BRICKLEY, Chief Justice.
These cases were combined for review because they all concern allegations of negligence on the part of a power company resulting in harmful contact with uninsulated overhead power lines. Each of the cases against Detroit Edison was decided on summary disposition regarding the issue of duty. This Court reviews summary judgments de novo and must review the entire record to see if the defendant was entitled to summary disposition. Adkins v. Thomas Solvent Co., 440 Mich. 293, 302, 487 N.W.2d 715 (1992). The existence of a legal duty is a question of law for the Court to decide. Trager v. Thor, 445 Mich. 95, 516 N.W.2d 69 (1994).
Also before the Court is Barbara Bohnert's suit against defendant Carrington Homes, Inc. This suit alleges that Carrington is also liable for the electrocution death of her husband under Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974). This case was also decided by a grant of summary judgment for the defendant, which was reversed by the Court of Appeals. Therefore, the standard of review is also de novo. The issues relating to Carrington will be discussed separately from those concerning Edison.
A. Parcher v. Detroit Edison
The defendant was granted summary disposition on December 23, 1992. This decision was affirmed by the Court of Appeals on January 24, 1995. In its opinion, the Court of Appeals found that the accident was not legally foreseeable and therefore, the defendant owed the plaintiff no legal duty. 209 Mich.App. 495, 531 N.W.2d 724 (1995).
B. Groncki v. Detroit Edison
Gerald Groncki was a maintenance supervisor at a condominium complex and was injured when a ladder that he was moving came into contact with an uninsulated overhead electrical line. As a result, the plaintiff went into cardiac arrest and suffered burns of his left foot. He remained in the hospital for approximately ten days and a toe on his left foot was amputated. Mr. Groncki also alleges that various cognitive difficulties and personality changes resulted from his injuries. Mr. Groncki's wife has also filed a loss of consortium claim.
On the day of the accident, Mr. Groncki was working on the roof of a condominium with another employee. The men were using a twenty-four-foot aluminum ladder to gain access to the roof. Mr. Groncki had warned the other worker about the danger of working near the power lines. After the other employee left to work in a different area, Mr. Groncki attempted to move the ladder by himself. Unfortunately, he lost control of the ladder, which fell onto the power lines. The power lines were twenty-one feet high
Edison was awarded summary disposition by the circuit court on May 27, 1992. The Court of Appeals reversed this decision on December 27, 1994. The Court of Appeals determined that it was foreseable that someone using an aluminum ladder could be injured by the power lines. This ruling is now appealed by the defendant to this Court.
C. Bohnert v. Detroit Edison
This case concerns the fatal electrocution of Wendell Bohnert on October 10, 1989, at a home construction site.
The plaintiff, Mr. Bohnert's wife, alleges that Edison was negligent in failing to insulate, relocate, or de-energize the wires, and in failing to warn her husband of their presence. Mrs. Bohnert also alleges that Carrington, a licensed general contractor, is liable as a general contractor under this Court's decision in Funk. Carrington disputes this and claims to have been one of many subcontractors performing work on a "cost plus" basis. Carrington argues that it only performed construction as requested by the homeowners, who were their own general contractors. However, a local ordinance requires a licensed general contractor to manage the construction. Furthermore, Mr. Dick, the president of Carrington, gave deposition testimony that Carrington was the general contractor. Further, Carrington claimed to have been the general contractor during oral argument before the circuit court.
Both Edison and Carrington were awarded summary disposition in circuit court. However, these decisions were reversed by the Court of Appeals in an unpublished per curiam opinion. The Court of Appeals found that there was a question of fact regarding whether the injury was foreseeable by Edison and whether the site was a common work area under the authority of Carrington. Both defendants Edison and Carrington appeal this ruling.
II. Claims Asserted Against Detroit Edison
A. Statement of Law Applicable to Each Plaintiff
The scope of the duty owed by electrical companies to move, insulate or de-energize overhead power lines is a question of foreseeability. Schultz v. Consumers Power Co., 443 Mich. 445, 452, 506 N.W.2d 175 (1993). Utility companies, particularly electric companies, are charged with a duty to protect against foreseeable harm. Id.
