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Hoffman v. Union Electric Co.11/22/2005
hough 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.
Dissenting Opinion by Judge White:
I respectfully dissent. "In the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists." "For purposes of determining whether a duty exists, this Court has defined foreseeability as the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it."
The risks to human life when engaging in the inherently dangerous activity of transmitting electrical power are readily discernable. Indeed, this Court has already held that when a utility company has actual notice that any of its wires have become dangerous, that the company must exercise the highest degree of care and has a duty to repair any break in the line or shut off the electricity within a few short minutes.
UE's power lines run adjacent to the roadway and it is an unquestionably foreseeable risk that a motor vehicle accident may down a utility pole and that the vehicle's occupants and first-responders to the accident would be confronted with the risk of electrical injury. It is equally foreseeable that first-responders, when faced with downed power lines in the zone of injury, would delay attending to the victims until informed of the status of the lines. It is also foreseeable that this delayed treatment could subject the victims to further injury or death. By definition, UE had a duty to inform.
The legal file reveals that the first-responders to Ms. Hoffman's accident stood at bay between 35 and 47 minutes of their arrival, waiting for UE personnel to attend to a dead power line. UE knew the line was not conducting electricity two minutes prior to the arrival of the first-responders. UE knew that the line could be re-energized under certain circumstances, extremely rare circumstances by their own admission. UE elected to retain the information it exclusively possessed rendering the first-responders powerless to make an informed decision on intervening.
Between the parties' pleadings the
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