Opinion
No. ED 82923
December 9, 2003
Appeal from the Circuit Court of the City of St. Louis, Honorable Thomas Grady.
James J. Virtel, Armstrong Teasdale, Ann E. Buckley, for respondent.
Stephen H. Ringkamp, Scott L. Kolker, for appellants.
Plaintiffs, an injured driver and his wife, filed this personal injury action against the defendant utility to recover damages for injuries plaintiffs alleged to have suffered when driver's car came in contact with power lines that came down after another vehicle knocked over an off-road utility pole. Defendant moved for summary judgment on the grounds that driver's injuries were not reasonably foreseeable and defendant did not owe a legal duty to driver. Plaintiffs appeal from the entry of summary judgment in defendant's favor. We affirm.
In its motion for summary judgment, defendant set out the following facts, which were not denied and are deemed admitted: On or about February 3, 1992, plaintiff, Edward Grattan, was traveling west on Ladue Road, and observed a trash-hauling truck, driven by Daniel Pogue, traveling east on Ladue Road. The truck's right front tire left the pavement, and Mr. Pogue steered the truck back onto the pavement but lost control. The truck overturned and hit a utility pole owned by defendant Union Electric Company, located approximately nine feet, seven inches from the traveled portion of the south side of Ladue Road. The pole fell, breaking four other poles. One pole fell six to seven feet in front of Mr. Grattan's car, and six electrical wires landed on the car.
The pole that was struck in the collision had been installed in 1963 or 1964. The five poles that broke as a result of the February 3, 1992 incident were replaced with poles set in approximately the same locations.
Mr. Grattan and his wife, Katherine M. Grattan, (hereinafter, collectively, "plaintiffs") subsequently filed this lawsuit. Mr. Grattan sought to recover damages from defendant on the theory that it was negligent in "failing to adequately insulate or isolate said electrical lines" and "failing to adequately maintain, operate, install and monitor its equipment and electrical lines and in failing to adequately equip and maintain adequate ground-fault, or circuit interrupting equipment to de-energize said electrical lines in the event of a fault, disruption of the lines, or falling onto the public streets and highways of the State of Missouri." Mrs. Grattan sued for loss of consortium.
Defendant moved for summary judgment on the grounds that, as a matter of law, 1) its duty to insulate or isolate its energized lines to prevent injury is limited to injury that is reasonably foreseeable, 2) the event in which the truck left the traveled portion of the roadway and collided with a utility pole was not reasonably foreseeable, 3) an electric utility does not owe a duty to use circuit interrupting equipment or otherwise fuse for a fault current, and 4) no act or omission on the part of defendant was a proximate cause of plaintiffs' alleged injuries and damages. In support of its motion, defendant filed a statement of uncontroverted facts. Plaintiffs did not deny any of the factual statements in defendant's statement of uncontroverted facts, but they filed a response denying the legal bases for the summary judgment motion, to which they attached portions of the record. The trial court granted summary judgment in defendant's favor on the ground that there is "no duty on the part of the utility company to take precautions against such an off-road collision with a utility pole, because in the absence of very limited and special circumstances (which have not been shown in this case), such a collision is considered not reasonably foreseeable."
We review the grant of summary judgment de novo, and we view the record in the light most favorable to the party against whom judgment was entered, giving the non-moving party the benefit of all reasonable inferences from the record. American Standard Ins. Co. v. Hargrave, 34 S.W.3d 88, 89 (Mo. banc 2000). "Summary judgment is appropriate if there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law." Id. When the defendant is the party moving for summary judgment, as is the case here, the defendant may establish a right to summary judgment by showing any one of the following:
(1) facts that negate any one of the claimant's elements facts, (2) that the non-movant, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of the claimant's elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support the movant's properly-pleaded affirmative defense.
