Opinion
No. ED 84331
January 4, 2005
Appeal from the Circuit Court for St. Louis City, Honorable Steven R. Ohmer.
James J. Virtel, Ann E. Buckley (co-counsel) St. Louis, Missouri, for respondent.
Steven F. Meyerkord, Steven D. Rineberg (co-counsel), St. Louis, Missouri, for appellants.
Before Gary M. Gaertner, Sr., P.J., and Glenn A. Norton, J.
OPINION
Theodore and Deborah Hoffman appeal the summary judgment denying their claim of negligence against Union Electric Company d/b/a AmerenUE ("UE") for the wrongful death of their daughter. We reverse and remand.
I. BACKGROUND
The Hoffmans' daughter died from injuries sustained when the car she was riding in struck a UE utility pole and overturned. The pole broke, the electric line fell onto the car, and the car caught fire. The pole carried two circuits. UE's regional dispatcher received an alarm regarding one of the circuits, and customers complained that lights were out, indicating an outage on the other circuit. Each of these circuits "locked open" within minutes of the accident, de-energizing the circuits. Once locked open, a circuit is dead until it is manually closed. Lightening striking or contact with a parallel line could also re-energize a deadened line. UE's construction supervisor was notified by the local police dispatcher that there had been an accident, that there were people trapped inside the car and that lines were down. He contacted the UE regional dispatcher, told him that there was accident and headed to the scene. Emergency personnel who had responded to the accident did not know whether or not the line was energized and could not immediately extricate Hoffman from the car or provide medical treatment to her. When the UE employee arrived at the scene, he used a fiberglass stick from one of the fire trucks to remove the line, and emergency personnel extricated Hoffman from the car. Approximately 30 minutes had elapsed by that time.
In their petition, the Hoffmans alleged that UE knew the line was de-energized and had a duty to notify emergency personnel that it was safe to assist Hoffman. UE moved for summary judgment, arguing that it had no duty to encourage emergency personnel to take a risk that its own employees would not take or to provide emergency personnel with information from which they could decide whether to take such risks. It also claimed that the undisputed evidence showed that, even if emergency personnel had been told that the line was dead, they would not have attended to Hoffman before the line was removed. The court granted the motion, and this appeal followed.
II. DISCUSSION
The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993). The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. UE, as the defending party, may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiff's claim, (2) that the plaintiff, 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 those elements, or (3) that there is no genuine dispute as to the existence of each of the facts necessary to support a properly-pled affirmative defense. Id. at 378. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant's response. Id. at 376, 382-83.
A. Duty
In a negligence action, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, that the defendant failed to perform that duty and that this failure caused the injury. Lopez v. Three Rivers Electric Cooperative, Inc., 26 S.W.3d 151, 155 (Mo. banc 2000). "Whether a duty exists is purely a question of law." Id. Duty is simply an expression of policy considerations that entitle the plaintiff to protection. Gunnett v. Girardier Building and Realty Co., 70 S.W.3d 632, 639 (Mo.App.E.D. 2002). Whether a duty will be imposed rests on several policy factors, including: (1) a social consensus that the interest is worth protecting, (2) foreseeability of the injury and a degree of certainty that the plaintiff suffered injury, (3) likelihood of the injury, (4) any moral blame society attaches to the defendant's conduct, (5) prevention of future harm, (6) cost and the ability to spread the risk of loss and (7) the consequences of placing the burden on the defendant. Id. Foreseeability is paramount and depends on whether the defendant should have foreseen a risk in a given set of circumstances. Lopez, 26 S.W.3d at 156. In this context, foreseeability is "the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it." Id.
UE should have foreseen the risk under the circumstances in this case. It was foreseeable that emergency personnel would delay their attention to the victims of this accident until being informed of the status of the electric current in the power line. Serious harm is likely to result from such a delay, and an ordinary person would take precautions to avoid that harm. UE could have guarded against this risk by simply communicating the information it had in its exclusive possession about the status of the power line.