In Dees v. L.F. Largess, 1 Mich.App. 421, 136 N.W.2d 715 (1965), the plaintiff was electrocuted when a crane came into contact with overhead power lines owned by Detroit Edison. The plaintiff, a construction worker, was holding a hook hanging from a crane when the crane's cable contacted a power line. The Court of Appeals upheld a directed verdict for Detroit Edison. The Court found that Detroit Edison was not negligent in failing to anticipate that a skilled workman, with full knowledge of the wires, would come into contact with these wires through the cable of a crane. Id. at 427, 136 N.W.2d 715.
In Koehler v. Detroit Edison, Co., 383 Mich. 224, 174 N.W.2d 827 (1970), the plaintiff was killed while riding on the arm of a crane as part of his employment at a construction site, when the crane's arm came into contact with overhead electrical cables. This Court upheld the trial court's determination that the electrical company owed no duty to the plaintiff, despite its knowledge of the construction. Id. at 231, 174 N.W.2d 827. In reaching this conclusion, this Court stated:
Thus, because Detroit Edison could not anticipate that cranes on construction sites would contact its power lines, it owed no duty to that plaintiff.
The Court of Appeals revisited the issue in Ransford v. Detroit Edison Co., 124 Mich.App. 537, 335 N.W.2d 211 (1983). In that case two men were electrocuted, and the plaintiff's decedent killed, when the wire-guided model planes they were flying crashed into electrical wires. Id. at 541-542, 335 N.W.2d 211. The Court found that there was no duty on the part of the power company because the occurrence was completely unforeseeable. Id. at 546, 335 N.W.2d 211. Rather, it stated that liability could not be based on such purely fortuitous circumstances. Id. Further, the Court explained that the issue of foreseeability should be determined at the time the lines were installed. Id.
This Court last spoke on this issue in Schultz v. Consumers Power Co., supra. That case involved the death of a homeowner when a ladder that he was holding came into contact, either directly or through an electric arch, with a power line. The electric line had been placed 15-1/2 feet away from the preexisting house. At the time of the accident, the line was frayed and pitted. In finding a duty, this Court noted that electrical companies occupy a special role as providers of an essential, yet extremely dangerous commodity. Id. at 450-451, 506 N.W.2d 175. This special relationship with the public was found to impose a duty upon electrical companies to "reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects." Id. at 451, 506 N.W.2d 175. The Court also formulated a test to determine when this duty existed in a particular case:
The Court determined that an accident involving a homeowner was foreseeable, given the location and disrepair of the power line.
The plaintiffs in Parcher and Bohnert also allege that Edison owed a duty to
1. Parcher v. Detroit Edison
The Court of Appeals correctly found that no duty arose on the part of Edison to protect Mr. Parcher. This case is closely analogous to Dees and Koehler. Edison, like the defendant in Dees, could not have reasonably foreseen that a skilled workman, with full knowledge of the power lines, would bring a crane into contact with those power lines. As in Koehler, Edison knew that there was ongoing construction, but had no reason to know that any high profile machinery would be used near its power lines. Therefore, under Dees and Koehler, Edison did not owe a duty to Mr. Parcher.
Similarly, the circumstances of Mr. Parcher's accident are fortuitous. The forklift Mr. Parcher was driving only came into contact with the wire because Mr. Parcher was transporting an uncollapsed scaffold while reversing around a pile of debris. Edison could not have reasonably foreseen that a worker would reverse around a pile of debris and bring a twenty-nine-foot high uncollapsed scaffold into contact with its electric wire. Thus, summary disposition was appropriate because these events were not foreseeable, and, therefore, no duty arose. Ransford.
Further, this was not a poorly maintained wire that had been placed close to a home as in Schultz. Rather, this wire was on a commercial construction site and was sixty-seven feet from the building at a height of thirty-five feet. Not only is there no evidence showing that this wire was not adequately maintained, but the distance from the building is sufficient to make this accident unforeseeable. Thus, Schultz is easily distinguishable from this case.
Finally, Edison did not owe Mr. Parcher a duty to warn. Mr. Parcher's contact with the wire was clearly unforeseeable, and, thus, no duty to warn arose. Further, Mr. Parcher had been warned about the wires by supervisors on the job site. Thus, Mr. Parcher was fully aware of the presence of the wires. Edison owed no duty to warn about a known danger. Wilhelm, Bullock, supra.
