www.rbs2.com/uh.pdf 10 Jun 2011 Page 1 of 13 Electricity is Neither Ultrahazardous Nor Abnormally Dangerous Copyright 2011 by Ronald B. Standler No copyright claimed for works of the U.S. Government. No copyright claimed for quotations from any source, except for selection of such quotations. Keywords abnormally dangerous, distribution, electricity, high voltage, law, legal, strict liability, transmission, ultrahazardous Table of Contents Introduction . 1 Overview . 2 Cases Involving Electricity . 2 My Analysis . 10 Conclusion . 12 Introduction A number of plaintiff’s attorneys in the USA have argued that distribution of electricity is an ultrahazardous activity, for which strict liability (i.e., tort liability without proving negligence, in other words: without breach of a duty) should apply. This essay explains why they are wrong and cites many cases. disclaimer This essay presents general information about an interesting topic in law, but is not legal advice for your specific problem. See my disclaimer at http://www.rbs2.com/disclaim.htm . From reading e-mail sent to me by readers of my essays since 1998, I am aware that readers often use my essays as a source of free legal advice on their personal problem. Such use is not appropriate, for reasons given at http://www.rbs2.com/advice.htm . www.rbs2.com/uh.pdf 10 Jun 2011 Page 2 of 13 I list the cases in chronological order in this essay, so the reader can easily follow the historical development of a national phenomenon. If I were writing a legal brief, then I would use the conventional citation order given in the Bluebook. Overview In England in the year 1868, the famous case of Rylands v. Fletcher, L.R. 3 H.L. 330, established strict liability (i.e., tort liability without proving negligence) for abnormally dangerous activities. That case involved constructing a water reservoir above an abandoned coal mine, and the water leaked into the abandoned mine and then flooded plaintiff’s adjacent mine. The doctrine of strict liability was extended to storage or use of explosives in inhabited areas, which is now the leading example. In the USA, the doctrine of strict liability was expressed in the RESTATEMENT FIRST OF TORTS, §§ 519-520 (1938) under the label “ultrahazardous activity”. The RESTATEMENT SECOND OF TORTS, § 520 (1977) uses the label “abnormally dangerous activities”. Many modern judges continue using the label “ultrahazardous”, even when applying the Second Restatement of Torts. As the labels “ultrahazardous” and “abnormally dangerous” imply, there must be a great risk of harm from the activity. Such activities might be banned in inhabited areas, except that the activities are desirable to society (e.g., blasting to demolish a building downtown). Cases Involving Electricity On 7-8 June 2011, I searched all state and all federal cases in Westlaw for the query: (electric! high-voltage) /s (ultra-hazardous (abnormally +1 dangerous)) Most of the 129 cases found with this broad query were irrelevant. I also followed many citations in cases, to obtain additional cases that do not satisfy the above query. On 9 June 2011, I searched all state and all federal cases in Westlaw for the query: ((electric! power) +1 (utility company)) /s ((strict absolute) +1 liability) While this second broad search found 187 cases, it produced few relevant cases not found in the previous search. Most of the newly found relevant cases in the second broad search were before the year 1980. I also made additional searches to find more cases before the year 1980. The following is a list of cases I consider most relevant since the year 1950, in chronological order. Note that in the 1950s and 1960s it was already well established in the USA that proof of negligence was required before an electric utility could be held liable for injury from electricity. www.rbs2.com/uh.pdf 10 Jun 2011 Page 3 of 13 • Hamilton v. Laclede Electric Co-op., 294 S.W.2d 11, 15 (Mo. 1956) (“An electric utility is not an insurer of the safety of persons. Its liability rests upon the rules of negligence. State ex rel. Kansas City L. & P. Co. v. Trimble, 315 Mo. 32, 285 S.W. 455, 458, 49 A.L.R. 1047 [(Mo. 1926)]; Howard v. St. Joseph Transmission Co., 316 Mo. 317, 289 S.W. 597, 601[3, 4], 49 A.L.R. 1034 [(Mo. 1926)]; Brubaker v. Kansas City El. L. Co., 130 Mo.App. 439, 449, 110 S.W. 12, 15 [(Mo.App. 1908)].”); • Hall v. Lorain-Medina Rural Electric Co-op., Inc., 148 N.E.2d 232, 234 (Ohio App. 1957) (“The Electric Company is certainly liable for its negligence, but it is not an insurer of the safety of those who are injured by coming into contact with its wires. See: 29 