Theodore J. Hoffman and Deborah L. Hoffman, Appellants, v. Union Electric Company d/b/a AmerenUE, Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Theodore J. Hoffman and Deborah L. Hoffman, Appellants, v. Union Electric Company d/b/a AmerenUE, Respondent. Case Number: ED84331 Handdown Date: 01/04/2005 Appeal From: Circuit Court of the City of St. Louis, Hon. Steven R. Ohmer Counsel for Appellant: Steven F. Meyerkord and Steven D. Rineberg Counsel for Respondent: James J. Virtel and Ann E. Buckley Opinion Summary: Theodore and Deborah Hoffman appeal the summary judgment denying their claim of negligence against Union Electric Company d/b/a AmerenUE ("UE") for the wrongful death of their daughter. REVERSED AND REMANDED. Division One holds: As a matter of law, UE had a duty to communicate to emergency personnel information in its possession regarding the status of a power line that had fallen on the car in which the Hoffmans' daughter was trapped. Moreover, there was evidence that, had UE informed emergency personnel that the line was dead, at least one emergency worker would have been willing to assist Hoffman without waiting for UE to remove the line. Summary judgment, therefore, was inappropriate.

Citation: Opinion Author: Glenn A. Norton, Judge Opinion Vote: REVERSED AND REMANDED. Gaertner, Sr., P.J., concurs. Sullivan, J., dissents in a separate opinion. Opinion:

Theodore and Deborah Hoffman appeal the summary judgment denying their claim of negligence against Union Electric Company d/b/a AmerenUE ("UE") for the wrongful death of their daughter. We reverse and remand. I. BACKGROUND The Hoffmans' daughter died from injuries sustained when the car she was riding in struck a UE utility pole and overturned. The pole broke, the electric line fell onto the car, and the car caught fire. The pole carried two circuits. UE's regional dispatcher received an alarm regarding one of the circuits, and customers complained that lights were out, indicating an outage on the other circuit. Each of these circuits "locked open" within minutes of the accident, de- energizing the circuits. Once locked open, a circuit is dead until it is manually closed. Lightening striking or contact with a parallel line could also re-energize a deadened line. UE's construction supervisor was notified by the local police dispatcher that there had been an accident, that there were people trapped inside the car and that lines were down. He contacted the UE regional dispatcher, told him that there was accident and headed to the scene. Emergency personnel who had responded to the accident did not know whether or not the line was energized and could not immediately extricate Hoffman from the car or provide medical treatment to her. When the UE employee arrived at the scene, he used a fiberglass stick from one of the fire trucks to remove the line, and emergency personnel extricated Hoffman from the car. Approximately 30 minutes had elapsed by that time. In their petition, the Hoffmans alleged that UE knew the line was de-energized and had a duty to notify emergency personnel that it was safe to assist Hoffman. UE moved for summary judgment, arguing that it had no duty to encourage emergency personnel to take a risk that its own employees would not take or to provide emergency personnel with information from which they could decide whether to take such risks. It also claimed that the undisputed evidence showed that, even if emergency personnel had been told that the line was dead, they would not have attended to Hoffman before the line was removed. The court granted the motion, and this appeal followed. II. DISCUSSION The propriety of summary judgment is a question of law, and our review is de novo. ITT Commercial Finance Corp. v. Mid-America Marine Supply Corp., 854 S.W.2d 371, 376 (Mo. banc 1993) . The criteria for determining the propriety of summary judgment on appeal are no different than those used at the trial level. Id. UE, as the defending party, may establish a right to judgment by showing (1) facts that negate any one of the elements of the plaintiff's claim, (2) that the plaintiff, after an adequate period of discovery, has not been able to produce, and will not be able to produce, evidence sufficient to allow the trier of fact to find the existence of any one of those elements, or (3) that