2. Groncki v. Detroit Edison
Mr. Groncki alleges that Edison owed him a duty to: inspect, repair, and insulate the power lines; place the lines in a safe location; and erect safety barriers around them. Similar to the allegations of Mr. Parcher, Mr. Groncki's claim rests on the question of foreseeability. The Court of Appeals reversed the trial court's grant of summary judgment, finding that Edision owed a duty to Mr. Groncki. We disagree and restore the award of summary disposition for Edison.
Mr. Groncki bases his claim on Schultz's language that a power company owes a duty on the basis of "the probability that injury might result from any reasonable activity done on the premises for business, work or pleasure." Schultz at 452, 506 N.W.2d 175. Mr. Groncki claims that he was engaged in reasonable activity while repairing the roof of the condominium and, therefore, was owed a duty by Edison. However, there are several facts that distinguish this case from Schultz. In Schultz, the probability of injury was based upon a frayed line that had been placed next to a preexisting structure. Further, the plaintiff in Schultz was a homeowner making repairs to his own home. In this case, there is no evidence suggesting
3. Bohnert v. Detroit Edison
The Court of Appeals erred in overturning the grant of summary disposition on Mrs. Bohnert's claim against Edison. Mr. Bohnert's injury was not foreseeable to Edison. Therefore, Edison owed no duty to warn Mr. Bohnert or to move, insulate, or de-energize the power lines. As in Dees, Mr. Bohnert was a skilled and experienced workman with years of experience. Indeed, Mr. Bohnert had been delivering masonry supplies for forty years. Further, Mr. Bohnert had knowledge of the dangers of operating the boom on his truck near power lines. Indeed, there was a warning against such operation only a few inches above the boom's controls. Simply put, it was not foreseeable to Edison that an experienced, skilled workman would disregard clear instructions and operate his delivery vehicle directly beneath power lines. Thus, no duty arose on the part of Edison to plaintiff.
Further, Edison had not been notified that any type of machinery would be operating at that location on that day. It clearly had no knowledge that a large delivery truck equipped with a boom would be operated directly beneath its lines. While Edison did know that a house was being built at that location and could reasonably expect that machinery would be used, this degree of knowledge was found insufficient to create a duty in Koehler. Plaintiff's argument that the driveway was the only place where such material could be delivered does not change this conclusion. Edison cannot be expected to know all probable delivery locations on any given construction site. Rather, it can reasonably expect that trained workmen will not operate delivery vehicles directly under power lines or, if such operation is required, will properly inform Edison.
The mere location of the power line does not impose a duty on Edison. While this line was closer than that in Schultz, there are significant factors that distinguish this case. First, there is no evidence that the power line in this case was in disrepair. In Schultz, the wire was pitted and frayed and susceptible to arching. Secondly, the power line had been placed in its location by Edison before the commencement of construction. In Schultz, the power company had placed the line dangerously close to a preexisting house. Indeed, Edison had informed the homeowners in this case of the danger of building too close to power lines, and had convinced them to move the structure several feet to achieve additional clearance. These factors weign in favor of not imposing a duty on Edison.
C. Public Policy Considerations
Public policy also mitigates against the imposition of a duty in these cases. Sound public policy is a factor in deciding duty. Sizemore v. Smock, 430 Mich. 283, 293, 422 N.W.2d 666 (1988); Antcliff v. State Employees Credit Union, 414 Mich. 624, 630-631, 327 N.W.2d 814 (1982), see also Prosser & Keeton, Torts (5th ed), § 53, p 358. As this Court has recognized, "Social policy must intervene at some point to limit the extent of one's liability." Sizemore at 293, 422 N.W.2d 666. Further, these plaintiffs contend that the duty to inspect and repair imposed by Schultz includes the duties to relocate, insulate, deenergize, warn, and erect safety barriers around power lines. Schultz at 455, 506 N.W.2d 175. Inasmuch as such a holding would expand
The social policy at issue is the public's need for electric power at a reasonable cost. To impose a duty to relocate, insulate, or de-energize power lines whenever third parties construct buildings near power lines would interfere with this policy. The costs of insulating or moving these lines would be significant. Edison alone has over 35,000 miles of power lines in this state. To impose the duty the plaintiffs request would certainly amount to a huge cost that would be passed on to the consuming public. Further, it may often be impossible for Edison and other power companies to move power lines away from new construction without moving them closer to preexisting structures. In any event, the costs of injuries such as those suffered by these plaintiffs will have to be met in another societal forum.