ITT Commercial Finance Corp. v. Mid-Am. Marine Supply Corp., 854 S.W.2d 371, 381 (Mo. banc 1993) (emphasis in original). Once the moving party has met the burden imposed by Rule 74.04(c) by establishing the right to judgment, the non-movant's only recourse is to show by affidavit, depositions, answers to interrogatories, or admissions on file, that one or more of the material facts shown by movant is in fact genuinely disputed. Id. Rule 74.04(c)(2) requires that the adverse party "admit or deny each of movant's factual statements in numbered paragraphs that correspond to movant's numbered paragraphs." The rule also allows the adverse party to set forth additional material facts that remain in dispute in separate, numbered paragraphs supported by the record. Any facts so set out in a response must then be admitted or denied by the moving party in corresponding numbered paragraphs in a reply. Rule 74.04(c)(3). Facts not denied in a properly drafted response or reply are deemed admitted. Loeffler v. City of O'Fallon, 71 S.W.3d 638, 639 (Mo.App. 2002); Reese v. Ryan's Family Steakhouses, 19 S.W.3d 749, 751 (Mo.App. 2000).
We will affirm summary judgment if it is correct as a matter of law on any ground. ITT Commercial Finance, 854 S.W.2d at 387-88. Even if uncontradicted, the facts alleged by the movant must still establish an entitlement to judgment as a matter of law for summary judgment to be granted. E.O. Dorsch Elec. Co. v. Plaza Constr. Co., 413 S.W.2d 167, 173 (Mo. 1967); Ming v. Norfolk Western Ry. Co., 947 S.W.2d 480, 483 (Mo.App. 1997). The key to summary judgment is the undisputed right to judgment as matter of law, not simply the absence of a fact question. ITT Commercial Finance, 854 S.W.2d at 380.
For their sole point on appeal, plaintiffs assert that the trial court erred in its conclusion that defendant did not owe a duty to plaintiffs. Plaintiffs list a number of circumstances that, they argue, prevent application of the rule that an electrical utility does not owe a duty to protect the public from the consequences of a collision with utility poles located off the traveled portion of a road.
In any negligence action, a plaintiff must establish the defendant's duty to protect the plaintiff from injury, the defendant's failure to perform that duty, and the proximate causation of plaintiff's injury by that failure. Lopez v. Three Rivers Elec. Co-op, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000). "Whether a duty exists is purely a question of law."Id. The existence of a duty depends upon whether a risk is foreseeable.Id. at 156. "Foreseeability for purposes of establishing whether a defendant's conduct created a duty to a plaintiff depends on whether the defendant should have foreseen a risk in a given set of circumstances."Id. The concept of duty "takes into account the likelihood of future events leading to injury and the defendant's duty to take care to avoid them." Rothwell v. West Cent. Elec. Co-op., Inc., 845 S.W.2d 42, 44 (Mo.App. 1992).
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. Zuber, 251 S.W.2d at 55. The existence of a mere possibility is insufficient. Id. `The test is not the balance of probabilities, but of the existence of some probability of sufficient moment to induce the reasonable mind to take the precautions which would avoid it.' Id.
Lopez, 26 S.W.3d at 156, quoting Zuber v. Clarkson Const. Co., 251 S.W.2d 52, 55 (Mo. 1952).
This duty is not a duty to protect against all possible injuries. Rather, the duty is to protect the plaintiff from all reasonably foreseeable injuries. There are some injuries for which the defendant is not liable because plaintiff's mishap is not reasonably foreseeable, and thus no duty is obliged.
Rothwell, 845 S.W.2d at 44 (internal citation omitted). One is not bound to foresee every possible injury that might occur. Schlegel v. Knoll, 427 S.W.2d 480, 484 (Mo. 1968). If an instrumentality is rendered dangerous by the act of a third person that the owner had no reason to anticipate, the owner is not liable. Zuber, 251 S.W.2d at 55.
A generator and transmitter of electricity has the duty to use the highest degree of care to prevent injury that is reasonably foreseeable. Goddard v. St. Joseph Light Power Co., 379 S.W.2d 565, 567-68 (Mo. 1964); Scaife v. Kansas City Power Electric Light Co., 637 S.W.2d 731, 733 (Mo.App. 1982). However, an electric utility is not an insurer of public safety, and is not required to isolate or insulate its wires beyond where the public may be lawfully or reasonably be expected to be. Burk v. Missouri Power Light Co., 420 S.W.2d 274, 277 (Mo. 1967).
