The rule that the person distributing electric current is bound to exercise a degree of care commensurate with the dangers involved, is widely accepted and recognized by the courts in cases involving injury to property or injury or death to persons from electric wires maintained in or near trees.
Proper care shall be taken to insulate dangerous wires in or near trees to prevent the escape of high electrical currents upon the property of the customers or to warn them about such safeguarding measures and make its installation a prerequisite to their receiving or continuing to receive service.
Statutes shall impose the duty to trim or maintain a certain clearance between trees and the wires, on an owner of electric wires or distributor of electricity. Even though a tree near a power line running along a street is upon private property, the owner of the line may be guilty of negligence when a limb from the tree falls on the wires. If a tree is in such close proximity to a pole line that wind may cause it to fall across the wires, the failure to provide against such eventuality is negligence[i].
The electric utility companies also has the duty to take notice of a dangerous condition created by the maintenance of high-voltage, uninsulated wires through thick foliage of a tree near the highway. The exercise of the highest degree of care requires trimming around highly charged wires to isolate them so as to lessen the opportunity of persons to come in contact with them, wherever their presence may reasonably be expected[ii].
Where the danger presented by uninsulated overhead electric wires that run across a property above an easement held by an electric utility company, and through a tree, is open and obvious, the owner of the property subject to the easement shall not have any duty to warn of the danger, and shall not be liable for failing to provide such a warning[iii].
Where a child is injured or killed by coming in contact with electric wires while climbing a tree, an electric company is not an insurer of the child’s safety, and liability requires a showing that the one maintaining the wires owed the child a duty and did not perform such duty.
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[iv].
Where an alleged injury from an electric current was sustained and the question arises whether the object was attractive enough to cause a child to climb into a position of peril and if such negligence was the proximate cause of the injury to the child is, it is a fact to be determined by the jury.
In some cases involving injuries to a child due to contact with wires running through trees, the attractive-nuisance doctrine is applicable. However, if the child is not a trespasser when climbing a tree, this doctrine shall not be applicable and the liability of the person who maintains the wires depends upon the ordinary rules of negligence.
The ordinary rules of contributory negligence and assumption of risk have been applied in the situation where an adult climbing a tree comes in contact with electric wires maintained in or near the branches, and recovery has sometimes been denied on the ground that such a person failed to exercise due care for his or her own safety under the circumstances.
The rule as to the contributory negligence of one who purposely comes in contact with a wire which the person knows to be electrified 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 guilty of contributory negligence 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. In these cases, the question of contributory negligence is ordinarily one of fact of the jury[v].
Similarly, the question whether a young child was guilty of contributory negligence when climbing a tree and coming into contact with an electric wire is usually a question of fact to be determined by the jury. The standard of care applied to a child regarding injuries 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 of the dangers attending contact with electric wires shall not apply to immature children.
In most cases, the fact that the electric lines were maintained in or near trees is important in determining liability for injury or death resulting when a person working, or otherwise in the area, used or raised a tool or other object so as to touch the line and receive an electric shock, and such accident is considered reasonably foreseeable. In such circumstances, the power company shall be held liable. However, if the negligence of the power company was not the proximate cause of the accident, liability shall be denied.
In order for a plaintiff to make a submissible case of negligence, a plaintiff must establish that there was a duty and that the breach of that duty was the proximate cause of his injury. Whether a duty exists is purely a question of law. 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[vi].
Where dangerous electric lines are constructed in or near a tree and wires are broken or sag to the ground as a result of the fall of the tree or a branch, the company or person responsible for the wires has frequently been held liable for injuries resulting therefrom. An electric company that suffers 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[vii].
Therefore, an electric company is required to anticipate all eventualities that may result in the falling of a tree or its limb and thereby striking its wires.
[i] Irelan-Yuba Gold Quartz Mining Co. v. Pacific Gas & Electric Co., 18 Cal. 2d 557 (Cal. 1941).
[ii] Erbes v. Union Electric Co., 353 S.W.2d 659, 664 (Mo. 1962).
[iii] Clementoni v. Consolidated Rail Corp., 2007 NY Slip Op 3792, 2 (N.Y. 2007).
[iv] Woodis v. Oklahoma Gas & Elec. Co., 1985 OK 62 (Okla. 1985).
[v] Baker v. Board of Trustees, 133 Cal. App. 243, 249 (Cal. App. 1933).
[vi] Hoffman v. Union Elec. Co., 176 S.W.3d 706, 709 (Mo. 2005).
[vii] State use of Hoffman v. Potomac Edison Co., 166 Md. 138 (Md. 1934).