there is no genuine dispute as to the existence of each of the facts necessary to support a properlypled affirmative defense. Id. at 378. Although we view the record and construe all inferences favorably to the non-movant, facts set forth in support of the summary judgment motion are taken as true unless contradicted by the non-movant's response. Id. at 376, 382-83. A. Duty In a negligence action, the plaintiff must establish that the defendant had a duty to protect the plaintiff from injury, that the defendant failed to perform that duty and that this failure caused the injury. Lopez v. Three Rivers Electric Cooperative, Inc. , 26 S.W.3d 151, 155 (Mo. banc 2000). "Whether a duty exists is purely a question of law." Id. Duty is simply an expression of policy considerations that entitle the plaintiff to protection. Gunnett v. Girardier Building and Realty Co. , 70 S.W.3d 632, 639 (Mo. App. E.D. 2002). Whether a duty will be imposed rests on several policy factors, including: (1) a social consensus that the interest is worth protecting, (2) foreseeability of the injury and a degree of certainty that the plaintiff suffered injury, (3) likelihood of the injury, (4) any moral blame society attaches to the defendant's conduct, (5) prevention of future harm, (6) cost and the ability to spread the risk of loss and (7) the consequences of placing the burden on the defendant. Id. Foreseeability is paramount and depends on whether the defendant should have foreseen a risk in a given set of circumstances. Lopez , 26 S.W.3d at 156. In this context, foreseeability is "the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it." Id . UE should have foreseen the risk under the circumstances in this case. It was foreseeable that emergency personnel would delay their attention to the victims of this accident until being informed of the status of the electric current in the power line. Serious harm is likely to result from such a delay, and an ordinary person would take precautions to avoid that harm. UE could have guarded against this risk by simply communicating the information it had in its exclusive possession about the status of the power line. UE argues that because even a locked-open line may re-energize, it would have been imprudent to advise emergency personnel that it was safe to proceed. We do not hold that UE should have advised emergency personnel that the situation was safe when it was not or that UE should encourage emergency personnel to take any particular action. But that does not mean that UE should not have given emergency personnel any information about the line. Had it provided all of the information in its possession--that the circuits were locked open and de-energized, that the line could be re-energized under certain circumstances, that UE employees, as a practice, do not work on a line unless it has been grounded and the circuit tagged so as to prevent anyone from manually closing an open circuit

(FN1) --then emergency personnel could have assessed the risk of proceeding. The more informed emergency personnel are, the better able they are to assess the risks at an accident scene and protect themselves and members of the public. That may mean that they choose to avoid the risk. But, in this case, without any information, emergency personnel could do nothing but wait for UE. Putting emergency personnel in that position is not in the public's best interest. (FN2) As a matter of law, UE had a duty to communicate to emergency personnel at the scene of this accident the information in its possession regarding the status of the power line. (FN3) Causation UE argues that even if it had a duty, summary judgment was proper because the Hoffmans cannot present evidence of causation. We disagree. In response to UE's motion for summary judgment, the Hoffmans pointed to a firefighter's testimony that he would have extricated Hoffman from the car if he had been told the line was dead. This is sufficient to show that, had UE provided emergency personnel with the information in its possession, at least one of the workers on the scene would have been willing to proceed with assisting Hoffman without waiting for UE to remove the line. (FN4) Evidence that the captain of the fire department would not have assisted Hoffman until the line was removed because he would not "injure any of [his] firefighters," even if UE told him that the line was dead, may suggest that the willing firefighter would have been ordered not to proceed to assist the victim until UE arrived. But that goes to the weight of that firefighter's testimony--as does any speculation about what he would have done if told of the remote possibility that the line could re-energize. It does not establish UE's right to summary judgment. III. CONCLUSION The judgment is reversed, and the case is remanded for further proceedings. Footnotes: FN1. These standard precautionary measures were, in fact, sidestepped by the UE employee who ultimately removed the line--as routine precautions often are in an emergency. FN2. Our holding is consistent with the Supreme Court's recent reiteration that when wires become dangerous, a utility has a duty to protect the public by fixing the problem within a reasonable period of time. Grattan v. Union Electric Company , 2004 WL 2801369, SC85851 slip op. at *5 (Mo. banc December 7, 2004) (citing Goddard v. St. Joseph Light & Power Co., 379 S.W.2d 565, 569 (Mo. 1964)). In Grattan , the Court reversed summary judgment on the plaintiff's claim that the utility was negligent for failing to shut off power to lines that had fallen onto his car after a collision with the utility pole. 2004 WL 2801369 at *1. "Beginning when the wires fell, Union Electric had a duty to discover the danger and shut off the power within a reasonable time." Id. at *6. FN3. The Hoffmans contend that UE's duty to communicate information is established by Lopez, supra, and Pierce v. Platt-Clay Electric Cooperative Inc. , 769 S.W.2d 769 (Mo. banc 1989). In Lopez , the Court held that the electric cooperative should have foreseen that an injury could occur to low-flying aircraft because of its unmarked power lines and, therefore, it had a duty to exercise ordinary care to prevent such harm. 26 S.W.3d at 151. In Pierce , the Court held that the cooperative had a duty to exercise ordinary care to address the foreseeable hazard of farmers