A defendant can reasonably assume that a person will stay in a place of safety, and a defendant cannot reasonably be held to anticipate that a person would leave a place of safety through negligence, accident, or misadventure. Accordingly, it "`is not negligence to fail to anticipate that another will be negligent for one is entitled to assume and act upon the assumption that others will exercise due care for their own safety, in the absence of notice to the contrary.'" Schlegel, 427 S.W.2d at 484 (emphasis in original) (quoting Taylor v. Dale-Freeman Corp., 389 S.W.2d 57, 61 (Mo. 1965)).
In Clinkenbeard v. City of St. Joseph, 321 Mo. 71, 10 S.W.2d 54 (1928), the Missouri Supreme Court, after reviewing the case law of numerous jurisdictions, held that the defendant electrical utility was not liable in negligence for injuries sustained by a motorist when his vehicle left the traveled portion of the road, went over a 6 to 8 inch curb, traveled into a parkway, and struck a utility pole. The court held that the pole did not "endanger anyone using such traveled and improved portion of the street in the ordinary manner and for the purpose for which such roadway was intended and improved." Clinkenbeard, 10 S.W.2d at 62.
Missouri courts have interpreted Clinkenbeard to present the question whether a collision with a utility pole is reasonably foreseeable.Rothwell, 845 S.W.2d at 44; Scaife, 637 S.W.2d at 731. A collision is not reasonably foreseeable if it could only happen if the colliding vehicle leaves the traveled and improved roadway, absent evidence that the situation is inherently dangerous so as to impute notice or knowledge thereof. Schlegel, 427 S.W.2d at 484. Except for those limited circumstances when notice is imputed, a utility has no duty to drivers who leave the roadway, collide with a utility pole, and suffer injuries as a result of either the collision itself or contact with downed wires.Id.; Rothwell, 845 S.W.2d at 44; Noe v. Pipe Works, Inc., 874 S.W.2d 502 (Mo.App. 1994).
Plaintiffs argue that Clinkenbeard does not apply because Mr. Grattan never left the traveled portion of the road, did not himself collide with the pole, and was not responsible for the wires coming down. These are not distinctions that take plaintiffs outside the rule of Clinkenbeard and its progeny.
Foreseeability does not turn on the questions of who left the roadway or who causes the collision. Rather the "critical" facts are that the utility pole that was struck was off the traveled portion of the roadway, and the injuries that were sustained were the consequence of the collision with that utility pole. Baker v. Empire Dist. Elec. Co., 24 S.W.3d 255, 260 (Mo.App. 2000). If the accident that caused the injury is not foreseeable, there is no duty to a injured passenger in a vehicle that struck an offroad utility pole, Godfrey v. Union Elec. Co., 874 S.W.2d 504 (Mo.App. 1994); Dokmo v. Southwestern Bell Telephone Co., 965 S.W.2d 953 (Mo.App. 1998), to a passenger injured by fallen lines in a vehicle that collided with another vehicle that struck an off-road utility pole, Baker, 24 S.W.3d at 260, or to a person in her own home who was injured by a transformer explosion caused after a vehicle struck an off-road utility pole. Scaife, 677 S.W.2d at 733.
Plaintiffs argue that Hanson v. Union Elec. Co., 963 S.W.2d 2, 6 (Mo.App. 1998), and Thornton v. Union Electric Light Power Co., 72 S.W.2d 161 (Mo.App. 1934), control this case and mandate a different result. We disagree.
In Hanson, the appellate court reversed summary judgment in the utility defendant's favor in a case in which plaintiffs' home was damaged by contact with an uninsulated wire which fell on it after a car hit a telephone pole. The court did not base its decision on the fact that the plaintiffs did not cause the collision, but based it on the question of whether there was a reasonable likelihood that contact with the uninsulated wire would occur. Further, there had been at least three prior car accidents with a utility pole in the same location. One of the plaintiffs had previously asked one of the utility defendants to have the pole moved because of its dangerous location. The court held that this history made foreseeability a fact question for the jury. 963 S.W.2d at 6.
