Generally, electric companies and other companies maintaining electric wires owe a legal duty of care in locating, constructing, and maintaining their wires. One who maintains a high voltage electric line at places where people are reasonably expected to go for work, business or pleasure owe the duty to guard against contact by insulating the wires or removing them to a place where people will not come in contact with them[i]. However, according to the common law principle, the duty to insulate wires in not absolute.
The duty of an electric company to insulate power lines or warn of the danger of contact with the same arises only when it has actual or constructive notice of activity that presents a danger of contact with a power line or when it has evidence that, based on the totality of the circumstances, gives it cause to reasonably anticipate that a person could come in contact with its power line. Although insulation is not always possible, this does not relieve an electric company of its duty to put and keep the wires in such a place or at such a height such that a person using due care and caution for his/her safety does not come into contact with wires.
Pursuant to the statutes, an electric company is required to bury cable underground or to raise transmission lines to a specific height as required by law. In the absence of a statute, it is not required that an electric company insulate wires that are placed in such a way that contact with them is not reasonably foreseeable.
However, where insulation of wires is expressly imposed by statute, non-compliance with such statute by the power company shall be a sufficient reason to establish negligence[ii].
An uninsulated electric power line’s construction according to the minimum standards of an electrical code and the high standard of the art during its construction does not absolve the electric power company from the charge of negligence in maintaining the uninsulated line in a growing business section, because what was safe at the time of construction is not necessarily safe under changed conditions.
There are instances where the presence or absence of warning signs becomes a factor in determining liability for injury to, or the death of, a child on an electric transmission pole. The judicial determination of the existence of duty rests on sound public policy. In considering whether a duty exists in a particular case, a court must weigh the foreseeability of the injury, the likelihood of the injury, the magnitude of the burden of guarding against it, and the consequences of placing that burden on defendant[iii].
In some instances, the power line tower becomes an attractive nuisance. However, the attractive nuisance doctrine does not apply in the case of a child more than 14 years of age, in the absence of a showing that the child did not possess sufficient intelligence and discretion to be responsible for his acts and to know the risk or danger to be encountered in venturing upon a dangerous instrumentality[iv].
Where power line towers or poles are readily accessible to children and where danger to children in climbing the tower or pole could have been anticipated, it is recognized that the owner would be liable for any injury to a child unless the owner took greater precautions to prevent climbing the tower, than it required if the tower or pole stood in some remote place.
However, if the tower or pole was situated in some remote area, especially a place where the owner would have no reason to anticipate the presence of children, the owner would not be liable. On the subject of negligence, the standard of care is that one maintaining wires carrying electricity is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances is the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger[v].
If the current is within the reach of children passing along or playing upon the street or any public place, the company which maintains electric wires in a street or other public place shall be held liable for injury caused to children by such wires. The fact that a child is a trespasser in climbing electric transmission poles shall preclude recovery for any resulting injuries, at least when the evidence of willful, wanton, or intentional conduct of the owner of the poles is absent. An owner of electric light and power wires owes no duty toward a trespasser thereon except to refrain from injuring him intentionally or wantonly[vi].
It is the ongoing duty of the electrical utility to maintain its wires over streets and highways in such a manner that they will not become dangerous to persons and property. However, in the absence of ownership or a duty to inspect and maintain an electric system, an electric company shall not be held liable for injuries occasioned by the negligent maintenance of the system.
An electric company whose wire sags 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, because it was in such a condition for a long time as to charge the company with notice, it is liable without proof of actual notice[vii].
An electric company may be held liable for erecting poles and wires in a dangerous place and after the erection of the poles and wires, the company may be negligent in the maintenance thereof. Where there is a joint right to use the poles, an employee of either of the companies is neither a trespasser nor a licensee upon the poles when s/he is in discharge of his or her duties.
[i] Hoffman v. Union Elec. Co., 176 S.W.3d 706, 709 (Mo. 2005).
[ii] Wilson v. Texas Electric Service Co., 265 S.W.2d 624 (Tex. Civ. App. 1954).
[iii] Hoffman v. Union Elec. Co., 176 S.W.3d 706, 709 (Mo. 2005).
[iv] Kentucky Utilities Co. v. Earles’ Adm’r, 311 Ky. 5, 7 (Ky. 1949).
[v] Polk v. Los Angeles, 26 Cal. 2d 519, 525 (Cal. 1945).
[vi] Woodis v. Oklahoma Gas & Elec. Co., 1985 OK 62 (Okla. 1985).
[vii] State use of Hoffman v. Potomac Edison Co., 166 Md. 138 (Md. 1934).