III. Bohnert v. Carrington Homes
The Court of Appeals correctly overturned the award of summary disposition for Carrington. The liability of Carrington is governed by Funk, supra. Funk involved an elevated work area shared by many subcontractors and created an exception to the general rule that a general contractor is not liable for the injuries of a subcontractor's employee.
Thus, for there to be liability under Funk, there must be: 1) a general contractor with supervisory and coordinating authority over the job site, 2) a common work area shared by the employees of more than one subcontractor, and 3) a readily observable and avoidable danger in that common work area, 4) that creates a high degree of risk to a significant number of workers.
Carrington seeks to avoid liability by arguing that it was not a general contractor with supervisory control over the work area. It claims merely to be one of many subcontractors hired by the homeowners. However, the president of Carrington stated in his deposition that Carrington was the general contractor. Furthermore, he admitted that he ordered the supplies Mr. Bohnert was delivering and normally supervised this type of delivery. Finally, Carrington took the position that it was the general contractor before the circuit court. Thus, considering these facts in the light most favorable to the nonmoving plaintiff, there is a genuine question of material fact with regard to whether Carrington was the general contractor and had supervisory and coordinating control over the work place.
Further, a question of fact exists regarding the presence of a common work area. In Erickson v. Pure Oil Corp., 72 Mich.App. 330, 249 N.W.2d 411 (1976), the Court of Appeals found that for a common work area to exist there must be an area where the employees of two or more subcontractors will eventually work. This holding was reaffirmed by the Court of Appeals in Phillips v. Mazda Motor Mfg., 204 Mich.App. 401, 408, 516 N.W.2d 502 (1994). Carrington argues that this rule unduly extends Funk, creating liability any time employees of different contractors will eventually work in the same location. The common work area, however, is only one element of Funk. The mere presence of a common work area, without supervisory control by the general contractor and a readily observable and avoidable risk to a significant number of workers, will not necessarily impose liability. Thus, Erickson was not an improper extension of Funk, but merely established the test for one of Funk's four elements.
However, there is a question of fact regarding whether employees of other subcontractors would be working in this area. The area in question appears to be the main driveway into the construction site. Mrs. Bohnert claims that this was used by all workmen on the project. Carrington simply asserts that Mr. Bohnert was the only person who worked in that area because he was the only person injured there. This dispute presents an unresolved factual question.
We also note that a factual question exists regarding the presence of a readily observable, avoidable risk to a significant number of workmen. Carrington argues that the line was in the plain view of Mr. Bohnert. Therefore, there is at least a question of fact with respect to whether it was observable to Carrington. The parties also dispute the feasibility of safety precautions that may have avoided any risk posed by the power line. Finally, there is a dispute about the number of employees exposed to any such risk. Mrs. Bohnert claims that most, if not all, the workers and their equipment passed along this driveway and directly beneath the power line. To support this claim, Mrs. Bohnert alleges that this driveway was the only feasible means of access to the construction site. Carrington asserts that this is not the case. Once again, this conflict demonstrates a question of fact that renders summary disposition inappropriate.
It is consistent to impose a duty for this accident on Carrington, but not on Edison. Edison could not foresee the accident because it was not informed that Mr. Bohnert would be operating a crane-like delivery truck beneath its wires. However, if Carrington is shown to have had sufficient control of the job site, it may have been aware of the likelihood of this accident. Further, when the elements of Funk are satisfied, a general contractor is presumed to have been able to foresee that readily observable and avoidable risks will lead to accidents and injuries. Thus, this accident may have been foreseeable with respect to Carrington, but not to Edison. However, at this juncture there are material questions of fact with respect to each of the elements of Funk. Thus, summary disposition was not proper and the Court of Appeals decision reversing the judgment of the trial court is correct.
Therefore, I would affirm the judgment of the Court of Appeals in Parcher, reverse in Groncki, and affirm in part and reverse in part in Bohnert. The claims against Edison should be dismissed, and Mrs. Bohnert's suit against Carrington remanded to the circuit court for further proceedings consistent with this opinion.
