Louisville Gas & Electric Co. v. Roberson , 2006 Ky. LEXIS 292 ( 2006 )

WINTERSHEIMER, Justice,

concurring.

I concur in the result achieved by the majority opinion but wish to state my reasons separately.

The sole issue on appeal is whether LG & E owed a duty of care to a third party pedestrian to repair and maintain street lamps that it leased to the Jefferson County Fiscal Court.

Although the precise issue of whether LG & E has a duty to pedestrians for repair and maintenance of street lamps is a matter of first impression, the inquiry itself is not distinct from the general rules of negligence. The question of whether LG & E has a duty of care is a question of law, and in resolving an inquiry of duty, the Court is making a policy determination. Mullins v. Commonwealth Life Ins. Co., 839 S.W.2d 245 (Ky.1992). This Court’s previous cases have established a universal duty of care, providing that “every person owes a duty to every other person to exercise ordinary care in his activities to prevent foreseeable injury.” Grayson Fraternal Order of Eagles v. Claywell, 736 S.W.2d 328, 332 (Ky.1987). In order for the injury to be foreseeable, it is not necessary that the defendant should have been able to anticipate the precise injury sustained, or to foresee the particular consequences, but only that the injury is a natural and probable consequence of the negligence. Eaton v. Louisville & N.R. Co., 259 S.W.2d 29 (Ky.1953).

In the present case, LG & E contracted with JCFC to maintain the street lamps from dusk to dawn every night. The faulty street lamp near the accident scene illuminated an area containing a residential apartment complex, a five lane highway, and a public high school. Furthermore, LG & E had no formal policies or procedures for monitoring the street lamps, and instead relied exclusively on citizen complaints. Because the street lamps function to illuminate an area between an apartment complex and a high school, it is reasonably foreseeable that a pedestrian could be struck by a car if the area was darkened as a result of LG & E’s failure to keep the street lamps working properly. Because Shytone’s death was a foreseeable consequence of LG & E’s failure to maintain the street lamps, LG & E had a duty of care to prevent that injury.

The universal duty to prevent foreseeable injury is a duty of ordinary care. While the Circuit Court placed significance on the common law duty of utmost care required by an electric company in the maintenance of power lines, this Court has explained that because of the danger involved, ordinary care is the highest degree of care in the context of power line maintenance. Green River Rural Electric Co-op. Corp. v. Blandford, 306 Ky. 125, 206 S.W.2d 475 (1947). This higher degree of care is not to the exclusion of the universal duty of ordinary care, but rather an extension of ordinary care in dealing with extraordinarily dangerous instrumentalities. Id. In other words, the common law imposes a universal duty of ordinary care to prevent foreseeable injury, which also manifests as a duty to use the highest degree of care in the maintenance of dangerous power lines, but not to the exclusion of using ordinary care to prevent other types of foreseeable injuries.

Furthermore, because LG & E voluntarily assumed and was compensated for the duty of maintaining and repairing the street lamps, this Court has explained that LG & E would also assume a duty to protect third parties when (1) the failure to exercise reasonable care in performing the undertaking increases the risk of harm; (2) the duty undertaken is already owed to the third person by another; or (3) the third person relies on the undertaking. Grand Aerie Fraternal Order of Eagles v. Carneyhan, 169 S.W.3d 840 (Ky.2005). In this implicit adoption of § 324A of the Second Restatement of Torts, this Court explained that Roberson would have to demonstrate that LG & E undertook the maintenance of the street lamps for the protection of third persons, and that LG & E’s negligent performance of that task increased the risk of harm to Shytone or caused him to suffer harm because either JCFC or his parents relied on LG & E to maintain the street lamps. Ostendorf v. Clark Equipment Co., 122 S.W.3d 530 (Ky.2003).

LG & E cites to cases from other jurisdictions that found no liability to third parties for a faulty street lamp to argue that the appropriate comparison is between the risk of harm between the maintenance of the street lamps negligently performed and the risk of harm without street lamps. As Florida’s Supreme Court explained, this comparison is flawed because “the plaintiffs did not allege that [the Defendant] negligently installed the streetlights on an otherwise un lighted street. Rather, they allege that [the Defendant] negligently maintained the streetlights on an otherwise lighted street.” Clay Electric Cooperative v. Johnson, 873 So.2d 1182, 1187 (Fla.2003). The focus of the comparison is between the negligent undertaking (contract for street lamp maintenance) and no undertaking (no contract for street lamp maintenance). In Clay, an adolescent was struck and killed while walking to a bus stop on or near a public street that was darkened because of a faulty street lamp. In that case, Clay Electric had been contracted to maintain the street lamps and the faulty lamp had been inoperable for at least two months. The court found that this raised a jury question as to whether Clay Electric’s failure to repair the street lamp increased the risk of harm to the adolescent, therefore disposition on Summary Judgment would be inappropriate.

Furthermore, the court rejected Clay Electric’s assertion that the adolescent’s caregiver did not prove they relied on Clay Electric’s undertaking of maintaining the street lamps. The court specifically noted that the record lacked any evidence that the adolescent’s caregiver knew the street lamp was faulty, and raised a jury question as to whether the caregiver declined other precautions in reliance on Clay Electric’s maintenance of the street lamps.

Although some facts in the present case differ from the facts in Clay, the duty of the electric company that voluntarily contracted to maintain street lamps for the benefit of third party pedestrians remains the same. LG & E did owe a duty to exercise ordinary care in maintaining the street lamps. Because that is the issue upon which the motion for Summary Judgment was granted, this case should be remanded. Whether LG & E breached its duty and whether Shytone’s death was a proximate cause of LG & E’s alleged breach are not before this Court and are matters for a jury to decide.

Because LG & E owed a duty of care to pedestrians to maintain and repair the street lamps, the Court of Appeals should be affirmed.

McANULTY, J., joins.