Practice and Procedure

Pleadings should be construed more favorably for the pleader with regard to pleadings in actions for electrical injuries.  Every reasonable intendment and presumption must be made in favor of the pleader.  Therefore, where two permissible constructions of a complaint are presented, the court should adopt the one which supports the cause of action rather than another which would tend to show no legal ground of action[i].

Contributory negligence, like other actions based on negligence, should be specially pleaded.  Contributory negligence is an affirmative defense.  Therefore, contributory negligence should be pleaded with particularity and no other acts other than those pleaded can be proved on trial[ii].

As a general rule, persons cannot recover damages for property that they do not own[iii].  In actions against gas companies based on injury due to escape of gas, the plaintiff should allege facts that impose a legal duty upon the defendant gas company in the plaintiff’s favor and also should allege a breach of such duty.  A complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his/her claim which would entitle him to relief[iv].

Since the liability of an electric company, gas company, or steam company for a personal injury is not that of an insurer, it is based on its negligence proximately causing the injury.  Therefore, the usual rule as to the burden of proof in actions for negligent injuries generally applies.  In actions against gas companies for injuries resulting from an escape or explosion of gas, the burden ordinarily rests upon the plaintiff to prove that the company has failed to exercise the proper degree of care to prevent the escape of gas[v].

Suits against electric companies resulting from injuries or death from electric wires, equipment, or appliances frequently afford an opportunity for the well-established doctrine of res ipsa loquitur.  However, before applying the doctrine of res ipsa loquitur, certain requirements should be fulfilled.

The cases of the Supreme Court of Appeals of West Virginia certainly apply the rule of res ipsa loquitur and hold that when injury comes to a person by contact with an electric wire at a place where he has a right to be, and where there should be good insulation, it is a case of negligence rendering the company prima facie liable.  Therefore, people should go about over the face of the earth and those who use dangerous things should carry the burden, however heavy or costly, of so using them as to save life[vi].

The general rules of evidence regarding admissibility are applicable to actions imposing liability on electricity providers, gas or steam, or to others who are liable for injuries resulting from the use of these energy sources.  The relevant rule of evidence is a liberal one and the relevancy requirement is satisfied if the evidence has any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without that evidence[vii].

Statutory negligence is not predicated upon any test for ordinary or reasonable care, but rather is founded on the defendant’s violation of a specific requirement of law.  An unexcused or unjustified violation of a duty dictated by a statute is negligence per se[viii].

A directed verdict is proper where there is no evidence that the defendant owed a duty to the plaintiff the violation of which would result in liability to the plaintiff.  Similarly, the court may also withhold from the jury the issue of contributory negligence where there is nothing to show about the issue of contributory negligence.

Generally, instructions in actions against electric companies are governed by the normal rules applied in civil actions.  An objection to the mere form of an instruction should be specific.  Instructions, in order to be correct, must properly state the substantive law with regards to liability for electrical injuries.

[i] Highway Trailer Co. v. Janesville Electric Co., 178 Wis. 340 (Wis. 1922).

[ii] Blalack v. Blacksher, 11 Ala. App. 545, 548 (Ala. Ct. App. 1914).

[iii] Anderson v. BNSF Railway Co., 2010 Mont. Dist. LEXIS 84 (Mont. Dist. Ct. 2010).

[iv] Fin. Sec. Assur., Inc. v. Stephens, Inc., 500 F.3d 1276, 1282 (11th Cir. Ga. 2007).

[v] Parkinson v. California Co., 255 F.2d 265, 269 (10th Cir. Wyo. 1958).

[vi] Runyan v. Kanawha Water & Light Co., 68 W. Va. 609 (W. Va. 1911).

[vii] Great Am. Ins. Co. v. Moye, 2010 U.S. Dist. LEXIS 83320 (M.D. Fla. July 19, 2010).

[viii] Lindsey v. DeGroot, 898 N.E.2d 1251, 1260 (Ind. Ct. App. 2009).


Inside Practice and Procedure