Russell McKie v. Consumers Energy Company ( 2023 )

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
RUSSELL MCKIE, UNPUBLISHED
September 21, 2023
Plaintiff-Appellant,
v No. 364690
Monroe Circuit Court
CONSUMERS ENERGY COMPANY, LC No. 2020-143029-NI
Defendant-Appellee.
Before: GADOLA, P.J., and CAVANAGH and K. F. KELLY, JJ.
PER CURIAM.
Plaintiff appeals as of right an order granting summary disposition in defendant’s favor in
this negligence action arising from the electrocution of plaintiff that occurred while he was power-
washing a home for a customer. We affirm.
I. BACKGROUND FACTS
On June 3, 2020, plaintiff filed his complaint alleging that on June 6, 2017, he was power-
washing the back of a home when “mist from the home came in contact with the low-hanging
power lines, which in turn caused electricity to flow through Plaintiff’s spraying wand, resulting
in Plaintiff becoming electrocuted.” According to plaintiff, defendant Consumers Energy
Company had previously been notified about the low-hanging power lines. Plaintiff asserted that
defendant 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.” And, plaintiff
alleged, defendant breached its 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.”
On August 25, 2021, defendant filed a motion for summary disposition arguing, in relevant
part, that plaintiff’s claim could only be based on premises liability law and was barred by the
open and obvious doctrine. Plaintiff opposed the motion arguing, in relevant part, that this was
not a premises liability matter because defendant was not the possessor of land. Following oral
arguments on the motion, the trial court agreed with defendant that the case was based on premises
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liability law and the power lines at issue were open and obvious, precluding liability. On
September 24, 2021, an order was entered consistent with the court’s holding, and plaintiff’s case
was dismissed. Plaintiff appealed to this Court and, by opinion issued on September 1, 2022, the
trial court’s order was vacated and the matter remanded for further proceedings. McKie v
Consumers Energy Co, unpublished per curiam opinion of the Court of Appeals, issued September
1, 2022 (Docket No. 358845). In brief, citing to the cases of Schultz v Consumers Power Co, 443
Mich 445; 506 NW2d 175 (1993) and Case v Consumers Power Co, 463 Mich 1; 615 NW2d 17(2000), this Court held that the action did not sound in premises liability; thus, the trial court erred
in granting summary disposition to defendant. Id. at 5-8.
Following remand, on November 8, 2022, defendant filed a motion for summary
disposition under MCR 2.116(C)(10), arguing that Michigan law does not recognize the alleged
duty upon which plaintiff predicated his claim, and further, plaintiff could not establish proximate
cause to sustain his claim. Relying on Schultz, 443 Mich 445, defendant argued that it owed no
duty to plaintiff under the circumstances of this case. Unlike the circumstances in Schultz, the
power lines at issue here had been in existence even before the house that plaintiff was power-
washing was built. The power lines and supporting structures were installed in 1949 and the house
abutting the utility easement was built in 1977. And contrary to the facts in the Schultz case, in
this case plaintiff admitted that there were no defects in the electrical equipment or power lines.
However, plaintiff claimed that defendant negligently failed to move the power lines after the
house was built. But, defendant argued, it had no duty to move the preexisting power lines and
supporting structures “in reaction to the later construction of the house.”
Defendant also noted that measurements taken by its representative, Jeffrey Chonko,
“found that the lowest hanging power line (the “Z phase” line) was at a vertical distance of 18 feet
4 inches above ground level and at a horizontal distance between 9 and 10 feet from the house.”
