Rather than resting on negligence principles, it "is premised on the concept of enterprise liability for casting a defective product into the stream of commerce." Smith v. Home Light Power Co., 734 P.2d 1051, 1054 (Colo. 1987) (quoting Jackson v. Harsco Corp. 673 P.2d 363, 365 (Colo. 1983)); see also Camacho v. Honda Motor Co., 741 P.2d 1240, 1246 (Colo.
¶ 22 Because of the inherently dangerous nature of supplying electricity, electrical utilities are held to the "highest degree of care which skill and foresight can attain consistent with the practical conduct of [their businesses] under the known methods and the present state of the particular art." Smith v. Home Light & Power Co. , 734 P.2d 1051, 1058 (Colo. 1987) (quoting Denver Consol. Elec. Co. v. Simpson , 21 Colo. 371, 376–77, 41 P. 499, 501 (1895) ). Electrical utilities that utilize power lines assume this heightened degree of care to protect the public from the dangers of electricity.
Although identifying the moment of sale is a more challenging task, a reasonable consensus prevails: electricity is typically held to be "sold" when it passes through the customer's meter. See, e.g., Ransome, 275 N.W.2d at 643, 649. It is at this moment that the customer's charges are computed, the seller relinquishes control over its product, and the electricity has been reduced to a voltage suitable for ordinary use. Id.: Aversa v. Public Serv. Elec. Gas Co., 186 N.J. Super. 130, 451 A.2d 976, 980 (Law Div. 1982); Smith v. Home Light Power Co., 734 P.2d 1051, 1055 (Col. 1987). Put another way, strict liability typically applies, if at all, only to injuries suffered inside the home or business, not to those experienced outside.
In determining the extent of liability of a product manufacturer for a defective product, this court has adopted the doctrine of strict products liability as set forth in the Restatement (Second) of Torts section 402A (1965). Smith v. Home Light Power Co., 734 P.2d 1051 (Colo. 1987); Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579 (Colo. 1984); Anderson v. Heron Eng'g Co., 198 Colo. 391, 604 P.2d 674 (1979); Hiigel v. General Motors Corp., 190 Colo. 57, 544 P.2d 983 (1975).
The Court granted the utility's motion to dismiss, finding "no case in this or any other jurisdiction which has permitted a plaintiff to recover for injuries sustained from contact with an electrical line on the theory of strict products liability" (Farina v Niagara Mohawk Power Corp., supra, at 700). The Court noted that refusal to apply the doctrine was based, among other factors, on the fact that electricity "is not a product within the contemplation of the doctrine's authors" (Farina v. Niagara Mohawk Power Corp., supra). Courts in other jurisdictions similarly have rejected the argument that electricity is a product while it is still in a transmission line (see, e.g., Smith v. Home Light Power Co., 734 P.2d 1051 [Colo]; Genaust v Illinois Power Co., 62 Ill.2d 456, 343 N.E.2d 465). Here, however, the electricity had passed through the customer's electric meter. Under such circumstance, courts in some jurisdictions have held that electricity is a product because it has been placed in the stream of commerce and is no longer under the control of the supplier (see, e.g., Smith vHome Light Power Co., 734 P.2d 1051, 1055, supra).
(2) It is now firmly settled that electricity can be a product within the meaning of Greenman and section 420A of the Restatement Second of Torts and therefore subject to principles of strict liability in appropriate cases. ( Pierce v. Pacific Gas Electric Co. (1985) 166 Cal.App.3d 68, 83-84 [ 212 Cal.Rptr. 283, 60 A.L.R.4th 709]; see also Smith v. Home Light and Power Co. (Colo. 1987) 734 P.2d 1051, 1054; Ransome v. Wisconsin Elec. Power Co. (1979) 87 Wisc.2d 605 [ 275 N.W.2d 641, 648]; Houston Lighting Power Co. v. Reynolds (Tex. App. 1986) 712 S.W.2d 761, 766; Elgin Airport Inn v. Commonwealth (1980) 88 Ill. App.3d 477 [ 410 N.E.2d 620, 623-624]; Petroski v. Northern Indiana Pub. Service Co. (1976) 171 Ind. App. 14 [ 354 N.E.2d 736, 747]; Schriner v. Pa. Power Light Co. (1985) 348 Pa. Super. 177 [ 501 A.2d 1128, 1133].) The seminal case in California regarding strict liability in tort for defective electricity is Pierce v. Pacific Gas Electric Co., supra, 166 Cal.App.3d 68.
Colorado courts have been reticent about extending the doctrine of strict liability to the provision of services. See Schmaltz, 534 P.2d at 784; see also Smith v. Home Light Power Co., 734 P.2d 1051, 1056 (Colo. 1987) (affirming the view of the court of appeals that provision of a service cannot provide a foundation for imposition of strict products liability); Yarbro v. Hilton Hotels Corp., 655 P.2d 822, 828 (Colo. 1982) ("[T]he tort rationale for product liability does not easily extend to cover the providing of services.").
See, e.g., Perreira v. Colorado, 768 P.2d 1198 (Colo. 1989); Smith v. Home Light Power Co., 734 P.2d 1051 (Colo. 1987). Shell merely points to Forrest as a dispositive general rule.
However, the Court notes that a properly pleaded action based upon products liability would likely be dismissed as the product, electricity, was still in control of Delmarva, and as such had not entered the stream of commerce. See, Smith v. Home Light Power Co., 734 P.2d 1051, 1085 (Colo. 1987); Wood v. Public Service Co., 114 N.H. 182, 317 A.2d 576 (1974); Kemp v. Wisconsin Power Co., 44 Wis.2d 571, 172 N.W.2d 161, 166 (1969); Schriner v. Pennsylvania Power Light Co., 348 Pa. Super. 177, 501 A.2d 1128 (1985); Aversa v. Public Service Electric Gas Co., 186 N.J. Super. 130, 451 A.2d 976, 979 (1982); Williams v. Detroit Power Co., 63 Mich. App. 559, 234 N.W.2d 702 (1975); Genaust v. Illinois Power Co., 23 Ill. App.3d 1023, 320 N.E.2d 412 (1974) aff'd, 62 Ill.2d 456, 343 N.E.2d 465 (1976). The only case cited by plaintiff to support a claim based upon products liability was subsequently reversed.
(electricity delivered in marketable state to customer is a "product").Smith v. Home Light & Power Co. , 695 P.2d 788, 789 (Colo. App. 1985) ("We agree that electricity itself is a product, but conclude that its distribution is a service."), aff'd, 734 P.2d 1051 (Colo. 1987) ("at least until the electricity reaches a point where it is made available for consumer use, it is not a 'product' that has been 'sold' ").Travelers Indem. Co. of Am. v. Conn. Light & Power Co. , 2008 WL 2447351, at *5 (Conn. Super. Ct. June 4, 2008) ("It is the opinion of this court that the electricity is a product for the purposes of [Connecticut law] once it passes through the meter of a consumer").