CASE v. CONSUMERS POWER CO.

Opinion

YOUNG, J.

We granted leave in this case to address the proper standard of care applicable to providers of electricity in stray voltage cases. We conclude that the general standard of care is always "reasonable care," and it is for the jury to determine whether the defendant's conduct in a given case fell below that standard.

In this case, the trial court instructed the jury that electricity is inherently dangerous and, therefore, that defendant was required to inspect and repair its electrical lines. Because the instruction imposed an obligation to inspect and repair, it was improper. Further, we cannot conclude that the error in this case was harmless. Accordingly, we vacate the judgment for plaintiffs and remand for a new trial.

Facts and Procedural Background

Plaintiffs Kenneth and Diana Case were dairy farmers during the 1970's and 1980's. In 1986, plaintiffs sold their dairy cows in a government buyout program. According to plaintiffs, the sale was induced by financial stress, which was a result of low milk production. In 1993, plaintiffs bought a new herd and presumed dairy farming. Shortly after buying the new herd, plaintiffs concluded that their earlier milk-production problems were caused by stray voltage, and sued Consumers Power Company.

Stray voltage (technically referred to as neutral-to-earth voltage, or NEV) is an electrical phenomenon that can sometimes affect livestock, causing decreased milk production in dairy cows, among other problems. According to the parties, the voltage is so low that humans cannot detect it.1 Stray voltage can have different causes, and stray voltage on a farm may be caused by a problem on the farm, a problem in Consumers' wires off the farm, or even a problem on another customer's property, such as a neighboring farm.2 There is a procedure, sometimes referred to as "separating the neutrals," that, according to the parties, will eliminate all off-farm sources.

In this case, plaintiffs alleged that stray voltage depressed milk production on their farm until the neutrals were separated, whereupon milk production returned to normal. Defendant responded that it was not negligent, and that plaintiffs' milk-production problems were not caused by stray voltage. After hearing evidence regarding stray voltage and the problems on plaintiffs' farm, a jury rendered an award for plaintiffs, although the jury also found plaintiffs partially at fault (fifty-five percent). Defendant filed motions for directed verdict, judgment notwithstanding the verdict, and a new trial, all of which the trial court denied. Defendant appealed, and the Court of Appeals affirmed.3 We then granted defendant's application for leave to appeal.4

The only issue before this Court concerns a jury instruction regarding the standard of care owed by Consumers to plaintiffs. Over Consumers' objection,5 the trial court instructed the jury as follows:

Standard of Review

We review claims of instructional error de novo. In doing so, we examine the jury instructions as a whole to determine whether there is error requiring reversal. The instructions should include all the elements of the plaintiff's claims and should not omit material issues, defenses, or theories if the evidence supports them. Instructions must not be extracted piecemeal to establish error. Even if somewhat imperfect, instructions do not create error requiring reversal if, on balance, the theories of the parties and the applicable law are adequately and fairly presented to the jury. Murdock v. Higgins, 454 Mich. 46, 60, 559 N.W.2d 639 (1997). We will only reverse for instructional error where failure to do so would be inconsistent with substantial justice. MCR 2.613(A); Johnson v. Corbet, 423 Mich. 304, 377 N.W.2d 713 (1985).

Analysis

To establish a prima facie case of negligence, a plaintiff must prove four elements: (1) a duty owed by the defendant to the plaintiff, (2) a breach of that duty, (3) causation,6 and (4) damages. Schultz v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993). The disputed instruction in this case was intended to aid the jury in determining whether defendant breached its duty to plaintiffs to exercise "reasonable care." 7 This is the so-called "general standard of care" applicable in negligence cases. See Moning v. Alfono, 400 Mich. 425, 443, 254 N.W.2d 759 (1977). Ordinary care means the care that a reasonably careful person would use under the circumstances. See SJI2d 10.02; Detroit & M.R. Co. v. Van Steinburg, 17 Mich. 99, 118-119 (1868) ("Negligence ... consists in a want of that reasonable care which would be exercised by a person of ordinary prudence under all the existing circumstances, in view of the probable danger of injury").

Ordinarily, it is for the jury to determine whether a defendant's conduct fell below the general standard of care. Stated another way, the jury usually decides the specific standard of care that should have been exercised by a defendant in a given case. Moning, supra at 438, 254 N.W.2d 759. However, the court sometimes decides the specific standard of care if it is of the opinion "that all reasonable persons would agree or there is an overriding legislatively or judicially declared public policy...." Id.

