Utilities--electricity--uninsulated power line--not negligent
The trial court properly granted defendant's motion for summary judgment in an action
arising from the electrocution and injury of plaintiff and decedent while working on a ladder
which came into contact with an uninsulated power line at a construction site. The power lines
were plainly visible, conformed to the National Electrical Safety Code, were 21.9 feet away
from the house and 25.6 feet above the ground, and plaintiffs did not allege that in the ordinary
course of their work they were required to maneuver the ladder in close contact with the power
lines, so that defendant was not required to foresee that plaintiffs would permit the ladder to
come into contact with the power lines. Mere notice of construction is not enough to warrant
additional measures by defendant.
Appeal by plaintiffs from judgments entered 2 March 1998 by
Judge D. Jack Hooks, Jr. in Brunswick County Superior Court.
Heard in the Court of Appeals 18 February 1999.
Hedrick & Blackwell, L.L.P., by P. Scott Hedrick; and Hearn,
Brittain & Martin, P.A., by L. Morgan Martin and George M.
Hearn, Jr., for plaintiffs-appellants.
Johnson & Lambeth, by Robert White Johnson, for defendant-
appellee.
WALKER, Judge.
On 9 November 1994, Bobby Lee Sweat (“plaintiff”) and James
Francum Braswell (“decedent”) were installing vinyl siding on a
house under construction located on East Second Street in Ocean
Isle Beach, North Carolina. The house being constructed was over
30 feet in height and had been under construction since July of
1994. Plaintiff and decedent were using a forty-foot aluminum
extension ladder to work on a window located approximately 30
feet above the ground facing East Second Street.
Defendant's electrical distribution lines were on poles and
ran along the street. The lines were 21.9 feet north of thehouse horizontally and 25.6 feet above the ground. The base of
the ladder was between the building and the distribution lines
and approximately 13 feet from directly below the lines.
Plaintiff and decedent were found electrocuted at the base
of the ladder. There were no witnesses to this accident. The
plaintiff testified that the last thing he remembered was being
in the process of climbing down the ladder after he finished his
work. The power line, which the ladder struck, was not insulated
and as a result of the contact, decedent was killed and plaintiff
was seriously injured. The power line conformed to the National
Electrical Safety Code (NESC) in all respects.
In his deposition, plaintiff admits that he was aware of the
power lines, but that he was not concerned since he believed the
lines were insulated. During the construction of the house and
on the day of the accident, defendant's employees drove by the
construction site at least twice a day in order to get to a job
installing street lights.
On 29 August 1996, plaintiff filed a complaint for personal
injuries. On 23 October 1995, the decedent's wife, acting as the
personal representative of his estate, filed a wrongful death
action.
Defendant moved for summary judgment in both cases and the
trial court, with the agreement of the parties, consolidated the
cases. On 2 March 1998, the trial court entered orders granting
summary judgment for defendant finding “that there are no genuine
issues of material fact and Defendant is entitled to judgment as
a matter of law.” On appeal, plaintiffs contend the trial court
erred in granting summary judgment.
A motion for summary judgment “is proper if the pleadings,
depositions, answers to interrogatories, and admissions on file,together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that any party is
entitled to judgment as a matter of law.” Thompson v. Three Guy
Furniture Co., 122 N.C. App. 340, 344, 469 S.E.2d 583, 585
(1996)(quoting N.C. Gen. Stat. § 1A-1, Rule 56(c)). The party
moving for summary judgment bears the burden of proving the lack
of a triable issue of fact. Collingwood v. G.E. Real Estate
Equities, 324 N.C. 63, 66, 376 S.E.2d 425, 427 (1989). The
evidence is viewed in the light most favorable to the nonmoving
party. Davis v. Town of Southern Pines, 116 N.C. App. 663, 666,
449 S.E.2d 240, 242 (1994), disc. review denied, 339 N.C. 737,
454 S.E.2d 648 (1995).
Plaintiffs argue that defendant breached its duty of care
owed to them by its installation, operation, and maintenance of
an uninsulated 7,200 volt power line and that, as a result,
defendant proximately caused plaintiffs' injuries and death.
More specifically, based on their expert's opinion, plaintiffs
contend that defendant failed to insulate or de-energize the
power line or failed to post appropriate warnings.
Negligence is the failure to exercise the degree of care
that a reasonably prudent person would exercise in the same
circumstances. Bogle v. Power Co., 27 N.C. App. 318, 321, 219
S.E.2d 308, 310 (1975), disc. review denied, 289 N.C. 296, 222
S.E.2d 695 (1976). In order to sustain a claim for negligence, a
plaintiff must prove (1) the defendant owed a duty to the
plaintiff; (2) the defendant failed to exercise proper care in
the performance of the duty; and (3) the breach of the duty was a
proximate cause of the injury suffered by the plaintiff.
Westbrook v. Cobb, 105 N.C. App. 64, 67, 411 S.E.2d 651, 653
(1992). The absence of any one of these elements will defeat anegligence claim. Id.
