allow the gate to fall out of the irrigation pipe, and the pipe came into contact with the overhead high-voltage power line owned and maintained by the defendant power company.
The injured plaintiff filed an action against the power company claiming that the use of metal irrigation pipes on his property created a duty by the power company to: (1) modify or relocate the power lines in such a manner as would have prevented the accident in *513question; (2) place warning signs on the transmission poles; and/or (3) regularly inspect the poles.
Following a jury verdict finding the power company primarily at fault, the Kansas supreme court reversed and ordered judgment entered in favor of the power company. The court rejected all of the plaintiffs theories of liability and held that he 'either did not establish a duty owed to him or that the power company’s alleged negligence did not proximately cause plaintiffs injuries.
The Wilson court also rejected plaintiffs claim that the power company was negligent in failing to put warning signs on the poles, finding that there was no evidence that the presence of warning signs would have prevented the accident. It found that, even if signs had been placed on the poles, the warnings would only have told plaintiff and his brother what they already knew: that high voltage power lines are dangerous if touched with a metal pipe.
There is a substantial body of authority consistent with the holding in Wilson. See First Trust & Savings Bank v. Commonwealth Edison Co., 141 Ill.App.3d 668, 95 Ill.Dec. 782, 490 N.E.2d 255 (1986) (power company did not have duty to guard against possibility that citizens band radio towers might make contact with power fines on private property); Mosby v. Southwestern Electric Power Co., 659 F.2d 680 (5th Cir.1981) (“a claim of ignorance of the properties and dangers of electricity is not worthy of credence in this day and age.”). See also Plunkett v. Arkansas Power & Light Co., 282 Ark. 252, 668 S.W.2d 8 (1984) (it is common knowledge that electric wires are dangerous and to be avoided); Daniel v. South Kentucky R.E.C.C., 609 S.W.2d 372 (Ky.App.1980) (testimony that plaintiff did not know the voltage of overhead wires or whether the wires were insulated was irrelevant; plaintiff charged with knowledge of danger of power fines as a matter of law).
Here, at the time of the accident, plaintiff was 17 years old. According to the testimony, this regrettable accident occurred simply because he was not paying attention to the electric wires when he lifted the irrigation pipe. He nowhere suggests that he was unaware of the dangers of electricity, nor does he cite to any authority in which a court has imposed a duty upon a power company to warn of the dangers of electricity under similar circumstances.
In the absence of any such authority, I would hold that when, as here, there is no showing that the high voltage power fines violated code requirements or that the defendant had reason to anticipate a specific danger, the mere possibility that someone might lift a 30-foot irrigation pipe vertically and accidentally contact a power fine is insufficient as a matter of law to establish any duty by the deliverer of electricity to warn or to take other precautions.
I would further hold that although a safety program warning about the dangers of electricity might be highly desirable, here, the failure to warn plaintiff of the danger of electricity was not a proximate cause of the accident as a matter of law because it is common knowledge that electric wires are dangerous. See Wilson v. Kansas Power & Light Co. supra; Mosby v. Southwestern Electric Power Co. supra; Plunkett v. Arkansas Power & Light Co. supra.
I would therefore reverse the judgment of the trial court and remand with directions that judgment be entered in favor of the City of Fountain.