Applicable Principles

Electric companies are commercial entities which own and operate equipment and facilities for the generation, transmission, and distribution of electric energy.  Electric companies sell electric energy to the general public and/or industrial consumers.  Generally, a private corporation that furnishes electricity to a municipality or its inhabitants is manifestly a public service or public utility corporation.  Therefore, it shall be subject to the law applicable to corporations or companies engaged in public service.

The electric cooperative derives it powers from the act which authorized the creation of the cooperative.  Generally, an electric company is under a legal obligation to render adequate, impartial, and reasonably efficient service at reasonable rates to all members of the public to whom its public use and scope of operation extend.  Under the emergency assistance doctrine, a power provider who is rendered emergency assistance by a federal authority to provide power service during a serious power shortage is liable for payment of the costs incurred by the Federal Government in providing that assistance.

Pursuant to 16 U.S.C.S. § 839c(b)(1), the Northwest Power Act (NWPA), directs that whenever requested, by either a public body and cooperative entitled to preference under the Bonneville Project Act of 1937, or an Investor-Owned Utility (IOU), the Bonneville Power Administration (BPA) shall offer to sell electric power to meet the requesting entity’s firm power load[i].

The liability of electric companies for damage or injury is not governed by the principles of contracts.  It is well established, at least as a general rule, that a plaintiff who seeks to recover under the terms of an express contract for defendant’s failure to perform its terms must plead and prove his own substantial performance[ii].

Generally, in the injury cases related to transmitting, maintaining, or accidentally contacting electrical wires, the doctrine of strict products liability is not applicable.  This is because the transmission of electricity over high-tension power lines is not considered so ultra-hazardous as to warrant imposition of the strict-liability standard.  However, strict liability shall apply in the case of “stray” voltage that is accidentally discharged into the ground.

A supplier of electrical appliances shall be held strictly liable for injury resulting from a defective appliance under appropriate circumstances. The distribution of electrical energy requires power companies to exercise a high degree of care.  However, the concept of absolute liability is reserved only for abnormally dangerous activities for which no degree of care can truly provide safety.  Absolute liability is not imposed on power companies in Illinois because of the obvious social and economic burdens and power companies are not absolute insurers of public safety[iii].

Electric companies are bound to use reasonable or ordinary care in the construction and maintenance of the line and apparatus.  The degree of care an electric company ought to exercise differs according to the circumstances involved.  The following are the circumstances to be considered in establishing the standard of care to be exercised by a power provider:

  • The amount of voltage carried in the line;
  • Insulation of it;
  • Presence or absence of notices warning of the line’s dangerous character;
  • Its location with relation to adjacent buildings and height above the ground;
  • The line’s compliance or lack of compliance with recognized standards for insulation;
  • The foreseeability that persons in their ordinary and lawful activities might suffer injury or death from contact therewith.

 

Electric companies or power companies are expected to anticipate and protect against events which are reasonably likely to occur.  The duty owed by electric companies with respect to their transmission lines is calculated according to the negligence test of foreseeability.  However, there is no duty to safeguard against occurrences that cannot be reasonably anticipated.  Also, operators of power lines are not required to anticipate each and every possible accident which may occur and they are not the insurers of the safety of persons moving around power lines in the course of everyday living.

Under Arkansas statutory and common law, electric utilities have a duty to act with reasonable care in the delivery of services.  The very nature of the business of an electric company requires it to use a high degree of care in the erection, maintenance, operation, and inspection of its equipment so as to prevent injury to one likely to come in contact with the power line.  An electric utility falls short of its duty of ordinary and reasonable care when it fails to anticipate and guard against events which may reasonably be expected to happen.  It is not negligent, however, to fail to anticipate events occurring only under unusual circumstances, or those that can not be reasonably foreseen[iv].

Where the circumstances are such that the probability of danger to persons having a right to be near an electric line or wire is reasonably anticipatory, a power company shall be held liable for injury or death resulting from contact between an electric line and such machine.  However, the power company shall not be liable for damages resulting from contact between its wires and a crane, derrick, or other movable machine where it is unreasonable to expect such company to foresee the probability of injury under the existing circumstances.  Therefore, a failure to anticipate and guard against a happening which would not have arisen unless under some exceptional circumstances shall not be deemed negligence.

An electric company’s compliance with safety standards indicates that the provider has met the minimal standard.  However, any failure to comply with existing statutes, ordinances, codes, or regulations relating to the installation and maintenance of electrical equipment and wires shall amount to negligence.

Some states have adopted the National Electric Safety Code and have been given the force of law.  An electric utility ought to comply with the National Electrical Safety Code in construction of a transmission line.  However, such compliance or an initial compliance is not conclusive where the particular circumstances justify a finding of lack of due care and does not relieve a power company of liability.

In ascertaining whether an electric company has met the degree of care required, the methods customarily used in the industry should be considered.  Conformity by an electric company to the general custom of power companies with relation to the manner of maintaining power lines in rights of way does not excuse the company from liability from its acts unless the practice is consistent with due care[v].

Where the evidence is not clear, the question whether or not the negligence of the defendant was the proximate cause of the injury should be determined by the jury. Where the facts are undisputed or the evidence is susceptible to only one reasonable inference, in such respect, the question of proximate cause is one of law for the court.

The general principles of the law of negligence as to concurrent and intervening causes are applicable in determining the liability of electric companies and others engaged in the transmission and use of electricity for injuries.  An act of God which is deemed to be a contributing or concurring cause of an injury shall not relieve an electric company from liability for its own contributing act of negligence.  Therefore, the fact that lightning is beyond the control of an electric company shall not relieve the company from its liability for negligence.

There are some instances when electric power or generating plants or transformer stations are not generally characterized as nuisances.  However, in some instances they are considered public or common nuisances.  What constitutes nuisance should be determined according to the circumstances of the particular case.  Generally, noise, dust, smoke, vibration, gases and odors, or a combination of such elements generated by an electric company, rendering the adjacent and nearby properties less comfortable and valuable, shall amount to nuisance.  An electric company cannot evade the responsibility for nuisance created by it, by way of subcontracting the performance of its obligations[vi].

[i] Pac. Northwest Generating Coop. v. DOE, 550 F.3d 846 (9th Cir. 2008).

[ii] Tri-County Metro. v. Time Warner Telecom of Or., LLC, 2008 U.S. Dist. LEXIS 81509 (D. Or. Oct. 14, 2008).

[iii] Nelson v. Commonwealth Edison Co., 124 Ill. App. 3d 655 (Ill. App. Ct. 2d Dist. 1984).

[iv] Koch v. Southwestern Elec. Power Co., 544 F.3d 906 (8th Cir. Ark. 2008).

[v] Irelan-Yuba Gold Quartz Mining Co. v. Pacific Gas & Electric Co., 18 Cal. 2d 557 (Cal. 1941).

[vi] Hyde Park Thomson-Houston Electric Light Co. v. Porter, 167 Ill. 276 (Ill. 1897).


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