For example, in Schultz, supra, the plaintiff was electrocuted and died after an aluminum ladder he was using came too close to Consumers Power Company's 4,800 volt transmission lines. This Court recognized that "electricity possesses inherently dangerous properties" and that "electric utility companies possess expertise in dealing with electrical phenomena and delivering electricity." Schultz at 451, 506 N.W.2d 175. Accordingly, the Schultz Court held not only that electric utility companies owed a duty to exercise reasonable care in maintaining their wires, but that those companies are required 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 175.8 The Court in Schultz cited a number of cases in support of its conclusion, all but one of which involved the dangers of unintended contact with high-voltage electricity.9 In this case, the trial court concluded that it was bound to instruct the jury consistently with the standard articulated in Schultz, although it expressed some reservation about doing so.10

The "duty" of inspection and repair imposed in Schultz was intended to protect against the likelihood of serious injury or death. Id. at 453-454, 506 N.W.2d 175. Clearly, "reasonable care under the circumstances" represents a sliding scale. The more severe the potential injury, the more resources a reasonable person will expend to try and prevent that injury. Similarly, the greater the likelihood that a severe injury will result, the greater the lengths a reasonable person will go to prevent it. This principle is widely recognized.11

With this principle in mind, we think it beyond dispute that the dangers of high-voltage electricity (fire, electrocution, and death among them) are different in kind, and more severe, than the dangers of stray voltage. Schultz represents a very limited exception to the general rule that the jury determines the specific standard of care owed by a defendant in a particular case, and stray voltage simply does not qualify for that unusual treatment. Thus, we conclude that the obligation to inspect and repair that was articulated in Schultz is inapplicable in stray-voltage cases. Rather, we conclude that a jury must determine the precise actions required to meet the reasonable care standard in stray-voltage cases.

As the United States Supreme Court recognized long ago:

There is no fixed standard in the law by which a court is enabled to arbitrarily say in every case what conduct shall be considered reasonable and prudent, and what shall constitute ordinary care, under any and all circumstances. The terms "ordinary care," "reasonable prudence," and such like terms, as applied to the conduct and affairs of men, have a relative significance, and cannot be arbitrarily defined. What may be deemed ordinary care in one case may, under different surroundings and circumstances, be gross negligence. The policy of the law has relegated the determination of such questions to the jury, under proper instructions from the court. It is their province to note the special circumstances and surroundings of each particular case, and then say whether the conduct of the parties in that case was such as would be expected of reasonable, prudent men, under a similar state of affairs. [ Grand Trunk R. Co. v. Ives, 144 U.S. 408, 417, 12 S.Ct. 679, 36 L.Ed. 485 (1892).]

Plaintiffs argue that, even if the disputed instruction was erroneous, it was harmless. Indeed, as plaintiffs point out, most of the instructions read to the jury properly cited the ordinary care standard. However, the disputed instruction specifically required defendant to "inspect and repair" its lines to prevent stray voltage. The instruction thus took from the jury one of the crucial questions before it: in light of the level of danger and likelihood of injury posed by stray voltage, what actions was defendant required to take in order to prevent such injury? Put differently, the instructions failed to present one of Consumers' primary defenses to the jury—that Consumers had no obligation to discover and repair unknown stray voltage problems. The essence of Consumers' position was that it was acceptable to wait for problems to be reported before it had to take action. Under these circumstances, we must reverse the verdict and remand for a new trial. Gapske v. Hatch, 347 Mich. 648, 657-659, 81 N.W.2d 337 (1957).

By our analysis we do not intend to suggest that ordinary care regarding stray voltage requires less than reasonable inspection and repair, or that it requires more than merely waiting for problems to be reported. Rather, we simply acknowledge that the jury must decide on the basis of the evidence before it exactly what actions defendant was required to take under the circumstances of this case.

For the reasons stated, we vacate the judgment for plaintiffs and remand for a new trial consistent with this opinion.

WEAVER, C.J., and TAYLOR and MARKMAN, JJ., concurred with YOUNG, J.

MICHAEL F. CAVANAGH, J. (dissenting).

I dissent. The majority adequately pinpoints the issue as being whether the trial court erroneously instructed the jury on the applicable standard of care in stray voltage cases. Op., p. 18. However, I disagree with the majority's conclusion that "the obligation to inspect and repair that was articulated in Schultz [ v. Consumers Power Co., 443 Mich. 445, 449, 506 N.W.2d 175 (1993),] is inapplicable in stray-voltage cases." Op., p. 21. I further disagree that a remand for a new trial is warranted. All the critical issues in this case were presented to and properly decided by the jury. Therefore, I would affirm the decision of the Court of Appeals.