BOYLE, J., concurred only in the result.
MALLETT, Justice (concurring in part and dissenting in part).
I concur with the lead opinion's holdings in both Parcher v. Detroit Edison and Bohnert v. Detroit Edison. However, I disagree with the lead opinion's conclusion that Detroit Edison is not liable for the injuries in Groncki because it was not foreseeable that this plaintiff would come into harmful contact with the overhead power lines. I agree with the Court of Appeals holding reversing the grant of summary disposition in favor of the utility, and would remand to the trial court for further fact finding with regard to the general negligence claim. A more complete record from which to assess the liability of the utility in this case needs to be provided concerning the proximity of the wires to the building and to the ground. Groncki v. Detroit Edison Co, unpublished opinion per curiam, issued December 27, 1994 (Docket No. 153538), slip op at 1, 3. In holding that there is no duty in Groncki, the Court gives too narrow a reading to our holding in Schultz v. Consumers Power Co., 443 Mich. 445, 506 N.W.2d 175 (1993). Such restriction is inconsistent with basic principles of negligence law that the lead opinion fails to address.
"A negligence action may only be maintained if a legal duty exists which requires the defendant to conform to a particular standard of conduct in order to protect others against unreasonable risks of harm." Riddle v. McLouth Steel Products Corp., 440 Mich. 85, 96, 485 N.W.2d 676 (1992). In assessing whether to impose a duty courts must evaluate several factors, among which are the relationship of the parties, the foreseeability of harm, and the nature of the risk itself. Buczkowski v. McKay, 441 Mich. 96, 100, 490 N.W.2d 330 (1992). Whether a duty will be found to exist is a question of law for the court. Trager v. Thor, 445 Mich. 95, 105, 516 N.W.2d 69 (1994). Once a legal duty is established, a breach of that duty is required for liability to attach. Whether the duty has been breached is a question of fact for the jury. Riddle, supra at 96, 485 N.W.2d 676.
This inquiry is of critical importance where a company is involved in an inherently dangerous enterprise such as the delivery of electricity. The necessary relationship arises out of the nature of the activity. The provision of electricity and electric power is one of those particular activities in which the provider assumes a distinctive duty. Accordingly, we held that it is the responsibility of the electric company, as a provider of an inherently dangerous commodity, in its superior position of knowledge and expertise, to execute its activities through the exercise of reasonable care to reduce the risk of harm as far as practicable. Id. at 451, 506 N.W.2d 175. We noted in Schultz, that, "[w]here 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." Id. at 453-454, 506 N.W.2d 175.
Even though the reasonable person is charged with the knowledge of the dangerous propensities of electricity, the utility still has the duty and obligation "to reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects." Id. at 451, 506 N.W.2d 175. Indeed, other courts have similarly held that, "`where high-voltage lines were strung between closely spaced private residences, the risk to be foreseen was of the highest order; thus, the corresponding duty devolving upon the power company must be considered equally great.'" Id. at 455, 506 N.W.2d 175, quoting Miner v. Long Island Lighting Co., 40 N.Y.2d 372, 379, 386 N.Y.S.2d 842, 353 N.E.2d 805 (1976).
In addition is the requirement of foreseeability, that is, whether the reasonable person not only could anticipate the likelihood that a particular event would occur, but that such an event would pose a risk of injury or harm to a person or property. Samson v. Saginaw Professional Bldg., Inc., 393 Mich. 393, 406, 224 N.W.2d 843 (1975). In Samson, we stated:
Consequently, as pointed out in Schultz, it is altogether possible for a reasonable person to anticipate both that an individual performing routine maintenance on his home could become electrocuted if his aluminum ladder came into contact with the overhead power line and that this could cause serious injury or death. Id. at 452, 506 N.W.2d 175. The message in Schultz is clear that "[t]hose engaged in transmitting electricity are bound to anticipate ordinary use of the area surrounding the lines and to appropriately safeguard the attendant risks." Id. The appropriate test is not "whether the company should have
In holding that the utility has no duty in Groncki, the lead opinion interprets too narrowly our holding in Schultz. The lead opinion places far too much emphasis on the fact that, like the plaintiffs in Bohnert and Parcher, the plaintiff in Groncki was an experienced maintenance worker who knew about the dangers of power lines and had even warned other workers about them.
