Hoffman v. Union Electric Co.

STEPHEN N. LIMBAUGH, JR., Judge.

Theodore and Deborah Hoffman appeal the entry of summary judgment disallowing their claim of negligence against Union Electric Company (UE) for the wrongful death of their daughter. After opinion by the Court of Appeals, Eastern District, this Court granted transfer. Mo. Const, art. V, sec. 10. The judgment is affirmed.

Appellants’ daughter, Tiffany Hoffman, was fatally injured when an automobile in which she was a passenger veered out of control, struck a UE electric pole, overturned, and then caught fire after an energized power line fell on it. UE’s computer monitoring system recorded an alarm with respect to the downed power line, and less than a minute later the electrical circuits “locked open,” de-energizing the circuits so that no current was flowing through the line. Emergency personnel arrived at the scene at about the same time but, upon finding the power line looped over the undercarriage of the vehicle, they did not immediately extricate Tiffany who was trapped inside. Several UE employees were dispatched to the scene, including a line service worker, but a UE construction supervisor was the first to arrive, about 25 minutes after the power line had been de-energized. Although company safety regulations and industry standards direct that employees should refrain from working on downed power lines until they are “isolated and grounded,” the supervisor did not have the proper equipment to do so, having come straight from his house in his personal vehicle. Nonetheless, relying on his experience and knowledge that the system is designed to de-energize under these circumstances, he obtained a fiberglass stick from a fire truck and removed the power line. At that point, the emergency personnel removed Tiffany from the vehicle and transported her to a hospital. She died several weeks later. Thereafter, her parents filed this wrongful death action.

Appeals from summary judgment are essentially reviewed de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). To be entitled to summary judgment, the moving party must demonstrate that: (1) there is no genuine dispute as to the material facts on which the party relies for summary judgment; and (2) on those facts, the party is entitled to judgment as a matter of law. Rule 74.04. A defendant may establish a right to summary judgment by showing that the plaintiff is unable to produce sufficient evidence to establish one or more of the essential elements of the plaintiffs claim. ITT Commercial Finance Corp., 854 S.W.2d at 381. Finally, on appeal, the court “will review the record in the light most favorable to the party against whom judgment was entered.” Id. at 376.

In their petition, appellants allege that UE was negligent in failing to promptly inform emergency personnel “that it was safe to render medical care to decedent at the scene of the crash” and that UE’s negligence was the cause of decedent’s death. In their briefs and at oral argument, appellants revised their argument to allege that UE had a duty to inform emergency personnel that the power line had been de-energized, thus greatly reducing the risk of injury, not that the situation was altogether safe. In that way, *708appellants argue, emergency personnel could have made their own informed decision whether to extricate the decedent, and they allege that at least one of the emergency personnel was prepared to do so. To the contrary, UE maintains that Missouri law has never recognized a duty to provide information enabling emergency personnel to approach downed power lines before standard safeguards have been implemented.

Of course, in order for a plaintiff to make a submissible case of negligence, a plaintiff must establish that there was a duty and that the breach of that duty was the proximate cause of his injury. Martin v. City of Washington, 848 S.W.2d 487, 493 (Mo. banc 1993). “Whether a duty exists is purely a question of law.” Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000). “The judicial determination of the existence of duty rest on sound public policy.” Hoover’s Dairy, Inc. v. Mid-America Dairymen, Inc., 700 S.W.2d 426, 431 (Mo. banc 1985). In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it and the consequences of placing that burden on defendant. Gunnett v. Girardier Bldg. and Realty Co., 70 S.W.3d 632, 639 (Mo.App.2002); Benoit v. Missouri Highway and Transp. Com’n, 33 S.W.3d 663, 668 (Mo.App.2000).

At the outset, it must be made clear that appellants do not criticize UE’s computerized system for de-energizing the power lines, nor its operation in this instance; nor do they criticize the timeliness with which UE personnel arrived at the scene and removed the power line. Instead, they seek to impose a duty on UE to inform rescue workers that the risk of harm was very low should they, themselves, come in contact with the power line, with the expectation that the rescue workers would act to save the victim despite the risk.

This argument, however, disregards the fact that the risk of harm, though greatly reduced, was still so significant that UE, as noted, directed its employees to avoid contact with downed power lines unless the lines have been “isolated and grounded.” These are procedures that require specialized tools and training, as well as adequate time for implementation. In fact, these same or similar safety procedures are required under government and industry standards. For instance, Occupational Safety and Health Administration (OSHA) regulations mandate that employees must treat power lines that have been de-energized, but not “locked out or tagged,” as “energized parts.” 29 CFR 1910.333(b)(1). OSHA regulations also prohibit employees from working on exposed de-energized parts before a qualified worker has used “test equipment to ... verify that the circuit elements and equipment parts are de-energized,” 29 CFR 1910.333(b)(2)(iv)(B); or from working near de-energized overhead lines before they have been grounded or otherwise secured, 29 CFR 1910.333(c)(3). In much the same way, section 420-D of the National Electrical Safety Code states: “Employees shall consider electric supply equipment and lines to be energized unless they are positively known to be de-ener-gized.” Even appellants’ expert testified that UE’s standards are consistent with industry practice and that the standards are in place because it is possible for a power line to become re-energized.

According to the uncontradicted evidence, a line may re-energize because of an equipment malfunction, or a lightning strike, or a “crossing line” down the road that falls on a previously de-energized line, *709or even because of a customer’s back-up generator that has come on line in response to a power outage and “backfeeds” through the downed line. As UE’s regional dispatcher put it, there was one instance in which a line had been re-energized and “just burned a couple of guys and one of them happened to be a good friend of mine, so I know that it happens.”

The possibility that a line will re-energize, though quantitatively “very remote” as appellants’ expert described it, carries with it, of course, a qualitative risk not simply of injury, but of death. To be sure, the UE standards, government standards, and industry standards were promulgated to address that very concern. Ultimately, that is the reason why the concept of duty should not be extended to the situation at hand. If, according to these public policy-based standards, it was unsafe for UE’s trained employees to remove a downed power line even though the line was de-energized, then UE should have no duty to inform emergency personnel otherwise.

The dissent rightly stresses the societal interest in preserving human life. However, the dissent conveniently ignores the fact that OSHA regulations, industry standards and UE’s standards were all designed to protect human life from the danger presented by electricity in these very circumstances. Accordingly, the law has recognized the interest in preserving human life and, with that interest in mind, does not require UE to put more lives in danger by giving emergency personnel a reason to approach a downed power line.

Finally, the fact that the UE construction supervisor who, as the first UE employee on the scene, safely removed the line, has no bearing on the duty analysis. Suffice it to say that he was fully aware of the company standards and the risk involved, and by his own testimony, he simply disregarded them.

In conclusion, this Court holds that UE had no duty to inform emergency personnel that the power line was de-energized. The judgment is affirmed.

WOLFF, C.J., STITH, PRICE and RUSSELL, JJ., concur. WHITE, J., dissents in separate opinion filed; TEITELMAN, J., concurs in opinion of WHITE, J.