Plaintiff did not dispute those measurements and those “clearance distances fully comply with the
National Electrical Safety Code (NESC) specifications, which require no more than 14 feet 6
inches of vertical clearance . . . and 7 feet 6 inches of horizontal clearance.” Moreover, defendant
argued, plaintiff’s expert, Richard Buchanan, “acknowledges that these NESC distance
specifications were not violated.” Although plaintiff—a professional contractor with over 20 years
of experience—denied making any contact with the power lines, his own expert, Buchanan,
testified that the wand plaintiff was holding had to be within 6 inches of the power line for the
electrical arching described by plaintiff to have occurred. And plaintiff admitted both that he was
working within six to eight feet from the wire—in violation of MIOSHA regulations—and that he
knew the danger of working near power lines. In summary, defendant argued, it owed no duty to
plaintiff, whose injuries were not foreseeable and could not be anticipated. Defendant’s conduct
also could not be deemed a “proximate cause” of plaintiff’s injuries. The power lines were not
defective and were properly located: the cause of plaintiff’s injuries were his own actions.
Defendant is not charged with “absolute liability” and Michigan law does not require relocation of
preexisting power lines every time new construction is built by third parties. Therefore, defendant
was entitled to the summary dismissal of plaintiff’s claims. Defendant attached several exhibits
to its motion, including its utility easement documents; transcript excepts of Buchanan’s deposition
testimony; a report from James Heyl, P.E., a senior engineer at State-Wide Consulting &
Investigating; plaintiff’s response to defendant’s first request for admissions; transcript of
plaintiff’s deposition testimony; photographs of the house, power lines, and power-washing wand;
report of defendant’s representative Jeffrey Chonko; transcript of Chonko’s deposition testimony;
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excepts of regulations related to overhead power lines; transcript excepts of the deposition of Peter
Mulhearn, a design engineer for defendant; MIOSHA fact sheet; and a copy of Michigan
Administrative Code R 408.40115.
Plaintiff opposed defendant’s motion for summary disposition, arguing that defendant had
a duty to maintain and repair the power lines at issue and these power lines were within nine to ten
feet of the home plaintiff was power-washing—instead of at least 20 feet away as mandated by
defendant’s own standards. Although the power lines were in existence before the home was built,
plaintiff argued, defendant still had a duty to move the power lines to ameliorate the hazard.
Plaintiff further argued that, as testified by his expert, Buchanan, defendant should have
anticipated that most houses have vinyl siding and homeowners have their vinyl siding washed,
which is a reasonable activity; thus, power lines within ten feet of houses pose a safety hazard such
that injuries are foreseeable. Accordingly, defendant’s duty to repair and maintain their power
lines included the duty to move them. Further, defendant’s negligence in failing to relocate the
power lines was a proximate cause of plaintiff’s injuries. Therefore, defendant was not entitled to
summary disposition and its motion must be denied. Plaintiff attached several exhibits to his
responsive brief, including transcript excerpts of plaintiff’s deposition; transcript excerpts of the
deposition of defendant’s representative, Chonko; an affidavit of the homeowner, David Althaus;
transcript excepts of the deposition of Mulhearn, a design engineer for defendant; transcript
excerpts of the deposition of Buchanan; and copies of NESC Rule 012.
Defendant filed a reply to plaintiff’s brief, arguing that plaintiff was an experienced
workman who failed to take adequate precautions when working near power lines that were not in
disrepair; thus, the circumstances and plaintiff’s injuries were not foreseeable to defendant and it
owed no duty to plaintiff that was breached or that was a proximate cause of his injuries. And
although defendant did not violate any of its own policies or NESC, OSHA, or MIOSHA
requirements, even if it did, these regulations do not create any duties with regard to third parties.
As the Michigan Supreme Court has held, public policy precludes “a duty to relocate, insulate, or
de-energize power lines whenever third parties construct buildings near power lines[.]” Groncki
v Detroit Edison Co, 443 Mich 644, 661; 557 NW2d 289 (1996); see also Valcaniant v Detroit
Edison Co, 470 Mich 82, 87; 679 NW2d 689 (2004).
