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Persons to Whom Duty of Care is Owed

An electric company owes a duty of using the necessary skill and prudence to prevent injury to persons coming in contact with electric wires.  This duty is imposed not only with respect to the public but also with respect to any individual engaged in a lawful occupation in a place where s/he is entitled to be.  While it becomes necessary for the electric company to use the streets and highways for the erection of poles, wires, and other appliances for the conveyance of electric current, such use of streets and highways is lawful, provided proper consent is obtained.

Generally, electric utilities have no duty to insulate even those lines that they own if the general public is not exposed to the lines and the utility has no knowledge of a particular segment of the population that is regularly exposed to the un-insulated lines.  However, a utility company has a duty to insulate its lines in places where the general public comes into contact with them, but not where the only people who come into contact with them are utility employees or others charged with knowledge of necessary safety precautions[i].

Usually, an owner or occupant of land who directly or by implication invites or induces others to go upon his or her premises owes to such persons a duty to have the premises in a reasonably safe condition and to give warning of latent or concealed perils.  If a person is rightfully on the property of an electricity provider, the person is entitled to protection against negligent or willful injury.  Where the company contracts with a stranger for performance of work upon its premises, it must keep its wires so protected and insulated as to be safe for workers whose duties require them to be in their vicinity.  Liability for injuries to the employee of an independent contractor may rest upon the principal employer where the premises upon which the work is performed remains under his or her control and the injuries arise out of the dangerous condition thereof.  The patrons of the company have the right to presume that they will not be injured in attempting to use that which the company furnishes and that it will do all that human care, vigilance, and foresight can reasonably do consistent with the practical operation of its business to protect them from a dangerous electric current over its wires from any cause.  The duty of the company to employees of its customers is a continuing one, and it requires constant oversight and repair.

It is a general rule that an occupant of premises owes no duty to trespassers or licensees other than to do them no willful, wanton, or reckless harm.  An electric company does not owe any legal obligation to trespassers, licensees, or volunteers upon its or their own property, other than to do them no willful or wanton harm, and is usually not liable for injuries resulting from defective wires, equipment, or appliances.

The violation of a statutory duty by an electric company with respect to the condition of property, imposed for the safety of the general public, may result in liability to one who is injured in consequence thereof, although the person is a mere licensee or even a trespasser.

On the question of whether one may escape liability for injuries inflicted upon the ground that the person injured is a trespasser as to a third person, some hold that one maintaining an instrument so dangerous as an un-insulated high-tension power line, in a place where people may be expected to be imperiled by it, shall not escape liability for injury actually inflicted because the injured person was a trespasser or mere licensee as far as the property owner was concerned.

A landowner owes a licensee a duty only to warn the licensee of any hidden dangers the owner knows or has reason to know of, if the licensee does not know or have reason to know of the dangers involved.  Therefore, the landowner does not owe a duty to the licensee to ensure that premises are safe for his or her visit[ii].

Trespassers are afforded the least amount of protection.  A ‘trespasser’ is a person who enters upon another’s land, without the landowner’s consent.  The landowner owes no duty to the trespasser except to refrain from injuring him by willful and wanton misconduct.  If, however, the landowner is aware of the presence of a trespasser, or if in the exercise of ordinary care he should know of their presence, he is bound to use ordinary care to prevent injury to them arising from active negligence[iii].
In some instances, where an accident occurred on a highway, bridge, or some similar place, some authorities have applied the rule allowing the company the benefit of the injured party’s trespass, while other authorities have followed the contrary rule.

The owner of land upon which an electric power provider has placed an electric power transformer pursuant to an easement granted by the owner has no duty to make the transformer safe for children playing in the vicinity of the transformer, where the easement does not permit access by the owner to the transformer, although the owner may owe some duty, such as the duty to warn the children not to play near the transformer.

In view of the deadly and insidious character of high-tension wires and in view of the curiosity of children, their ignorance, heedlessness of danger, and their known love of adventure, the courts have imposed upon persons maintaining electric wires a high degree of care to guard them so that they will not injure other children, the highest degree of care, a very high degree of care, or the like.  However, the courts cannot make electric companies insurers of the safety of children.  Thus, it has been said that since electricity is a dangerous force, anyone utilizing this force owes a duty to exercise reasonable care to prevent injury to children who are likely to come in contact with it.

Under the doctrine of “attractive nuisance,” a person cannot, even upon his/ her own premises, maintain a dangerous and unprotected agency, naturally attractive to, and from which injury may reasonably be expected to result to, very immature children, even though they are licensees or trespassers, where their presence on the premises and exposure to the danger may be reasonably anticipated and the children are too young to realize and appreciate the danger.

The application of the doctrine has been rejected where the features which constitute the attraction are things for the existence of which a power provider is not responsible.  However, liability may result from failure to take the necessary precautions relating to a mechanism used in stringing electric wires in a public street where children are known to congregate, and which is of such a nature as to allure children to play with it.

If there is a conflict of the evidence as to the attractiveness to children of an electrical appliance, the question is one of fact for the jury.  In several cases, the maintenance of electric wires is found not to constitute an attractive nuisance, although one maintaining a wire charged with a dangerous current of electricity in a place children are known to frequent should exercise proper precautions to prevent them from coming in contact with it.

The test often applied to wires is whether there is anything in the wires or in the manner in which they are strung to invite or allure children or others into a position where the current of electricity carried by them would be dangerous, or under the circumstances, to suggest the likelihood of contact with the wires by anyone.  A high-tension electric pole may constitute an attractive nuisance, even though children are not attracted to it per se.

An electrical substation in an abandoned building was not an attractive nuisance, because the substation was not in and of itself dangerous.  Transmission poles and trees on which children climb may also be considered to be attractive nuisances in certain instances.

[i] Butler v. City of Peru, 733 N.E.2d 912 (Ind. 2000).

[ii] Hervin v. Mortg. Elec. Registration Sys., 2008 U.S. Dist. LEXIS 107988, 8-9 ( E.D. Mich. Nov. 21, 2008).

[iii] Hervin v. Mortg. Elec. Registration Sys., 2008 U.S. Dist. LEXIS 107988 ( E.D. Mich. Nov. 21, 2008).

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