The disputed jury instructions in this case sprang from Schultz. In Schultz, a man was electrocuted while painting a house. He and his companion were moving a metal ladder toward the house when it came close to an uninsulated power line hanging near the house. The proximity of the ladder to the uninsulated wire created an arc of electricity that sent a current of electricity down the ladder and into the men. This Court held that, because of the special relationship between the decedent and the power provider, the power company had an affirmative duty 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 special relationship arose out of the fact that electricity has inherently dangerous properties, and that special expertise is required to deal with electrical phenomena and the delivery of electricity. Id.1

The majority finds Schultz inapplicable to stray voltage cases partially on the basis that "the dangers of high-voltage electricity (fire, electrocution, and death among them) are different in kind, and more severe, than the dangers of stray voltage." Op., p. 21. As such, the majority argues, stray voltage cases should not receive the "unusual treatment" accorded to cases involving high-voltage electricity. Op., p. 21. Although I agree with the majority that the nature of the danger presented by stray voltage is different than the nature of the danger presented by high-voltage electricity, I disagree that a difference in the type of damage caused justifies a departure from the Schultz standard.

Stray voltage cases, like cases involving high-voltage electricity, involve harms caused by the properties of electricity. The appellant's own brief demonstrates this point. According to the appellant, "[a]ll utilities, Consumers included, operate grounded power distribution systems, principally for safety reasons." Electricity must always return to its source to complete its circuit. If the "hot" wire breaks, the current will flow down the nearest ground line into the earth, bypassing the break until it can reconnect with the neutral at some other point. The ground wire also provides a path to earth for excessive voltage surges from lightning strikes and other accidents.

Because of the inherently dangerous properties of electricity, these ground wires are provided, and must be reasonably maintained and inspected. But for the safety measure of the ground wires, events such as line breaks and lightning strikes would have catastrophic consequences.

Therefore, maintaining and inspecting the neutral ground wires is inextricably bound with those properties of electricity causing fires and electrocution, even though, ordinarily, the neutral wires only carry neutral-to-earth voltage (NEV) that is beneath the level of human detection.

Regardless of whether the distribution of high currents of electricity through uninsulated wires in residential neighborhoods might cause death, while the low currents involved in stray voltage cases causes a lesser degree of harm, the level of harm caused does not alter the properties of the electricity itself. The distribution of electricity still requires special knowledge about how to direct and control a dangerous commodity.2 For example, if a utility worker were injured while climbing up a utility pole, it might be appropriate to apply a different standard than in Schultz because the injury would be unrelated to the properties of electricity. Conversely, the properties of electricity itself give rise to stray voltage injuries. Here, the jury found that the Cases suffered the loss of an entire dairy herd and nearly two million dollars in damages because of defendant's negligence in dealing with the inherently dangerous properties of electricity. I cannot agree with the majority's attempt to distinguish Schultz. Rather, the trial court appropriately applied Schultz to this stray voltage action.

Schultz's requirement that providers of electricity "reasonably inspect and repair wires and other instrumentalities in order to discover and remedy hazards and defects" can fairly be applied in stray voltage cases. Id. at 451, 506 N.W.2d 175. While reasonable inspection might include detecting frayed wires or uninsulated wires in residential neighborhoods, reasonableness might not encompass detecting stray voltage. Similarly, power providers could also argue that stray voltage is neither a hazard nor a defect. The questions of reasonableness, of what it means to "inspect and repair," and what constitutes "a hazard or defect" leave room for interpretation by a jury.

The defendant argues that its liability should be proportioned according to the degree of risk involved. While I agree with the majority that the concerns are different in stray voltage cases than in electrocution cases, I disagree that those differences render a Schultz-based jury instruction inadequate. Under the majority's approach, trial courts will be left to determine when electricity acquires "dangerous" properties. Schultz, on the other hand takes note of the fact that electricity has "inherently dangerous" properties, and allows the jury to determine when inspection and repair is reasonable. I would apply the Schultz test, and would uphold the jury's decision.

The defendant also asserts that it was unable to fully present its arguments. The majority agrees. Op., p. 22. Even if I were to agree with the majority that Schultz creates too high a standard for stray voltage cases, I would disagree with the majority's harmlessness assessment. The defendant had a fair opportunity to present its arguments. As the majority acknowledges, the defendant's primary argument is that it need only act with reasonable care under the circumstances, and that it had no duty to inspect and repair its wires. Under the Schultz instructions given, the jury could have concluded that the stray voltage detection required an unreasonable level of inspecting and repairing, or that inspecting and repairing would not serve the purpose of remedying hazards and defects. Thus, the jury had the opportunity to conclude that the defendant was not required to inspect and repair its wires under the circumstances. I would affirm the decision of the Court of Appeals.

MARILYN J. KELLY, J., concurred with MICHAEL F. CAVANAGH, J.

CORRIGAN, J., took no part in the decision of this case.