In Lopez the Supreme Court clarified that duty is not a fact question but in some cases the jury may be charged with determining whether facts exist that may give rise to a finding of foreseeability and, in turn, duty. Once these facts are found to exist, it is for the court to determine whether the facts given rise to a duty. Lopez, 26 S.W.3d at 156 n. 1.
Plaintiff's reliance on Thornton is also misplaced. The decision inThornton did not turn on the fact that the injured plaintiff did not cause the accident. In addition, the negligence charged in Thornton was not the placement of the pole, but the maintenance of an uninsulated guy wire over the highway fastened to an anchor pole, which the utility knew or should have known was likely to be broken down by a vehicle collision. 72 S.W.2d at 165. The court reversed the judgment for plaintiff because the jury instruction directed a verdict for plaintiff without a finding of foreseeability. Id. at 165-66. However, it found that the plaintiff had made a submissible case on reasonable foreseeability because of prior accidents with the particular anchor pole in question and other similarly situated poles.
We are aware that the court in Thornton also reported that it was "common knowledge" that vehicles run off the pavement and fail to negotiate curves. Id. at 164. This comment is dicta. First, it was unnecessary to the foreseeability analysis, because the history of actual accidents at this location created a fact question on the utility's actual or constructive knowledge of the probability of the accident. Second, as a matter of law, "common knowledge" that vehicles run off the pavement and fail to negotiate curves does not establish sufficient probability that such an event will happen at any particular location. A vehicle running off the road at any particular place is considered unusual and extraordinary and not reasonably foreseeable. Dowell v. City of Hannibal, 210 S.W.2d 4, 5-6 (Mo. 1948). There is no probability that a vehicle would run off the road at a particular spot of such "sufficient moment" that would make that event reasonably foreseeable. See Lopez, 26 S.W.3d at 156.
To establish "foreseeability, a defendant must be shown to have actual or constructive knowledge that there is some probability of injury such that an ordinary person would take precaution to avoid it." Chemical Design v. American Standard, 847 S.W.2d 488, 490 (Mo.App. 1993). In this case there was no evidence that the pole, which had been erected in 1963 or 1964, had even been hit and there was no basis for defendant to be charged with actual or constructive knowledge that there was a probability of injury.
Plaintiffs also argue that there was a genuine issue of material fact on the question of whether plaintiff timely discontinued or de-energized the electric current in its downed power lines. Because this was not set out as a controverted fact issue in the trial court in the manner required by Rule 74.04(c)(2), we may not consider it. See Peck v. Alliance General Ins. Co., 998 S.W.2d 71, 75-76 (Mo.App. 1999) (construing similar requirements under a prior version of 74.04); Wichita Falls Production Credit Ass'n v. Dismang, 78 S.W.3d 812, 815 (Mo.App. 2002).
In any event, on the facts in this summary judgment record, defendant had no duty as a matter of law. There was no allegation in the summary judgment record that defendant became aware of the fallen line prior to plaintiff's automobile's contact with the downed wires. See First Electric Cooperative Corp. v. Pinson, 642 S.W.2d 301, 303 (Ark. 1982). The cases on which plaintiffs rely, Calderone v. St. Joseph Light Power Co., 557 S.W.2d 658 (Mo.App. 1977) and Kidd v. Kansas City Light Power Co., 239 S.W. 584 (Mo.App. 1922), do not support plaintiffs' argument that defendant had a duty "to timely discontinue or deenergize the electric current to the downed power lines." In each case, the utility had actual notice that the line had fallen but failed to take appropriate action. Kidd, 239 S.W.2d at 585; Calderone, 557 S.W.2d at 663. See also Baker, 24 S.W.3d at 261.
All of plaintiffs' damages were caused by an off-road vehicle collision with a utility pole, which event is not reasonably foreseeable in the absence of special circumstances. Because, as a matter of law, the collision with the pole and the subsequent fall of the lines were not reasonably foreseeable, defendant neither owed nor breached any duty to plaintiffs.
The trial court did not err in entering summary judgment in defendant's favor. Point one is denied.
The judgment of the trial court is affirmed.
Sherri B. Sullivan, C.J., concurs.
Mary K. Hoff, J., concurs.