The Koehler-Bohnert-Parcher trilogy involved construction sites where new building was taking place. The work space in which the construction activities took place was ample for the activities to occur. The victims in these cases were extremely experienced at operating heavy equipment, whether a fork lift, masonry delivery truck, or crane, and ignored their own occupational safety instructions and warnings. They knew about the danger and the need to stay away from overhead wires. Slip op at 3, 6, and 8. Accordingly, in Koehler, we held that
Clearly, under these circumstances, the injuries were not foreseeable, but the result of fortuitous events not readily anticipated or caused in any way by the negligence of the utility, and thus liability could not attach.
On the other side of the spectrum is Schultz, which involved a homeowner and his friend, who was electrocuted while house painting. The lead opinion notes that we found this kind of incident to be "foreseeable, given the location and disrepair of the power line." Slip op at 10. This is only partially correct. By restricting the holding in Schultz to homeowners repairing their homes, the lead opinion misses the greater significance of Schultz. In Schultz, the critical factors to finding a duty were the placement and condition of the wires, whether it was foreseeable that reasonable maintenance would take place, and whether this maintenance
Notwithstanding Groncki's knowledge and experience or the fact that the power lines complied with the Public Safety Commission regulations, the Court of Appeals charged the electric company with the duty that it "must exercise reasonable care to reduce potential hazards as far as practicable."
The utility is charged with the responsibility and duty to inspect, discover, and remedy hazardous conditions to prevent foreseeable injuries. Both public policy and the protection of the public command this result. I disagree that this will have the dire economic consequences asserted of by the lead opinion. Therefore, I respectfully dissent from the lead opinion's position in Groncki v. Detroit Edison, and would remand this case to the trial court for further fact finding to determine whether the injury was foreseeable, and whether Edison's conduct fell below the standard of care. This evaluation should include an analysis of the type of activity performed, the distance of the power lines from the activity, and whether the activity could be performed or carried out with reasonable safety within that space.
CAVANAGH, J., concurred with MALLETT, J.
I agree with the lead opinion that defendant Detroit Edison did not have a duty as a matter of law to any of the three plaintiffs because it could not have reasonably foreseen that someone would be injured in the particular circumstances of each case. Therefore, I join part II of the opinion, which concludes that the trial court properly granted summary disposition in favor of defendant Detroit Edison in all three cases.
However, I cannot join part III of the lead opinion regarding the issue of general contractor liability in Bohnert v. Detroit Edison. Because I agree with the lead opinion that Wendell Bohnert's injury was not foreseeable to defendant Detroit Edison as a matter of law, I further conclude that there was not a "high degree of risk" presented by the overhead electrical lines to Bohnert for defendant Carrington Homes, the general contractor, as a matter of law. Hence, I respectfully dissent. I would reverse the Court of Appeals decision and reinstate the trial court's grant of summary disposition in favor of Carrington.
As the lead opinion states, this Court has established that a general contractor has a duty on a construction project (1) to take reasonable steps within its supervisory and coordinating authority (2) to guard against readily observable, avoidable dangers (3) in common work areas that (4) create a high degree of risk to a significant number of workers. See Funk v. General Motors Corp., 392 Mich. 91, 104, 220 N.W.2d 641 (1974). See also Plummer v. Bechtel Construction Co., 440 Mich. 646, 666, 489 N.W.2d 66 (Levin, J.), 440 Mich. at 669, 489 N.W.2d 66 (Boyle, J.); 489 N.W.2d 66 (1992) (affirming Funk). I do not believe that there is an issue regarding whether the electrical power lines created a high degree of risk to Bohnert.
In examining whether there was a foreseeable risk to Bohnert for defendant Detroit Edison, the lead opinion concludes that "it was not foreseeable to Edison that an experienced, skilled workman would disregard clear instructions [on the boom] and operate his delivery vehicle directly beneath power lines." Slip op, p 15. For the same reason, I also believe that these power lines, which were not obscured by visual obstructions, did not present a high degree of risk to plaintiff as a matter of law when Stephen Dick of Carrington asked National Cement Products to deliver materials to the site.