C.J.S. Electricity § 38.”); • McKenzie v. Pacific Gas & Elec. Co., 19 Cal.Rptr. 628, 631 (Cal.App. 1962) (Maintenance of electric power lines is not an ultrahazardous activity, cites Beresford v. Pacific Gas & Electric Co., 290 P.2d 498, 502 (Cal. 1955).). McKenzie was overruled on other grounds, DiMare v. Cresci, 23 Cal.Rptr. 772, 776, 373 P.2d 860, 864 (Cal. 1962); • Hercules Powder Co. v. DiSabatino, 188 A.2d 529, 533 (Del. 1963) (“He [i.e., ‘an owner of land who has had erected and maintains on his land a power line of uninsulated wires carrying a high voltage of electricity’] is liable for injuries from electricity caused by his negligence, but he is not an insurer of the safety of the public.”); • Bosley v. Central Vermont Public Service Corp., 255 A.2d 671, 673 (Vt. 1969) (“Electrical companies are not insurers of the safety of the public. 29 C.J.S. [Electricity], § 38, page 1057. .... The transmission of electric current in this day and age is a usual and normal practice for the benefit of the community.”); • Brigham v. Moon Lake Elec. Ass'n, 470 P.2d 393, 395 (Utah 1970) (“This [danger] does not mean that one who supplies electricity to the public is strictly liable without regard to fault,[footnote omitted] as may be the case of one who keeps a wild and ferocious animal. The reason for the distinction lies in the use to which the dangerous thing is to be put. Our civilization could not exist without electricity, and those who supply it are benefactors to mankind. Therefore, the high degree of care required may be said to be reasonable care in view of the great potential danger involved. The amount of care to avoid negligence always varies with the risk of harm which is known or under the circumstances ought to be known to exist.[footnote omitted] We, therefore, reject the contention of the plaintiff that the defendant in this case is absolutely liable to the plaintiff regardless of negligence.”); www.rbs2.com/uh.pdf 10 Jun 2011 Page 4 of 13 • Wertz v. Holy Cross Electric Ass'n, 512 P.2d 286, 288 (Colo.App. 1973) (“Although held to a high degree of care because of the inherent danger of electricity, a power company is not an insurer and may be held liable for injuries or death resulting from contact between an electric line and a crane only if the power company is shown to be negligent and its negligence proximately caused the injury. Currence v. Denver Tramway Corp., 132 Colo. 328, 287 P.2d 967 [Colo. 1955], is directly in point.”); • Wood v. Public Service Co. of New Hampshire, 317 A.2d 576, 579-580 (N.H. 1974) (“Although the generating and distribution of electricity has been held a dangerous activity, electric companies have not been held strictly or absolutely liable for injuries suffered from contact with its power lines. Eastern Shore Pub. Serv. Co. v. Corbett, 227 Md. 411, 425, 177 A.2d 701, 709 (1962); 26 Am.Jur.2d Electricity, Gas, And Steam § 39 (1966); see Annot., 69 A.L.R.2d 9, 15 (1960). .... No compelling reason of policy or logic has been advanced to apply strict liability to electric companies.”); • Plourde v. Hartford Elec. Light Co., 326 A.2d 848, 851-852 (Conn.Super. 1974) (“Repeatedly, it has been stated that the power company does not act at its peril and is not an insurer. [citing ten cases] .... The overwhelming pertinent case authority as well as the analogous statements of our Supreme Court which pertain to the duty of care required to be exercised by an electric power company maintaining high-voltage wires; Cutler v. Putnam Light & Power Co., 80 Conn. 470, 476, 68 A. 1006; McAdam v. Central Railway & Electric Co., 67 Conn. 445, 447, 35 A. 341, compel the conclusion that the admitted facts of the complaint do not support a cause of action against the defendant on the ground that it is absolutely liable because it is maintaining and operating an agency which is inherently dangerous and ultrahazardous. The circumstances and conditions in the use of high-voltage electricity which has the capability of arcing and being conducted through the air do not involve a risk of probable injury to such a degree that the activity fairly can be said to be intrinsically dangerous to the person or property of others.”); • Williams v. Detroit Edison Co., 234 N.W.2d 702, 709 (Mich.App. 1975) (“... we choose to follow California's example [in McKenzie] and hold the power company to the ‘reasonable man’ standard of care rather than impose liability based upon the maintenance of an ultra- hazardous activity.”); • Ferguson v. Northern States Power Co., 239 N.W.2d 190, 194 (Minn. 1976) (In case involving injury by contacting uninsulated 8 kV distribution line, the court “..