A defendant utility company owed no duty to an experienced handyman who was electrocuted when he was power washing a customer’s home, a Michigan Court of Appeals panel has held, affirming the trial court’s grant of summary disposition in favor of the defendant.
“Under the circumstances presented in this case, we agree with the trial court that defendant was entitled to summary disposition because it did not owe a duty to plaintiff that included moving the power lines at issue,” the panel explained. “More particularly, it was not foreseeable to defendant that an experienced power-washer, who saw the location of the power lines and understood that they were energized, would continue to spray water at the house, and in the same manner, despite seeing that the water was ricocheting off the house and ‘shooting towards the wires.’”
The unpublished decision, McKie v. Consumers Energy Co. (MiLW 08-107241, 8 pages), was issued by Judges Michael F. Gadola, Mark J. Cavanagh and Kirsten Frank Kelly.
Electrocuted
Russell McKie was a self-employed handyman who did painting and power-washing. He arrived at a customer’s home around 3 p.m. in June 2017 to begin power washing. On this particular day, McKie said the weather was good and it was light outside.
McKie saw power lines in the back of the house; wires ran in the air at an angle towards one of home’s back corners. The power lines were in a utility easement held by Consumers.
In his deposition, McKie said the closest electrical wire was “[d]efinitely … the closest thing I’ve ever seen to a house” and that “something wasn’t right.” But he added that he believed “the electrical company knew better” and that “[i]f they would put a pole that close to someone’s house, that someone should be able to wash it, like I do everyone else’s house.”
McKie started to power wash the siding under the gutter at the top of the second story. To get a good spray, he used a long spray wand with a metal nozzle. The wand had been extended to roughly 12-13 feet, but he planned to use a shorter wand when he finished the upper section of the house to avoid the power lines as much as possible.
McKie kept the nozzle about 6 inches away from the house to get the proper pressure to clean. The power line was behind him, but he estimated the wand was roughly 6-7 feet away from it.
The water hit the unwrapped wires and McKie was electrocuted.
McKie eventually was able to let go of the wand. His left foot was on fire, which a neighbor helped extinguish. He was taken by ambulance to the hospital, and McKie was able to return to work in about a week.
First appeal
According to McKie, Consumers had been notified before about the low-hanging power lines. He brought a complaint against Consumers, claiming it had a duty “to safely maintain and ensure that powerlines are positioned in a manner and location to protect those near the line, and to inspect, repair, insulate and protect all persons conducting reasonably foreseeable activity from injury from the powerlines.”
He claimed Consumers breached that duty “by failing to properly place their powerlines in a location that would ensure the safety of others conducting reasonably foreseeable activity and/or by negligently failing to move the powerlines upon express notice of the danger of their lines.”
Consumers countered with a motion for summary disposition, arguing in part that McKie’s claim was based on premises liability and was barred by the open and obvious doctrine.
The Monroe County Circuit Court granted the defendant’s motion and McKie appealed.
The Michigan Court of Appeals, looking to Schultz v. Consumers Power Co. and Case v. Consumers Power Co., said the matter didn’t sound in premises liability. It vacated the lower court’s order in September 2022 and remanded for further proceedings.
Back to the trial court
Consumers again filed a motion for summary disposition. Relying on Schultz, the utility claimed it owed no duty to McKie because his injuries weren’t foreseeable and couldn’t be anticipated. Nor was the company’s conduct a “proximate cause” of McKie’s injuries; his own actions were the cause.
Consumers also argued that it isn’t charged with “absolute liability” and Michigan law doesn’t mandate relocation of preexisting power lines every time new construction is built by third parties.
McKie responded that Consumers indeed had a duty to maintain and repair the power lines. Here the power lines here were within 9-10 feet of the home rather than the 20-foot distance mandated by Consumers’ own standards.
After oral arguments in December 2022, the trial court concluded that Consumers was entitled to summary disposition. McKie appealed a second time.
Current appeal
In its prior decision, the panel noted that the Schultz court recognized that “a relationship exists between an electric utility company and the public with respect to its high-voltage power lines such that ‘the company must exercise reasonable care to protect the public from danger.’”
They also pointed out that Schultz “clarified that this duty does not impose ‘a rule of absolute liability.’” Instead, the issue of whether a duty is owed under a specific set of circumstances “also requires consideration of the foreseeability variable.”
Here, McKie argued that Consumers owed him a duty of care; the scope of that duty included moving power lines to remove the potential danger of electrocution, a foreseeable harm during routine maintenance such as power washing a nearby home.
The panel disagreed.
“The mist of water created by plaintiff’s actions led to his electrocution,” they wrote. “This is not a case where the power lines were in disrepair or frayed; rather, as plaintiff’s own expert testified, the end of plaintiff’s spray wand had to have been within six inches of the energized electrical line to initiate that arc in the spray mist that resulted in plaintiff’s electrocution.”
The judges also said Consumers couldn’t have reasonably foreseen the circumstances that led to McKie’s injuries.
“As our Supreme Court explained in Schultz, ‘a company that maintains and employs energized power lines must exercise reasonable care to reduce potential hazards as far as practicable,’” the panel wrote. “It is not practicable to require a company that maintains and employs energized power lines to foresee every conceivable potentially hazardous human act that might result in electrocution — including the spraying of water from a power-washing wand within six inches of an energized, non-defective electrical line.”
The judges affirmed the trial court’s grant of summary disposition for Consumers.
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