Summary
In Kohli v. Pub. Util. Comm. (1985), 18 Ohio St.3d 12, 18 OBR 10, 479 N.E.2d 840, this court held that the utility's failure to warn landowners of dangers of neutral-to-earth voltage constituted a tort claim for the courts.
Summary of this case from Kazmaier Supermarket, Inc. v. Toledo Edison Co.Opinion
No. 84-1467
Decided June 19, 1985.
Public Utilities Commission — R.C. 4905.22 claim of harm to dairy operation caused by neutral-to-earth voltage — Court of competent jurisdiction appropriate forum for common-law tort actions.
APPEAL from the Public Utilities Commission of Ohio.
Appellants, Ronald E. and Susan Kohli, own and operate a dairy farm serviced by intervening appellee, Dayton Power and Light Company ("D.P. L."). Appellants also operate their own electrical system.
The appellants moved to their present location in July 1977. Subsequently, their cows, which previously had an average production level of fifty pounds of milk per day, began producing an average of 32.4 pounds of milk per day. Although appellants consulted various agricultural nutritionists in an unsuccessful attempt to rectify the problem, it was not until October 1981 that a professional agronomist recognized the problem as relating to neutral-to-earth voltage.
Neutral-to-earth voltage is the normal voltage difference between the neutral, which in this case is the conductor which carries the return electrical current back to a D.P. L. substation, and a remote ground, which goes into the earth. Each part of the grounded neutral network including conductors, connections, the earth, and the contact between the ground rods and the earth, has some resistance to the flow of electrical current. Due to this resistance, whenever there is a current in the neutral system, a voltage will exist between it and the earth. This resulting neutral-to-earth voltage is a normal and natural condition which is common to every power distribution system in this country. Variances in neutral-to-earth voltage may depend on the utility's load, grounding resistances, and several other factors. See, generally, Cloud, Appleman Gustafson, Stray Voltage Problems with Dairy Cows, North Central Regional Extension Publication 125, Agricultural Extension Service, University of Minnesota.
When the problem was finally discovered, D.P. L. was contacted and in November 1981 a crew was dispatched to investigate the problem. These men measured electrical emission levels of 1.5 volts from the transformer pole at the farm. A line crew was then sent to examine all transformer poles and distribution lines servicing appellants. Additional ground rods and wires were installed, connections and insulators were replaced, copper wire was upgraded, twist sleeves were replaced, and trees were trimmed. In spite of all the modifications there was still no significant decrease in neutral-to-earth voltage.
Appellants filed a complaint against D.P. L. with the appellee, Public Utilities Commission ("commission"). On December 2, 1983, the attorney-examiner recommended that all issues be decided in favor of D.P. L. On December 22 and 27, 1983, appellants filed exceptions to the report. On May 22, 1984, the commission affirmed the examiner's recommendations. Appellants' application for a rehearing was denied.
In its findings of fact the commission ascertained that complainants failed to demonstrate their neutral-to-earth voltage was caused by defects in D.P. L.'s electrical system. These findings of fact included the determinations that neutral-to-earth voltage is inherent in any electrical system; that the dairy farm's own electrical system was partially responsible for the problem; and that such "customer specific" problems should be rectified by the customer and the costs thereof not be charged to all the customers in the system. In addition, the commission stated that claims arising out of tort law, where no showing had been made that D.P. L. had violated its own tariffs, R.C. Title 49, the commission's own rules or National Electric Safety Code standards, were more properly within the purview of a court of competent jurisdiction.
The cause is now before this court upon an appeal as of right.
Teaford, Rich Dorsey and Jeffrey A. Rich, for appellants.
Anthony J. Celebrezze, Jr., attorney general, Robert S. Tongren and Amy Katzman, for appellee.
David M. Duwel, for intervening appellee.
The issue before this court is whether the commission acted against the manifest weight of the evidence. For the reasons set forth below we decline to adopt appellants' position and are compelled to affirm the commission.
R.C. 4905.22 states in pertinent part that, "[e]very public utility shall furnish necessary and adequate service and facilities, and every public utility shall furnish and provide with respect to its business such instrumentalities and facilities, as are adequate and in all respects just and reasonable. * * *" It is this language that appellants would have us construe to compel the utility to provide the special isolation transformer necessary to alleviate their electrical difficulties. Moreover, appellants would have us make this decision in the context of an appeal from a commission determination in response to an R.C. 4905.26 complaint as to service. From our standpoint today it is the procedural context of the claim which is determinative of the result.
In Milligan v. Ohio Bell Tel. Co. (1978), 56 Ohio St.2d 191 [10 O.O.3d 352] this court held that an alleged violation of R.C. 4905.22 is within the exclusive jurisdiction of the Public Utilities Commission. We have stated that a commission order will not be disturbed unless it appears from the record that such finding and order are manifestly against the weight of the evidence and are so clearly unsupported by the record as to show misapprehension or mistake or willful disregard of duty. Cleveland Elec. Illum. Co. v. Pub. Util. Comm. (1975), 42 Ohio St.2d 403 [71 O.O.2d 393], paragraph eight of the syllabus. The evidence adduced herein shows that part of the problem may have arisen from appellants' own electrical system. Evidence was also submitted to show that neutral-to-earth voltage is a normal incident of utility operations. Accordingly, we cannot say that the commission's decision to deny relief to appellants, based upon an R.C. 4905.22 claim, was unsupported by the record.
Appellants also request redress since they were not warned of the potential dangers of neutral-to-earth voltage although evidence was adduced to show that John Dunn, D.P. L.'s engineering coordinator, had been aware of the potential dairy farm problems since 1975-1976. In the absence of a commission regulation or order, there is no precedent to expand R.C. Title 49 for a utility's failure to warn of a potential danger. The commission noted that such claims sounded in tort and were more properly cognizable before a court of competent jurisdiction. See Thompson v. Ohio Fuel Gas Co. (1967), 9 Ohio St.2d 116 [38 O.O.2d 294]; cf. Interstate Sash Door Co. v. Cleveland (1947), 148 Ohio St. 325 [35 O.O. 314].
While we are mindful of the plight of dairy farmers confronted by the difficulties in earning a living in today's economy, we must point out that appellant's attempts to pursue common-law rights were dismissed in Kohli v. Dayton Power Light (June 11, 1984), Logan C.P. No. 83-622, unreported, for want of prosecution. As we have established previously in Milligan, supra, a court of competent jurisdiction is the appropriate forum for common-law tort actions and not the Public Utilities Commission. See, also, New Bremen v. Pub. Util. Comm. (1921), 103 Ohio St. 23.
Parenthetically, we would also remind the utilities that the range of their responsibilities to the public is not limited solely by industry standards and commission regulations. As Justice Oliver Wendell Holmes noted in Texas Pacific Ry. Co. v. Behymer (1903), 189 U.S. 468, 470: "What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not." With respect to a power company the standard is not merely reasonable prudence but is "the highest degree of care." Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347 [25 O.O. 467], paragraph two of the syllabus.
Based upon the procedural context of the case sub judice we are compelled, however, to affirm the order of the commission in this specific instance. We would, however, urge the commission to adopt guidelines in determining maximum neutral-to-ground levels and seriously consider whether the costs of alleviating the problem should be spread among all consumers as an economic cost of electricity usage. Moreover, we would urge the utilities to warn their consumers of the potential dangers of neutral-to-earth voltage.
Order affirmed.
SWEENEY, LOCHER, HOLMES and WRIGHT, JJ., concur.
CELEBREZZE, C.J., C. BROWN and DOUGLAS, JJ., dissent.