running into its unmarked guy wire causing them to break and fall onto a busy highway. 769 S.W.2d at 776. Although there is perhaps an analogy to be drawn between a duty to warn of the presence of power lines by marking them and the responsibility to convey information about the status of a power line involved in an accident--in that both involve preventing foreseeable harm--they are two separate duties, each dependent on the particular facts of the case. Thus, while these cases are of some precedential value for general principles of law regarding duty, they are not dispositive of the issue here. FN4. Moreover, it is reasonable to infer that emergency personnel could have removed the line themselves--using the fiberglass stick in the fire truck--had UE provided the necessary information. Separate Opinion:

I respectfully dissent from the majority opinion. To support the reasoning behind my dissent, I more fully develop the facts in this case as follows. On September 18, 1998, Tiffany Hoffman was a passenger in a car driven by Randi Simpson (Simpson). Trooper Gilbert Lee Rodenberg (Rodenberg) observed the car going in excess of the speed limit. Rodenberg pulled out, overtook the car and activated his lights and siren. Simpson would not pull over; instead, he sped up. Rodenberg stayed with the car to the city limits of Excelsior Springs, where the car turned south on McCleary Road. The car jumped some railroad tracks, became airborne, hit the ground, hit the left guardrail, bounced off to the right, bounced back on the left, went up and hit a utility pole in the grassy area off the left side of the road. The impact sheared off the pole at the ground level and moved it. The car overturned, spun in circles, and slid to a stop on the top of its roof. An electric line fell onto the undercarriage of the overturned car. The electric line energized the car and the car caught fire. As a result of the accident, Tiffany Hoffman suffered electrical burns, pulmonary injuries from the inhalation of toxic fumes, and conscious pain and suffering. On October 15, 1998, Tiffany Hoffman died as a result of her injuries. In December 1998, Theodore J. and Deborah L. Hoffman (Appellants), Tiffany Hoffman's parents, settled their claims arising out of the accident and death of their daughter with State Farm Mutual Automobile Insurance Company, the insurer of the automobile operated by Simpson. The utility pole that broke carried eight electrical lines that consisted of three 34.5 kv conductors; three 12.5 kv conductors; a system neutral and a static wire for lightning protection. The 34.5 kv circuit and the 12.5 kv circuit each were equipped with a three-phase circuit breaker. Frederick Brooks (Brooks), AmerenUE's expert witness, testified that when a three-phase circuit breaker locks open, the designed mechanism of operation is that all three conductors protected by the breaker are de-energized. Once locked open, a circuit breaker remains open until utility personnel