The lead opinion claims that its conclusion that the electrical lines both (1) did not create a foreseeable risk of harm, but (2) did create a high degree of risk is "consistent" because Detroit Edison was not "informed that Mr. Bohnert would be operating a crane-like delivery truck beneath [the electrical power] wires." Slip op, p 20. Yet, this Court has previously stated that even if an electric company "knew a building was under construction near its power line and that ... mobile cranes were being brought upon the premises," this would not by itself indicate to the company that there was a reasonably foreseeable risk to an employee performing work involving the crane. See Koehler v. Detroit Edison Co., 383 Mich. 224, 231, 174 N.W.2d 827 (1970) (emphasis added). Likewise, whether Carrington knew that Bohnert would be bringing a truck with a boom onto the worksite would not determine whether there was a high degree of risk created by the electrical power lines. Even if it were a factor to consider, there was no dispute that National Cement Products did not call Stephen Dick of Carrington to inform him that Bohnert was coming to the site to deliver the cement blocks on the day he attempted to deliver the materials. Consequently, there is no dispute that Carrington did not know that Bohnert was coming to the worksite when he did.
The lead opinion also claims that "when the elements of Funk are satisfied, a general contractor is presumed to have been able to foresee that readily observable and avoidable risks will lead to accidents and injuries." Slip op, pp 20-21 (emphasis added). Yet, this analysis assumes its conclusion by asserting that when the elements of the standard are met, i.e., when there is a high risk of danger, the general contractor is then presumed to foresee that these risks will lead
Instead, this Court should recognize that, although electrical power lines are "inherently dangerous" requiring expertise, see Schultz v. Consumers Power Co., 443 Mich. 445, 451, 506 N.W.2d 175 (1993), there was not a high degree of risk of injury for a delivery worker who had delivered concrete block for forty years when he drove onto a worksite with his truck that had two signs on its boom that read "Warning[:] Do Not Operate Within 10 Feet of Electric Power Lines." The electrical power lines were not obscured. In fact, the owners of the property, the Adkinses, had asked Detroit Edison to move the lines before the accident "mostly for looks."
The fact that the risk was not unreasonably high is underscored by plaintiff's own arguments and allegations. In Barbara Bohnert's first amended complaint, she does not allege how Carrington could have made the worksite safe from the alleged hazard. Plaintiff relies on the sworn affidavit of her expert, William Heilman, arguing that Carrington was obligated to "delay commencement of construction until such time as the overhead lines were covered, moved, buried, deenergized, or made safe by some other means...." Yet, the authority to take such action rested with defendant Detroit Edison. Detroit Edison had already moved the electrical power lines a further distance away from the worksite at the request of the Adkins family. In concluding that there was an issue of fact regarding whether there was a high risk of danger with respect to only Carrington, the lead opinion's analysis thereby suggests that Carrington may have had a duty to have the electrical power lines moved or insulated to ensure that the worksite was reasonably safe even though Detroit Edison did not have a duty to move or insulate them because there was no foreseeable risk of harm to anyone. I do not think such reasoning withstands close scrutiny.
Wendell Bohnert's death was a tragedy. However, it did not result, as a matter of law, from Carrington's failure to take some particular action at the worksite where the danger was not unreasonably high for an experienced delivery worker like Bohnert. I would reverse the Court of Appeals decision and reinstate the trial court's grant of summary disposition in favor of Carrington.
WEAVER, Justice (concurring in part and dissenting in part.)
I agree with Justice Riley's partial dissent and partial concurrence and concur with her conclusion, regarding part III of the lead opinion opinion, that, as a matter of law, there was not a "high degree of risk" to Bohnert presented by the overhead electrical lines that would render defendant Carrington Homes, the general contractor, liable. Therefore, I agree with Justice Riley that we should reverse the Court of Appeals decision and affirm the trial court's grant of summary disposition for this general contractor, Carrington Homes.
I write separately because I disagree with and would not follow Funk v. General Motors Corp., 392 Mich. 91, 220 N.W.2d 641 (1974), and its progeny Plummer v. Bechtel Construction, 440 Mich. 646, 489 N.W.2d 66 (1992). The lead opinion's disposition of this case on the basis of Funk exemplifies Justice Coleman's concerns about the unwarranted expansion of tort law, which were voiced in her dissent in Funk, as follows:
RILEY J., concurred with WEAVER, J.
LEVIN, Justice (dissenting).
