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
- 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.