manually close the breaker at the substation. Shortly after 9:56 p.m., AmerenUE's regional dispatcher, Ronald Ramer (Ramer), received an audible alarm with respect to a 34.5 kv circuit at the location of the accident. Less than a minute later, just after 9:57 p.m., the circuit breaker for the 34.5 kv circuit locked open, so that no current was being transferred over the line. The circuit breaker for the 12.5 kv circuit locked open by 9:58 p.m. AmerenUE's on-call supervisor, Steve Litrell (Litrell), called Ramer and said his lights were blinking and that he would call a trouble man to investigate. Ramer testified that he then received some phone calls from customers complaining that their lights were out, indicating that there was an outage on the 12.5 kv distribution circuit. The ambulance report indicates emergency personnel arrived at the accident scene at 9:59 p.m. Fire personnel were en route to the scene at 9:54 p.m. and arrived at the scene shortly thereafter. Dean Merritt (Merritt), an AmerenUE construction supervisor, received a call at his home at 10:06 p.m. from Debra Willimetz (Willimetz), the Excelsior Springs police dispatcher. She advised him that there was a collision involving power lines down on a vehicle, there were occupants trapped inside, and medical personnel were unable to render any medical treatment to the occupants due to the presence of power lines. Merritt immediately got in his truck and drove to the accident scene. Merritt radioed Ramer and told him that there had been an accident. When Merritt arrived at the scene around 10:25 p.m., he found that the utility pole was broken off at the base but was still standing and that the road phase of the 34.5 kv line, i.e. the 34.5 kv conductor closest to the road, was looped over the car. He assessed the situation, then walked back to and talked to the fire captain, asked him if one of the fire trucks had a fiberglass stick, walked to a fire truck, got a fiberglass stick, walked back down to the car and removed the line at approximately 10:33 p.m. Merritt coiled the line up, using the stick, and did not use his hands. Emergency personnel then removed Tiffany Hoffman from the vehicle, and she was transported by helicopter from the accident scene. The majority opinion holds that the trial court erred in granting summary judgment in favor of AmerenUE because AmerenUE, as a matter of law, had a duty in this case to protect Tiffany Hoffman from harm. For the following reasons, I disagree. Negligence and Duty Negligence is conduct which falls below the standard established by law for the protection of others against unreasonable risk of harm. Gibson v. Brewer , 952 S.W.2d 239, 246 (Mo.banc 1997); Restatement (Second) of Torts sec. 282 (1965). In order to make a submissible case of negligence, a plaintiff must establish there was a duty, and

the breach of that duty was the proximate cause of his injury. Hosto v. Union Elec. Co. , 51 S.W.3d 133, 139 (Mo.App. E.D. 2001). Whether a duty exists is purely a question of law. Id. In the absence of a particular relationship recognized by law to create a duty, the concept of foreseeability is paramount in determining whether a duty exists. Hosto , 51 S.W.3d at 139. Foreseeability is the presence of some probability or likelihood of harm sufficiently serious that ordinary persons would take precautions to avoid it. Id. The majority maintains that AmerenUE had a duty to communicate to emergency personnel at the accident scene information solely in its possession regarding the status of the power line so as to allow Tiffany Hoffman the opportunity to receive timely medical treatment. The majority finds that AmerenUE's failure to communicate such "information" caused harm to Tiffany Hoffman because of the resulting delay in her treatment. (FN1) In their brief, Appellants cite Lopez v. Three Rivers Elec. Coop., Inc., 26 S.W.3d 151 (Mo.banc 2000) and Pierce v. Platte-Clay Elec. Coop., Inc. , 769 S.W.2d 769 (Mo.App. 1989) in support of their assertion of negligence and duty. Neither of these cases supports Appellants' argument that AmerenUE had a duty to communicate information about the status of the power line to emergency personnel after the car accident or that AmerenUE was negligent for not doing so. The majority's opinion acknowledges as much. Lopez involved unmarked overhead power lines spanning the Osage River that had been struck 20 years earlier by a plane and were struck again by a helicopter. 26 S.W.3d at 154. The plaintiffs argued that the utility cooperative had a duty to warn the helicopter pilots of the potential danger of flying into the power lines. The power lines, which had become greenish-brown in color due to oxidation, were only three-eighths of an inch thick, and not marked with any warning device, making them difficult to see. Id. at 155. The Court found that although pilots were accustomed to seeing wires located between poles, the wires in this case were over 900 feet long between the supporting structures. Id. Further, the structures supporting the power lines on both sides of the river were obscured by trees and other vegetation. Id. The Court held that the utility cooperative had a duty to the helicopter crew that struck the lines. Id. at

