Valcaniant v. Detroit Edison Co.

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. Relying on Groncki v

1
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.

In 1974, plaintiff purchased a four-acre gravel lot in

Imlay City; in 1987, he opened a used car business. At all

times, uninsulated power lines owned by Edison existed

along the back property line. 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Unpublished opinion per curiam, issued February 19,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).

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 sensor, Edison can avoid unnecessary

interruptions of its customers’ service that would be

caused by faults occasioned by a power line’s 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.

Plaintiff and his wife sued Edison, alleging that the

company was liable in tort.3 Edison moved for summary

disposition, arguing that it owed no legal duty to

plaintiff. Plaintiff opposed the motion by arguing that

Edison owed it a legal duty to de-energize the severed

3
They also sued the contractor who operated the dump
truck. That party was later dismissed by stipulation.

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 granted plaintiff’s application for leave to

appeal. 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”).

of injury, closeness of connection between the conduct and

injury, moral blame attached to the conduct, policy of

preventing future harm, and . . . the burdens and

consequences of imposing a duty and the resulting liability

for breach.” Buczkowski v McKay, 441 Mich 96, 101 n 4; 490

NW2d 330 (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. That case consolidated three

lawsuits brought against 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

(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 against

imposing a legal duty under the circumstances. Id. at 661.7

Similar considerations are implicated in this case.

However, we need not reach the balancing required by

Buczkowski. See Buczkowski, supra at 101 (“Other

considerations may be, and usually are, more important

[than foreseeability].”). The circumstances surrounding

plaintiff’s injury fail to satisfy even the lowest

threshold requirement—that the harm incurred was

foreseeable. 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.

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 twenty-

five 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 imposition of a legal duty where harm is

foreseeable. See Buczkowski, supra at 102.8

We 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.

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 Justice Levin recognized in Groncki v Detroit

Edison Co,1 this Court continues to confuse duty and

proximate causation with respect to electric utility

companies. 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 to a tort:

duty, breach, causation, and damages. 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. Murdock v

Higgins, 454 Mich 46, 53; 559 NW2d 639 (1997). In a

controversy among strangers who lack a special

relationship, the trier of fact must decide whether the

defendant breached its duty to exercise reasonable care for

the safety of others.

The element of causation addresses whether a

defendant’s breach of its duty caused the plaintiff’s

injury. Causation has two components. 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. A

defendant’s breach of duty is said to have proximately

caused a plaintiff’s injury only where 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 principles that liability should be limited in a

practical manner and should comport with notions of

justice. Dobbs, § 181, p 446. Proximate cause is a

question of law. Moning at 440.

The effect of foreseeability on duty and proximate

cause confounded Judges Cardozo and Andrews in the famous

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 OWE THE PUBLIC 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 Dep’t of Labor, 2002 Census of Fatal

Occupational Injuries (Charts), (accessed May 3, 2004). Heavy

equipment that reaches great heights is routinely operated

in modern society. Thus, under the appropriate negligence

analysis, electric utilities owe a duty to the general

2
248 NY 339; 162 NE 99 (1928).

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 until the cause of the fault can be

determined. 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

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. Thus,

defendant owed plaintiffs a duty to 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 to

protect it from accidental contact with their lines. 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.

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). See also 2 Restatement Torts, 2d,

§ 295A, illus 2. There, the owners of a tugboat failed to

furnish emergency radios to their crew, because such radios

were not standard equipment in the industry. The federal

appeals court held that reliance on 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, the question

becomes whether it breached its duty. 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

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 of the ground below; (4) had the lines been

placed underground, they could have 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 service can endanger lives in such ways as

disabling medical devices and traffic signals; (8) the

lines and equipment were in good repair.

Considering today’s limitations on maintaining a

reliable electrical system, no reasonable juror could

disagree that defendant met its duty. Therefore, on the

basis of facts and reasoning not given in the opinion per

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. Defendant must fulfill its duty to protect the

public 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. I

would affirm the decision of the Court of Appeals and

direct an order entering summary disposition for defendant.

Marilyn Kelly