The lead opinion combines the separate questions of duty, negligence, and comparative negligence, and concludes prematurely on a woefully inadequate summary disposition record and incomplete factual assessment that Detroit Edison could not have been expected to do anything to protect the
Koehler v. Detroit Edison Co., 383 Mich. 224, 231, 174 N.W.2d 827 (1970), although it speaks in negligence terminology, was decided at a time when any contributory negligence of the injured person precluded recovery. Now, the injured person's comparative negligence reduces, but does not preclude, recovery. The lead opinion defines duty to include in the calculus the fault of the particular injured person, here a worker, holding, in effect, that Detroit Edison has no duty to the comparatively negligent.
This redefinition of "duty" is brought about by asking, not whether injury to some person (worker—skilled or not—or nonworker) from unintentional contact with uninsulated electrical lines is foreseeable under ordinarily foreseeable circumstances, but rather whether negligent contact with uninsulated lines by a skilled worker should have been foreseen. The lead opinion then conclusorily responds in the negative, ignoring that most injuries, including most workplace injuries, even of skilled workers, could be avoided if the injured person was at all times alert and careful and never made a mistake due to fatigue, momentary lapse, distractions, or otherwise.
* * * * * *
The Court continued:
The Court concluded that "a power company has a duty to reasonably install its power lines so as to safeguard the public from foreseeable injuries." Id. at 458, 506 N.W.2d 175.
I would hold on the authority of Schultz that Detroit Edison had a duty to exercise due care to protect against reasonably foreseeable contact by workers, skilled and unskilled, as well as homeowners, with uninsulated lines.
The lead opinion speaks of the cost of recognizing a duty in these three cases. The record indicates that temporary sleeves could be installed on wires near construction sites or streamers could be hung from the uninsulated wires during the times of construction involved in Bohnert and Parcher. In both cases, Detroit Edison was made aware, well in advance of the commencement of construction, that there would be the kind of construction that would bring to the site heavy equipment with cranes and booms. Detroit Edison had ample time to install plastic sleeves and/or streamers or otherwise temporarily mark these uninsulated lines.
The record is silent whether installing temporary sleeves, streamers, or orange balls is practical and effective, and is also silent concerning the cost of such installations in the instant cases.
The record contains nothing about the frequency of the kind of accidents that occurred in these cases; how many homeowners, maintenance, construction, delivery men are injured or die as the result of accidental contact with uninsulated electrical lines in a year, two years, or five years. The record is silent concerning the number of times a year Detroit Edison might be called upon to install temporary sleeves, streamers, or orange balls, and the cost of doing so.
The lead opinion, absent such record evidence, finds that the potential cost to Detroit Edison is so great that it relieves it of any duty to safeguard a "skilled" worker who knows of the risk and by mistake encounters an uninsulated line. No thought is given to other alternatives. This Court could appropriately suggest that Detroit Edison seek the approval of the Public Service Commission to assess the cost of temporary sleeves, streamers, or orange balls against the business or other consumer of electricity as part of the installation cost of the new electrical service to the newly constructed structure. It might persuasively appear from a more complete record and thorough analysis that a different result might be required.
A different question would be presented if Detroit Edison were not aware of the new construction and had no time to take temporary measures in the areas where cranes and booms may encounter uninsulated wires.
Groncki does not involve new construction. I agree with my dissenting colleague that there is need for further factual development before this Court could properly consider and decide that all reasonable persons would conclude that Detroit Edison should not have been required to do more to safeguard against the risk of mishaps of the kind that here occurred.
Whenever this Court rules as a matter of law that there is a duty or an absence of duty, it makes a policy assessment regarding the allocation of risk of loss, sometimes imposing it entirely on the injured person, other times transferring it to the defendant. However the Court decides, it has a choice and the choice is in a sense legislative. The Legislature has the last word, but until it acts, the Court's decision, either for or against the recognition of liability, is judicial lawmaking. In my opinion, the Court's obligation is to hold that Detroit Edison, like every other seller of potentially dangerous products, has a duty to take reasonable— not ruinous—precautions to protect the public from known, and thus foreseeable, risks of harm.
One can visualize other cases where the uninsulated lines are hundreds or a greater number of feet from any facility and are hung at great height, and there is no indication that there will be construction activity in the area. That is not the situation in these cases.