1. Specifically, the Court held that the cooperative should have foreseen that there existed some probability of

sufficient moment that injury could occur from the unmarked power lines across the river, especially in light of the prior accident, where a fixed-wing aircraft that had been tracking the movement of bald eagles along the Osage River struck the power lines at the same location as the accident in this case. Id. at 156. Three fatalities resulted from that accident. Id. Pierce involved a farmer who struck an unmarked guy wire as he operated a tractor while fertilizing his field. 769 S.W.2d at 770-71. The utility pole was placed in the midst of trees at the edge of the farmer's field, and the guy wire

extended into the vegetation. Id. at 771. Upon striking the wire, the utility pole was caused to break and a non- electrically charged cable fell across an adjacent highway. Id. The farmer was then injured as he ran toward the highway in an attempt to warn motorists of the cable. Id. The Court held that the utility company had a duty to inform the farmer of the presence of the guy wire that secured a utility support pole on the farmer's field. Id. at 776. In the four years prior to the farmer's accident, there were nine trouble tickets concerning contact between farm machinery and guy wires. Id. at 773. The farmer was allowed to admit two of these trouble tickets to demonstrate the utility's notice that farm machinery had struck unmarked guy wires. Id. at 773-774. The Court found that this evidence was relevant to show that the utility was aware of the risk of farm machinery contacting unmarked guy wires and that such an event could foreseeably result in an unreasonable risk of injury. Id. at 774. Both Lopez and Pierce held that the utility owners had a duty of care to mark their power lines or wires because they were obstructions that were not readily visible to the public, and the danger they posed was clearly foreseeable. Accidents had happened in the past because the lines were unmarked and not visible to the public. The instant case does not involve a situation where AmerenUE failed to do something that would have prevented the accident which killed Tiffany Hoffman. There was no allegation that the power line was not clearly marked or improperly placed. There had been no accidents in the past which would have created a risk foreseeable to AmerenUE in this situation. Accordingly, neither Lopez nor Pierce supports Appellants' argument. According to the majority opinion, the information that AmerenUE had a duty to report to rescue workers at the accident scene was that "the circuits were locked open and de-energized, that the line could be re-energized under certain circumstances, that AmerenUE employees, as a practice, do not work on a line unless it has been grounded and the circuit tagged so as to prevent anyone from manually closing an open circuit." Imparting such information will inevitably cause some rescue workers to attempt to remove a re-energized line in the future. Such consequences will be disastrous. In considering whether a duty exists in a particular case, we must weigh the foreseeability of injury, likelihood of injury, magnitude of burden of guarding against it and the consequences of placing that burden on the defendant. Lockwood v. Jackson County, Mo. , 951 S.W.2d 354, 357 (Mo.App. W.D.1997) (Emphasis added). For the following reasons, I think that the consequences of the majority's imposition of such a duty as a matter of law on AmerenUE will be calamitous. Under AmerenUE's Workman's Protection Assurance Policy, a workman himself is not to work on an electric line until switches have been opened, tags have been placed on the switches to tell people not to close them, and the lines have been grounded. Undisputed evidence was presented at trial that AmerenUE's own employees are to treat a

