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Grattan v. Union Electric Company12/9/2003
eeability analysis, because the history of actual accidents at this location created a fact question on the utility's actual or constructive knowledge of the probability of the accident. Second, as a matter of law, "common knowledge" that vehicles run off the pavement and fail to negotiate curves does not establish sufficient probability that such an event will happen at any particular location. A vehicle running off the road at any particular place is considered unusual and extraordinary and not reasonably foreseeable. Dowell v. City of Hannibal, 210 S.W.2d 4, 5-6 (Mo. 1948). There is no probability that a vehicle would run off the road at a particular spot of such "sufficient moment" that would make that event reasonably foreseeable. See Lopez, 26 S.W.3d at 156.
To establish "foreseeability, a defendant must be shown to have actual or constructive knowledge that there is some probability of injury such that an ordinary person would take precaution to avoid it." Chemical Design v. American Standard, 847 S.W.2d 488, 490 (Mo.App. 1993). In this case there was no evidence that the pole, which had been erected in 1963 or 1964, had even been hit and there was no basis for defendant to be charged with actual or constructive knowledge that there was a probability of injury.
Plaintiffs also argue that there was a genuine issue of material fact on the question of whether plaintiff timely discontinued or de-energized the electric current in its downed power lines. Because this was not set out as a controverted fact issue in the trial court in the manner required by Rule 74.04(c)(2), we may not consider it. See Peck v. Alliance General Ins. Co., 998 S.W.2d 71, 75-76 (Mo.App. 1999) (construing similar requirements under a prior version of 74.04); Wichita Falls Production Credit Ass'n v. Dismang, 78 S.W.3d 812, 815 (Mo.App. 2002).
In any event, on the facts in this summary judgment record, defendant had no duty as a matter of law. There was no allegation in the summary judgment record that defendant became aware of the fallen line prior to plaintiff's automobile's contact with the downed wires. See First Electric Cooperative Corp. v. Pinson, 642 S.W.2d 301, 303 (Ark. 1982). The cases on which plaintiffs rely, Calderone v. St. Joseph Light & Power Co., 557 S.W.2d 658 (Mo.App. 1977) and Kidd v. Kansas City Light & Power Co. , 239 S.W. 584 (Mo. App. 1922), do not support plaintiffs' argument that defendant had a duty "to timely discontinue or deenergize the electric current to the downed power lines." In each case, the utility had actual notice that the line had fallen but failed to take appropriate action. Kidd, 239 S.W.2d at 585; Calderone, 557 S.W.2d at 663. See also Baker, 24 S.W.3d at 261.
All of plaintiffs' damages were caused by an off-road vehicle collision with a utility pole, which event is not reasonably foreseeable in the absence of special circumstances. Because, as a matter of law, the collision with the pole and the subsequent fall of the lines were not reasonably foreseeable, defendant neither owed nor breached any duty to plaintiffs.
The trial court did not err in entering summary judgment in defendant's favor. Point one is denied.
The judgment of the trial court is affirmed.
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