On December 21, 2022, the trial court held oral arguments on defendant’s motion for
summary disposition and the parties argued consistently with their briefs. Relying on the holdings
primarily set forth in Schultz, 443 Mich 445 and Groncki, 443 Mich 644, the trial court concluded
that defendant had no duty to relocate or insulate the power lines at issue; thus, defendant was
entitled to summary disposition. The court noted that multiple factors are considered when
determining whether a duty of care exists, including the relationship of the parties, and the nature
and foreseeability of the risk. In this case, the power lines were not in disrepair, they were in place
before the house was built, plaintiff was a professional power-washer, plaintiff was aware of the
hazards of power-washing near power lines, the power-washer wand he was using also had a
warning label regarding that danger, and public policy considerations expressed in case law (i.e.,
the need for electric power at reasonable cost and the significant cost and difficulty or impossibility
of moving thousands of miles of preexisting power lines so that they are not near structures) dictate
against imposing such a duty on defendant. Thereafter, an order was entered granting defendant’s
motion for summary disposition. This appeal followed.
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II. ANALYSIS
A. STANDARD OF REVIEW
We review de novo a lower court’s decision on a motion for summary disposition brought
under MCR 2.116(C)(10). Johnson v Recca, 492 Mich 169, 173; 821 NW2d 520 (2012). A motion
brought under MCR 2.116(C)(10) “tests the factual support of a plaintiff’s claim.” Spiek v Dept
of Transp, 456 Mich 331, 337; 572 NW2d 201 (1998). The moving party must identify the matters
that have no disputed factual issues, and has the initial burden of supporting its position with
documentary evidence. Quinto v Cross & Peters Co, 451 Mich 358, 362; 547 NW2d 314 (1996).
The party opposing the motion must then establish by evidentiary materials that a genuine issue of
disputed fact exists. Id. at 362-363. After considering the documentary evidence submitted in the
light most favorable to the nonmoving party, the court determines whether a genuine issue of
material fact exists to warrant a trial. Walsh v Taylor, 263 Mich App 618, 621; 689 NW2d 506(2004).
B. DUTY OF CARE
To prove a negligence claim, a plaintiff must establish that the defendant owed the plaintiff
a legal duty, the duty was breached, the plaintiff suffered damages, and the defendant’s breach was
a proximate cause of the plaintiff’s damages. Loweke v Ann Arbor Ceiling & Partition Co, LLC,
489 Mich 157, 162; 809 NW2d 553 (2011). The dispositive issue in this case is whether defendant
owed plaintiff a duty of care, i.e., was under a legal obligation to act for plaintiff’s benefit—which
presents a question of law. See id.; see also Dyer v Trachtman, 470 Mich 45, 49; 679 NW2d 311(2004); Buczkowski v McKay, 441 Mich 96, 100-101; 490 NW2d 330 (1992). In other words, for
plaintiff to establish his case against defendant, plaintiff must show that defendant owed a legal
duty to plaintiff. See Beaty v Hertzberg & Golden, PC, 456 Mich 247, 262; 571 NW2d 716 (1997).
In making the determination whether a duty of care exists, courts consider a multitude of
factors, including whether there is a sufficient relationship between the plaintiff and the defendant,
the nature of the risk, and the foreseeability of the risk. Schultz, 443 Mich at 450. As we explained
in our previous opinion, McKie, unpub op at 5-6, our Supreme Court in Schultz 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.” Schultz, 443 Mich at 454. That is, the Schultz Court held, “compelling reasons
mandate that a company that maintains and employs energized power lines must exercise
reasonable care to reduce potential hazards as far as practicable.” Id. at 451. And, “pursuant to
its duty, a power company has an obligation to reasonably inspect and repair wires and other
instrumentalities in order to discover and remedy hazards and defects.” Id.However, as we also previously noted, McKie, unpub op at 7, the Schultz Court clarified
that this duty does not impose “a rule of absolute liability.” Schultz, 443 Mich at 454. Rather, the
issue whether a duty is owed under a particular set of circumstances also requires consideration of
the foreseeability variable. Id. at 451-452. The Schultz Court explained:
Those engaged in transmitting electricity are bound to anticipate ordinary
use of the area surrounding the lines and to appropriately safeguard the attendant
risks. The test to determine whether a duty was owed is not whether the company
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should have anticipated the particular act from which the injury resulted, but
whether it should have foreseen the probability that injury might result from any
reasonable activity done on the premises for business, work, or pleasure. [Id. at
452.]