line as energized until it has been grounded, because a line may be energized or become energized even after the computer system shows the circuit breaker as having locked open. In this case, the downed line had not been grounded, nor had warning tags been placed on the switches. As such, an AmerenUE employee certainly could not tell paramedics or other rescue personnel that the line was de-energized, or safe, when AmerenUE's safety procedures had not even been implemented. In fact, such a communication would be more akin to reckless endangerment of the rescue personnel than fulfillment of a duty. Merritt, the AmerenUE employee who actually removed the downed line from the vehicle, was a construction supervisor at the Excelsior Springs division at the time. He had been working in the industry for 25 years. Merritt supervised crews, assigned jobs, and took care of maintenance. All of the line personnel, including the ones that answered trouble calls when lines were down, answered to him in Excelsior Springs. Merritt was familiar with incidents in which vehicles hit power line poles and caused lines to come down to the ground or strike the vehicles. Merritt testified that when he headed over to the accident scene, his purpose was not to perform any emergency work, and that he had no equipment to remove downed power lines in his vehicle. Merritt had been informed that a line worker had already been called out to the scene, and Merritt directed the local dispatcher to send additional line workers. However, Merritt happened to be the first AmerenUE employee to arrive at the scene. He testified that once he got to the scene, he saw that the downed line was not arcing, and thus was not energized. Merritt was specifically asked at his deposition, "When you got there and saw the line on the vehicle, was there something about it that you could tell standing there that it was okay to approach the vehicle?" Merritt replied, "It wasn't arcing" and "[T]here was no sparks" and he did not hear an audible buzz. He stated that it would not have been safe for the emergency personnel to have attempted to remove the line themselves because unless the line is grounded, there is a safety concern. When asked whether he told the rescue people that "I don't hear a buzz and I don't see any arcing, it's okay to approach the vehicle" Merritt replied "No, I did not tell them that" because the rescue people "won't approach a vehicle with lines down until somebody clears it" because it "has the potential to come back any time," for example, if another car accident happened down the road. Even if another car accident had not occurred, Merritt stated that electrical workers are taught that "you cannot see the inner operations of [a mechanical device], so if for some remote cause, one phase didn't open out of the breaker or something, you still may have one hot phase out there even though the breaker is showing lockout." Merritt's respect for, and caution and wariness of, the power and unpredictability of an electrical device and

electricity in general has long been recognized in our courts. "Electricity is one of the most dangerous agencies ever discovered by human science...." Geismann v. Electric Co. , 73 S. W. 654, 659 (Mo. 1903). "[I]ts tendency to break loose and its capacity for evil are so great... a force invisible, subtle, powerful, inconceivably swift in motion, eccentric, and of great conductibility." Byerly v. Consolidated Light, Power & Ice Co. , 109 S.W. 1065, 1066 (Mo.App. 1908). Merritt further testified that he did not remove the line immediately upon arriving at the scene because he "assessed the situation, what we had down, where the conductor was, and then I walked back up and talked to the police -- or the fire chief, asked him if there was a -- if one of his trucks would happen to have a fiberglass stick, and he said he thought he had one, and so we walked back to that truck. They found one for me and I walked back down there." This whole process of assessing the situation took about 8-13 minutes. Merritt acknowledged that his eyes, ears and knowledge of the system are what allowed him to decide to approach the car and remove the power line with the fiberglass stick. Merritt made this decision despite AmerenUE's safety procedures. Appellants maintain and the majority agrees that testimony from paramedic Doug Fales (Fales) "unequivocally indicates that he would have extricated Tiffany Hoffman from the vehicle and provided medical treatment to her had he known the line did not conduct electricity." The majority's holding would have us find an electric utility negligent for having its own personnel remove a downed line, rather than encouraging untrained persons to approach the line before the possibility of danger has been eliminated by a trained eye and ear. Further, the record shows that Fales merely answered "Yes, sir" ; to the following question posed to him: "If someone from the utility would have told you after you arrived at the scene that the power line was dead, no current on the power line, would you have extricated this lady, the passenger, from the vehicle?" Fales did not testify that he would have approached the line if he had been told there was a remote possibility that the line could still be energized. Appellants' expert witness acknowledged that because reenergization was a possibility, this information would have to be provided. Moreover, Fales was under the command of Fire Captain Joseph Lee Maddick (Fire Captain Maddick). Fire Captain Maddick, who was at the accident scene, testified that even if he had been told by a utility employee that the line was dead and there was no current on the line , someone would have to "prove to me that that's not a live line, because I am not going to injure any of my firefighters or anybody else doing something like that. It's an unsafe scene." Fire Captain Maddick stated that even if someone from the utility told him that the line was dead, that person "would have to remove the wire from the car" before they would have made contact with the victims in the vehicle. Therefore, it is not certain that Fales would even have been able to do what he said he would have done. Based on the foregoing, the majority's argument that "[i]t was foreseeable that emergency personnel would delay

