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Roberson v. Louisville Gas and Electric Co.2/11/2005
VACATING AND REMANDING
Jonathon Roberson appeals from a summary judgment of the Jefferson Circuit Court which dismissed his negligence claim against the appellee, Louisville Gas and Electric Company (LG&E). Roberson argues that the trial court erred as a matter of law in concluding that LG&E "did not have a duty to repair and maintain street lamps in order to prevent accidents involving third parties." (Opinion and Order of October 23, 2003, p. 1.) We agree that the trial court erred in dismissing Roberson's lawsuit. Thus, we vacate and remand.
On the evening of February 23, 2001, Roberson's ten-year-old son, Shytone Roberson, was struck by a motor vehicle as he attempted to cross Preston Highway near its intersection with Miles Lane in Jefferson County. The child died as a result of the injuries sustained in the accident. Neither the driver of the vehicle, Tammy Triplett, nor her passenger, saw the child before the car ran over him. They only realized what had happened by the sound made by the impact. The police report described the area where the accident occurred as "dark" and the highway as "not lighted."
On November 13, 2001, Roberson filed a complaint seeking damages from LG&E for the wrongful death of his son. He contended that the street light near the intersection was not working on the night of the accident and that LG&E was "negligent and careless in maintaining and/or servicing" the light, and that that negligence resulted in his son's death.
In answers to interrogatories, LG&E acknowledged that it owned the street light, that the light was leased to Jefferson County Fiscal Court, and that LG&E was responsible for maintaining the street light under its agreement with the county. LG&E also revealed that it has no formal or written policies or procedures for monitoring street lights, relying solely on the public to provide notice as to which lights are in need of repair. LG&E had not received any notice that the street light near the accident scene was not illuminated.
In seeking the summary dismissal of Roberson's complaint, LG&E convinced the trial court that it owed no duty to the public -- including the decedent -- either to monitor or to maintain the street light near the accident. In its final order granting the summary judgment, the court agreed, reasoning as follows:
A "basic element of action of negligence is the breach of a legal duty. Without such a duty, there can be no recovery." Comm., Transp. Cabinet, Bureau of Highways v. Roof, Ky., 913 S.W.2d 322, 324 (1996). Other jurisdictions have ruled a public utility does not have a common law duty to repair and maintain streetlights. Sinclair v. Dunagan, 905 F.Supp. 208 (D.N.J., 1995); Vaughan v. Eastern Edison Co., 719 N.E.2d 520, (Mass.App.Ct.1999); Martinez v. Florida Power & Light Co., 785 So.2d 1251 (Fla.Dist.Ct.App.2001). However, the issue is one of first impression for this Court.
A duty may be imposed by statute, by contract or by the common law. Kentucky law does not impose a statutory duty to repair or maintain street lamps. There is no duty imposed by contract in this case.
Under common law, a power company's duty of repair and maintenance pertains only to electricity as a dangerous instrumentality. [Quotation omitted.]
Although the court has ruled a power company owes a duty to inspect and maintain electric lines, considering them as dangerous instrumentalities, there is no duty recognized under common law with regard to repair and maintenance of the non-dangerous instrumentality of a street lamp.
On appeal, Roberson contends that the court erred in con
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