The Schultz Court noted that “[a] plaintiff need not establish that the mechanism of injury was
foreseeable or anticipated in specific detail. It is only necessary that the evidence establishes that
some injury to the defendant was foreseeable or to be anticipated.” Id. at 452 n 7.
In this case, plaintiff claimed that defendant owed him a duty of care and the scope of that
duty included moving the power lines to eliminate the potential hazard of electrocution—which
was a foreseeable harm confronted during routine maintenance like power-washing the nearby
house. We disagree.
Plaintiff testified in his deposition that he had worked in the painting and power-washing
business for about 25 years and owned the power-washing business. When plaintiff arrived in the
backyard of the home he was power-washing, he saw that the power lines were close to the house
and they “looked concerning” to him. The wires were hanging over the top of the cement porch
and were hung on an angle running toward the corner of the house, where the electricity fed into
the house. Plaintiff was using a power-washing spray wand that was about eight or nine feet long,
but could extend to about 12 or 13 feet. While spraying the back of the house, plaintiff was keeping
the nozzle end about four to six inches away from the house. He was power-washing the back of
the house, at the “very top” of the second-story and saw that the “water was shooting towards the
wires because it was hitting – you know I’m shooting on a 45-degree angle toward the house, it’s
hitting that gutter, which didn’t have much of a soffit.“ Plaintiff further testified: “I don’t know if
that caused more, you know, heat molecules in the way it – when it was hitting the siding and then
hitting the gutter and coming off of it toward the wires, the water molecules were coming towards
that wire, and I was just thinking, you know, I want to get out of here, get this – you know, I was
trying to get that part done so I could get away from that corner.” Plaintiff was standing on the
back porch when he saw electricity come from the wire, through the water molecules, to the gutter,
and then straight to him. He was electrocuted for about eight or nine seconds.
On the day of the incident, defendant’s electric field leader, Jeffrey Chonko, investigated
the scene, took measurements, and spoke with the homeowner, David Althaus.1 He measured the
distance from the ground at the base of the home to the closest energized wire as nine to ten feet.
He took other measurements of the lines and they all “were within spec.” Chonko did not see
anything wrong when he was in the yard—nothing hazardous and no violations. But defendant’s
engineer for high-voltage distribution lines, Mulhearn, testified in his deposition that, prior to this
accident, defendant was planning to relocate the power lines at this location to conform to
1
Althaus submitted an affidavit stating that, at some time prior to plaintiff’s accident, a power line
closest to the back of his house had fallen down. He also averred that he and his neighbors had
complained to defendant about the power lines being too close to their houses and requested that
they be moved.
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defendant’s current new-build standards which was a 20-foot separation from the power line to
any building.2 In any case, as defendant’s expert engineer, James Heyl from State-Wide
Consulting and Investigating, stated in his report, there were no violations of code with respect to
defendant’s power lines at the time of plaintiff’s accident. Heyl opined that plaintiff was
electrocuted when the water in the spray wand or hose became energized and transmitted an
electrical current into plaintiff’s hand, through his body, and into the ground.
Plaintiff’s expert, Richard Buchanan, testified that he also believed plaintiff was
electrocuted when the electricity from the power line traveled through the water or mist to the
spray wand and through plaintiff’s body into the ground. Plaintiff’s power-washing wand had a
very small pinhole burn mark on it which was “evidence that there was an arc that initiated the
current flow from the energized line to the wand.” Buchanan believed that 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. Buchanan testified that defendant did not violate the NESC with respect to the
positions of the vertical or horizontal line placement; rather, defendant violated Rule 012C3 of the
NESC because after the housing development was built—which was almost 30 years after the
power lines were installed—defendant should have noticed and remedied the safety hazard by
moving the power lines further away from the house. Buchanan testified that defendant would
have been aware that this housing development abutted up against their power lines and should
have moved the power lines.