their attention to the victims of this accident until being informed of the status of the electric current in the power line " is not an entirely accurate prediction. Based on the testimony of the emergency personnel, it is not certain, as the majority assumes it is, that they would have immediately ceased their hesitation and rendered aid to the passengers upon hearing the status of the power line. On the contrary, Brad Randall (Randall), a firefighter and emergency medical technician that had accompanied an ambulance to the accident scene, testified that he would not have assisted the passengers in the vehicle until the line was removed, even if he was told that there was no current on the line. Further, Fire Captain Maddick testified that none of the fire department vehicles was equipped with a "hot stick," which is what electrical utility personnel call the pole that Merrick retrieved from the fire truck. In fact, the pole that Merrick retrieved was referred to by fire personnel as a "pike pole," which they use to pull down sheetrock from ceilings in structure fires. Fire Captain Maddick testified that neither he nor any of his firefighters had any training in how to use a "pike pole" to move an electric line. (FN2) When Fire Captain Maddick was questioned: "If someone from the utility had advised you that the line was dead -- that is, that there was no current on the line -- and instructed you to use a pike pole to remove the line from the vehicle --would you have used the pike pole to remove the line from the car," he replied, "Not -- I would have checked with my chief." Ramer also testified that as a dispatcher in emergency situations similar to the one at issue he had never directed or authorized the firemen or police to use a "hot stick" to move a line. Ramer stated that he had never done so because they "probably in no way would be trained to do it," and he would not want to be responsible for "getting somebody hurt or killed or something." Ramer also explained that even when the circuit has locked open, it is possible for another line down the road to fall into it or for lightning to hit the line and energize it. Ramer stated that he was aware of a situation in which a line had been re-energized and "just burned a couple of guys and one of them happened to be a good friend of mine, so I know that happens." The judicial determination of the existence of duty rests on sound public policy. Hoover's Dairy, Inc. v. Mid-Am. Dairymen, Inc. , 700 S.W.2d 426, 431 (Mo.banc 1985). The majority opinion is creating a duty in this case unprecedented in Missouri law and with potentially dire consequences. I would hold that AmerenUE, who was not present at the scene of the automobile collision, caused through no fault of its own, with one of its power lines that has been negligently struck by the driver and trapping the vehicle's occupants, did not have a duty to advise by radio or telephone or some other remote means, the rescue personnel at the scene of that accident that the power line was not energized and thus safe for removal, when there were conditions unknown to AmerenUE that could render this

advisement false, and thus place the lives of the rescue personnel in danger. The majority' s imposition of such a duty is clearly against public policy. For the foregoing reasons, I would affirm the judgment of the trial court. Footnotes: FN1. The majority maintains that its holding is consistent with Missouri Supreme Court's recent "reiteration" in Grattan v. Union Electric Company , 2004 WL 2801369, SC85851 slip op. at 5 (Mo.banc December 7, 2004), that when wires become dangerous, a utility has a duty to protect the public by fixing the problem within a reasonable period of time. In the instant case, there is no allegation that AmerenUE failed to "fix," or de-energize, the downed wires within a reasonable amount of time, or to respond to the accident in a reasonable amount of time. As such, Grattan is not on point to the instant case. FN2. This statement presumably includes Fales. There was no evidence presented that Fales knew how to use a hot stick or pike pole to move an electric line, so even if he had undertaken to remove the line despite being told it may reenergize and in spite of his captain's command to the contrary, there is no guarantee he would have done it successfully and without harm or death to himself so as to be able to go on and render medical aid to Tiffany Hoffman. This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.