Defenses

Where an electric company is held liable for personal injuries alleged to have resulted from negligence of such company, the injured person is guilty of negligence proximately contributing to the reported injury, notwithstanding the negligence of the defendant.  In cases where contributory or comparative negligence is an issue, the elements and the facts necessary for creation are the same in cases of electrical injuries as in accidents produced by other agencies.

Most of the cases show that the injuries complained of resulted from a negligent contact by the injured person with a wire which s/he either knew, or in the exercise of ordinary care and prudence was bound to know, was dangerous and probably deadly.  The rule that, where such facts exist, negligence will be presumed as a matter of law, is no longer open to question in this state, nor is it denied by the appellants[i].

In an action for injury from electricity, the question whether the injured person was guilty of contributory negligence is usually left for the consideration of the jury.  When the facts are undisputed, the court may rule that the injured person was guilty of contributory negligence as a matter of law and so inform the jury by peremptory instruction.

Ordinarily the existence of contributory negligence is a jury question, and it is only when the facts, and all permissible inferences deducible therefrom, leave no other conclusion open than that the plaintiff him/herself contributed to the accident of which s/he complains by some act, so prominent and decisive in its character as to leave no room in the minds of men of ordinary prudence for doubt as to its recklessness and imprudence, that the question will be withdrawn from the jury[ii].

A person’s intentional conduct in exposing him or herself to electricity can supersede any alleged negligence or wantonness of the power company, thus precluding liability.

An electric company that allows a wire to sag down over a highway, and thereby causes injury to a person using the highway free from contributory negligence, is liable to the person injured.  And it is not incumbent upon the plaintiff in such a case to prove that the company had actual notice of the situation of the wire, for if it had been in that condition for such a length of time as to charge the company with notice, it is liable without proof of actual notice[iii].

The law imposes upon a person sui juris, the obligation to use ordinary care for his or her own protection, and the degree of such care should be commensurate with the danger to be avoided.  In ascertaining whether an adult person reasonably ought to recognize that conduct in exposing one’s self to electricity involves a danger of injury, he or she is assumed to be a reasonable person possessed of such knowledge of the dangers of electric energy as is common among laypersons at the time and in the community.

As a general rule, a person has a legal duty to avoid open and obvious dangers, that does not mean that a person is guilty of contributory negligence as a matter of law if the person contacts a known electrical wire regardless of the circumstances and regardless of any precautions he or she may have taken to avoid the mishap[iv].

The following are reasonable and prudent behaviors:

  • Avoiding contact with uninsulated or defective wires, where one has the knowledge of their existence.
  • Avoiding contact with a downed wire upon suspicion by a person of a suitable age and reasonable discretion that the fallen wire is charged with electricity.
  • Using equipment which is generally believed to be of a character or height that it will not contact uninsulated electrical wires.

 

The mere fact that an individual is aware of the presence of electric wires may be sufficient to charge him or her with knowledge that the wires may be dangerous.  Overhead electric power lines may constitute an open and obvious condition as a matter of law, such that liability may be precluded for injuries suffered by a person’s contact with such power lines, even if the person does not actually see the power line and does not know the danger.  As such a person has a duty to look and should discover the presence of power lines if that duty is carried out, and if the person is a person of ordinary intelligence, the person is presumed to appreciate the dangers attendant to contact with electrically charged wires.

The Law imposes upon an electric company a positive duty to insulate its wires.  Therefore, persons whose business has them in close proximity to such wires have the right to assume that the law has been complied with.

The standard of care applied to a  child’s conduct injured by electric wires or electrical appliances is the care which is ordinarily exercised by children of the same age, capacity, discretion, knowledge, and experience under similar circumstances.  However, the rule that ordinary persons should know the dangers attending contact with electric wires shall not apply to immature children.

A person who works in close proximity to electric power lines is not guilty of contributory negligence per se.  Proximate cause is where a person of ordinary prudence could have reasonably foreseen that such a result, or consequences of a generally injurious nature, was probable under all the facts as they existed. The test of proximate cause is whether the risk of injury, not necessarily in the precise form, in which it actually occurs, is within the reasonable foresight of the defendant[v].

One who maintains a high voltage electric line at places where people may be reasonably expected to go for work, business, or pleasure has the duty to guard against contact by insulating the wires or removing them to a place where human beings will not likely come in contact with them[vi].

The rule as to the contributory negligence of one who purposely comes in contact with a wire which the person knows to be carrying a charge has been limited by the principle that where a person seeks to rescue another from imminent danger, and thereby imperils his/her own life by touching such a wire, s/he is not found to be contributorily negligent unless a jury finds the act to be so rash and reckless, under the circumstances, that a person of ordinary prudence would not undertake it.

Usually, a person does not assume any risk on account of the defectiveness of electric wires or other apparatus unless and until s/he knows danger exists and voluntarily exposes him/herself to it.

The rule supported by some authorities is that the defense of assumption of risk shall be applied to cases that arise between master and servant, or at least to cases involving a contractual relationship.  One who assumes a risk inherent in a contractual obligation cannot later complain that the contractee negligently exposed him to that risk.  The “assumption by contract” exception to the general rule of non-liability is not triggered merely because an employer may have a right to inspect and test the work, approve of the work and/or employees of the independent contractor, or require the contractor to follow company safety rules[vii].

A statute shall exempt a municipality or other governmental agency or entity from liability for ordinary negligence.  An electric cooperative organized under a state rural electric cooperative act is not immune from tort liability.

An electric company cannot validly contract away its potential liability for negligence.  Therefore, where such a contractual obligation imposes a duty that is otherwise non-delegable by one party, that party may be held jointly liable for the negligence of the party to whom the duty was contractually delegated.

[i] State use of Hoffman v. Potomac Edison Co., 166 Md. 138, 147 (Md. 1934).

[ii] State use of Hoffman v. Potomac Edison Co., 166 Md. 138, 150 (Md. 1934).

[iii] Id.

[iv] Tyburski v. Stewart, 694 S.E.2d 422, 424 (N.C. Ct. App. 2010).

[v] Martishius v. Carolco Studios, Inc., 355 N.C. 465 (N.C. 2002).

[vi] Id.

[vii] Merritt v. Bethlehem Steel Corp., 875 F.2d 603 (7th Cir. Ind. 1989).


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