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. 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 mist of water created by
plaintiff’s actions led to his electrocution. 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. Defendant could not have reasonably foreseen the
circumstances that led to plaintiff’s injuries. As our Supreme Court explained in Schultz, 443 Mich
at 451, “a company that maintains and employs energized power lines must exercise reasonable
care to reduce potential hazards as far as practicable.” It is not practicable to require a company
that maintains and employs energized power lines to foresee every conceivable potentially
2
We note that the imposition of a legal duty based on a defendant’s internal policies is contrary to
public policy, however, because such a rule would encourage the abandonment of policies enacted
for the protection of others so as to avoid future liability. See Buczkowski, 441 Mich at 99 n 1.
3
The NESC Rule 012C states: “For all particulars not specified, but within the scope of these
rules, as stated in Rule 011A, construction and maintenance should be done in accordance with
accepted good practice for the given local conditions known at the time by those responsible for
the construction or maintenance of the communication or supply lines and equipment.”
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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.
Plaintiff argues on appeal that, according to the holding in Schultz, defendant had a duty to
plaintiff because the power line was defective as evidenced by the fact that it had fallen down at
some previous time. Plaintiff’s logic is hard to follow because the fact that the power line had
fallen down at some time in the past had nothing to do with the fact that plaintiff was electrocuted
when he continued to spray water from his power-washing wand within six inches of an energized
electrical line despite seeing that the water was going toward those lines. Plaintiff also argues that
the trial court incorrectly relied on the fact that he was a professional power-washer to determine
that defendant owed no duty of care to him. But in Groncki, 453 Mich at 657, our Supreme Court’s
foreseeability analysis with respect to whether a duty was owed, noted that the electric company
in that case “could not have reasonably foreseen that a skilled workman, with full knowledge of
the power lines, would bring a crane into contact with those power lines.”4 The Groncki Court
specifically distinguished a “homeowner unfamiliar with the dangers of electric lines” from “an
experienced workman who was fully aware of the presence of the wires” and associated dangers,
and concluded that it was not foreseeable to the electric company that the experienced workman
would confront the hazard, and thus, no duty was owed. Id. at 659. And, in this case, plaintiff
testified in his deposition that he had been in the power-washing business for about 25 years and
understood the dangers posed by the power lines.5
But plaintiff argues that this case is more factually similar to the facts in Schultz, which
involved a homeowner who was electrocuted when an electric current “arced” from a power line
to an aluminum ladder that was in use. See Schultz, 443 Mich at 448-449 & 448 n 2. In that case,
though, the power line was dilapidated and frayed—which caused the arc from the wire to the
ladder. Id. at 448, 453. In this case, the power line was not in disrepair; rather, the spraying of
water from a power-washing wand within six inches of an energized electrical line caused the
arcing that resulted in electrocution. While it was foreseeable that someone performing routine
maintenance on a home near a dilapidated power line could be injured by that power line, id. at
453, such is not the case here.
4
The Groncki case “consolidated three lawsuits brought against [Detroit] Edison by individuals
who were injured when equipment they were using outdoors came into contact with overhead
power lines.” Valcaniant, 470 Mich at 86-87.
5
Plaintiff testified that he knew the power lines were behind him and “definitely knew that there
was a huge amount of power behind me . . . . I been doing it for 20 years, I know better than to
mess around with that stuff that was behind me.”
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In conclusion, the trial court properly granted defendant’s motion for summary disposition
because plaintiff’s injury was not foreseeable to defendant; therefore, defendant had no duty to
plaintiff that included moving the power lines at issue.
Affirmed.
/s/ Michael F. Gadola
/s/ Mark J. Cavanagh
/s/ Kirsten Frank Kelly
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