UE argues that because even a locked-open line may re-energize, it would have been imprudent to advise emergency personnel that it was safe to proceed. We do not hold that UE should have advised emergency personnel that the situation was safe when it was not or that UE should encourage emergency personnel to take any particular action. But that does not mean that UE should not have given emergency personnel any information about the line. Had it provided all of the information in its possession — that the circuits were locked open and de-energized, that the line could be re-energized under certain circumstances, that UE employees, as a practice, do not work on a line unless it has been grounded and the circuit tagged so as to prevent anyone from manually closing an open circuit — then emergency personnel could have assessed the risk of proceeding. The more informed emergency personnel are, the better able they are to assess the risks at an accident scene and protect themselves and members of the public. That may mean that they choose to avoid the risk. But, in this case, without any information, emergency personnel could do nothing but wait for UE. Putting emergency personnel in that position is not in the public's best interest.
These standard precautionary measures were, in fact, sidestepped by the UE employee who ultimately removed the line — as routine precautions often are in an emergency.
Our holding is consistent with the Supreme Court's recent reiteration that when wires become dangerous, a utility has a duty to protect the public by fixing the problem within a reasonable period of time. Grattan v. Union Electric Company, 2004 WL 2801369, SC85851 slip op. at *5 (Mo. banc December 7, 2004) (citing Goddard v. St. Joseph Light Power Co., 379 S.W.2d 565, 569 (Mo. 1964)). In Grattan, the Court reversed summary judgment on the plaintiff's claim that the utility was negligent for failing to shut off power to lines that had fallen onto his car after a collision with the utility pole. 2004 WL 2801369 at *1. "Beginning when the wires fell, Union Electric had a duty to discover the danger and shut off the power within a reasonable time." Id. at *6.
As a matter of law, UE had a duty to communicate to emergency personnel at the scene of this accident the information in its possession regarding the status of the power line. B. Causation
The Hoffmans contend that UE's duty to communicate information is established by Lopez, supra, and Pierce v. Platt-Clay Electric Cooperative Inc., 769 S.W.2d 769 (Mo. banc 1989). In Lopez, the Court held that the electric cooperative should have foreseen that an injury could occur to low-flying aircraft because of its unmarked power lines and, therefore, it had a duty to exercise ordinary care to prevent such harm. 26 S.W.3d at 151. In Pierce, the Court held that the cooperative had a duty to exercise ordinary care to address the foreseeable hazard of farmers running into its unmarked guy wire causing them to break and fall onto a busy highway. 769 S.W.2d at 776. Although there is perhaps an analogy to be drawn between a duty to warn of the presence of power lines by marking them and the responsibility to convey information about the status of a power line involved in an accident — in that both involve preventing foreseeable harm — they are two separate duties, each dependent on the particular facts of the case. Thus, while these cases are of some precedential value for general principles of law regarding duty, they are not dispositive of the issue here.
UE argues that even if it had a duty, summary judgment was proper because the Hoffmans cannot present evidence of causation. We disagree. In response to UE's motion for summary judgment, the Hoffmans pointed to a firefighter's testimony that he would have extricated Hoffman from the car if he had been told the line was dead. This is sufficient to show that, had UE provided emergency personnel with the information in its possession, at least one of the workers on the scene would have been willing to proceed with assisting Hoffman without waiting for UE to remove the line. Evidence that the captain of the fire department would not have assisted Hoffman until the line was removed because he would not "injure any of [his] firefighters," even if UE told him that the line was dead, may suggest that the willing firefighter would have been ordered not to proceed to assist the victim until UE arrived. But that goes to the weight of that firefighter's testimony — as does any speculation about what he would have done if told of the remote possibility that the line could re-energize. It does not establish UE's right to summary judgment.
Moreover, it is reasonable to infer that emergency personnel could have removed the line themselves — using the fiberglass stick in the fire truck — had UE provided the necessary information.
III. CONCLUSION
The judgment is reversed, and the case is remanded for further proceedings.
Gary M. Gaertner, Sr., P.J. concurs.
Sherri B. Sullivan, J. dissents in a separate opinion.