A supplier of electricity owes the highest degree of care to
the public because of the dangerous nature of electricity. Hale
v. Power Co., 40 N.C. App. 202, 204, 252 S.E.2d 265, 267, disc.
review denied, 297 N.C. 452, 256 S.E.2d 805 (1979). An electric
company is required “to exercise reasonable care in the
construction and maintenance of their lines when positioned where
they are likely to come in contact with the public.” Bogle, 27
N.C. App. at 321, 219 S.E.2d at 310. However, “the duty of
providing insulation should be limited to those points or places
where there is reason to apprehend that persons may come in
contact with the wires. . . .” Mintz v. Murphy, 235 N.C. 304,
314, 69 S.E.2d 849, 857 (1952). Also, this Court has held that
an electrical utility has exercised reasonable care when it has
insulated its power lines “by height and isolation in accordance
with existing regulations.” Bogle, 27 N.C. App. at 321, 219
S.E.2d at 310. In Bogle, the plaintiff was killed when he
attempted to move an extension ladder after it struck a power
line. Id. at 320, 219 S.E.2d at 310. The defendant was found to
have exercised reasonable care where the power line was located
21 feet from the building in which the plaintiff was working with
an extension ladder and suspended from a pole at a height of 22
feet. Id. at 320-22, 219 S.E.2d at 310. Similarly, in Brown v.
Power Co., 45 N.C. App. 384, 386-88, 263 S.E.2d 366, 368-69,
disc. review denied, 300 N.C. 194, 269 S.E.2d 615 (1980), the
plaintiff was killed when the antenna he was installing struck
power lines. This Court held that the defendant exercised
reasonable care and did not breach any duty in its operation of
the power lines which were located 12 to 14 feet away from the
house and the closest distance from the ground to the lines was22 feet, 2 inches. Id.
Plaintiffs argue that their case is analogous to the
situation in Williams v. Power & Light Co., 296 N.C. 400, 250
S.E.2d 255 (1979). In Williams, the plaintiff was hired to
repair a piece of guttering that had come loose from the roof of
a house. Id. at 401, 250 S.E.2d at 256. The plaintiff noticed
two electrical wires running near the roof of the house. Id. at
401, 250 S.E.2d at 257. After the plaintiff finished repairing
the gutter, but before he and his helper started taking down an
extension ladder they used in the repair, the plaintiff was
knocked unconscious evidently as a result of the ladder hitting
electrical wires. Id. The Supreme Court reversed the granting
of summary judgment for defendant because it found there was a
genuine issue of material fact relating to the defendant's duty
to insulate the wires since there was a discrepancy in the
parties' evidence as to the actual distance between the wires and
the roof. Id. at 402-03, 250 S.E.2d at 257.
The plaintiffs also allege that even if defendant complied
with the NESC, the NESC does not control whether defendant
violated its standard of care. Plaintiffs cite Willis v. Power
Co., 42 N.C. App. 582, 592, 257 S.E.2d 471 (1979) where this
Court held that even though defendant met the NESC requirements
as to line insulation and clearance, the defendant may still have
breached its duty of care to the plaintiff. In Willis and in
Hale, 40 N.C. App. at 203, 252 S.E.2d at 266, both plaintiffs
were electrocuted at the same location when their ladder came in
contact with power lines. In both cases, this Court reversed
summary judgment for the defendant, finding there was an issue of
fact as to the defendant's negligence where the two high voltage,
uninsulated power lines were only 3 feet 10 inches from the sideof the house and 22.7 feet above the ground. Willis, 42 N.C.
App. at 592-96, 257 S.E.2d at 478-80; Hale, 40 N.C. App. at 203-
04, 252 S.E.2d at 267. Further, plaintiff alleged these power
lines were obscured by trees and shrubbery. Willis, 42 N.C. App.
at 594, 257 S.E.2d at 479; Hale, 40 N.C. App. at 205, 252 S.E.2d
at 268.
Here, the power lines were plainly visible, conformed to the
NESC, and were 21.9 feet away from the house and 25.6 feet above
the ground. There was no evidence that the plaintiffs in
navigating, positioning, and utilizing the ladder were required
to come in close contact with the power line as was the situation
in Hale and Willis. In Brown, 45 N.C. App. at 389, 263 S.E.2d at
370, this Court held that the defendant was not required “to
foresee that some person may hold a metal antenna in the air in
such a way as to come in contact with the high voltage wires.”
Also, we held in Bogle, 27 N.C. App. at 322, 219 S.E.2d at 310,
that the defendant was required to exercise reasonable care “to
provide for those eventualities which a reasonably prudent person
would have foreseen under the circumstances” and that it was
“unreasonable to call on the defendant to foresee that
plaintiff's intestate would ignore the warnings of his
supervisors and cause a metal ladder to fall against the line.”
The plaintiffs in this case do not allege that in the
ordinary course of their work, they were required to maneuver the
ladder in close contact with the power lines. Thus, defendant
was not required to foresee that plaintiffs, for unexplained
reasons, would permit the ladder to come in contact with the
power lines located at a distance of 21.9 feet away from the
house and 25.6 feet above the ground.
In addition, plaintiffs argue that since the defendant hadnotice that there was construction in progress at the site, they
had a duty to warn plaintiffs of a potential danger and/or
temporarily insulate the power lines. Further, plaintiffs
contend that defendant's employees were trained to spot
dangerous situations around power lines and to take measures,
which might include warnings or temporary insulation, to protect
the public. However, plaintiffs have presented no evidence to
show that mere notice of construction is enough to warrant that
these additional measures be required by the defendant. Since
this Court has held that an electrical utility did not breach any
duty of care where its power lines were at similar distances away
from the structure and above the ground, we likewise conclude
that defendant's lines were properly insulated by height and
isolation such that no additional duty to the plaintiffs existed
on the part of defendant. See Mintz, 235 N.C. at 314, 69 S.E.2d
at 857.
Therefore, we find the defendant exercised reasonable care
in the operation of its power lines and did not breach any duty
of care owed to the plaintiffs. Since there is no genuine issue
of material fact, the trial court properly granted defendant's
motion for summary judgment.
Affirmed.
Judges JOHN and MCGEE concur.
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