Amicus Curiae Brief in Supreme Court of Michigan in Wrongful Death Case Against Electric Utility

I’ve published a prior post about the amicus curiae (friend of the court) brief filed on behalf of Michigan Defense Trial Counsel in support of an application for leave to appeal filed by Consumers Energy Company. Below is a summary and the brief attached once again.

MDTC has submitted an amicus curiae brief in support of the application for leave to appeal filed by Consumers Energy Company in the case of Estate of Skidmore v Consumers Energy Company, Supreme Court Docket No. 154030.

On the evening of July 2011 in Battle Creek, Michigan, a live, high-voltage power line owned by Consumers fell into the yard of Roody Cooper. Ralph and Dawn Skidmore lived in the house across the street. Both Mr. and Mrs. Skidmore saw fire and sparking caused by the electrical power line near to Mr. Cooper’s van and in his front yard. Two other eyewitnesses, who were also neighbors to Mr. Cooper had left their house and were watching the power line sparking and flaming. Mr. Cooper also noticed the power line and saw that it had caused an 8-foot bush in his yard to catch fire and be entirely consumed in flames.

Mr. Skidmore testified he warned Mrs. Skidmore not to go outside. Nonetheless, she told Mr. Skidmore she feared the van would catch on fire and that she wanted to warn Mr. Cooper while her husband called 911. Despite her husband’s warning, Mrs. Skidmore left the house, and despite shouts from the other two neighbors not to approach, she ran straight across the street and into Mr. Cooper’s yard where the power line was laying. Mrs. Skidmore either got too near to or came into contact with the power line and she was immediately electrocuted. It is likely she died instantly, although there was rather dramatic and horrifying testimony that her body caught fire several times after being extinguished.

Mr. Skidmore sued Consumers both as an individual and on behalf of his wife’s estate, claiming negligence, res ipsa loquitor, Negligent infliction of emotional distress, and bystander liability. Consumers moved for summary disposition arguing it had no duty to protect against completely unforeseeable acts of Mrs. Skidmore, who ignored multiple warnings and defied common sense in running towards the known deadly hazard. The trial court granted Consumers motion finding that Mrs. Skidmore’s actions were unforeseeable.

The estate appealed and the Court of Appeals (Shapiro, Borrello, and O’Connell) issued an initial, unanimous published opinion reversing the trial court. The Court of Appeals ruled that although Mrs. Skidmore was aware that a power line had fallen, it was reasonably foreseeable that as a neighbor she might attempt to rescue or aid Mr. Cooper.

Both parties filed motions for reconsideration, which the Court of Appeals Granted. The Court of Appeals then issued a second published opinion vacating the prior one. The Court of Appeals noted that there was an issue of fact whether Mrs. Skidmore even knew that a downed power line was causing the fire in Mr. Cooper’s yard. The Court also injected the “Rescue Doctrine” into the case, ruling that under this doctrine, a person could recover for injuries received during a reasonably foreseeable rescue attempt. The Court of Appeals ultimate ruling was that there was a difference between power lines that were suspended in the air and those that had fallen, and that it was foreseeable that someone might come into contact with a downed power line.

This time, Judge O’Connell, while agreeing with the original conclusion, concurred in part and dissented. He adhered to his original opinion, in which the entire court had found that Mrs. Skidmore knew a power line had fallen, but that there was an issue of fact as to whether she had acted reasonably, and therefore whether her injuries were a foreseeable result of Consumers’ alleged negligence in failing to maintain and/or repair the power lines.

Consumers filed an application for leave to appeal in the Michigan Supreme Court, raising the following issues:

Whether the Supreme Court should grant to address the Court of Appeals’ analysis on reasonable foreseeability, the applicability of the rescue doctrine, and the open and obvious doctrine (that the open and obvious doctrine did not apply)?

MDTC filed an amicus brief in support of the application. MDTC pointed out that the Court of Appeals’ decision ignored several major common-law principles in Michigan law.

With respect to actions against public utilities, MDTC pointed out that Michigan courts have historically analyzed any personal injury action against such an entity from the perspective of the public policy of protecting affordable electricity and in recognition that high-volume provision of public services must be protected from overburdening litigation.

In this same vein, MDTC demonstrated that public utilities were not historically held to a “higher standard of care” or “heightened duty” and not treated as insurers of public safety. While some states have imposed a higher duty of care or strict liability on certain public service providers that engage in ultra-hazardous activities (like the provision of high-voltage electricity), Michigan has historically treated public utilities as any other ostensible tortfeasor, analyzing their conduct under an ordinary reasonableness standard.

MDTC also addressed Michigan’s robust common-law tradition of not imposing tort liability on all ostensible tortfeasors for unforeseeable actions and conduct of others that bring about injury either to themselves or to a third party.

Finally, MDTC explained the modern tort-law analysis applied by the Michigan Supreme Court, which looks at issues of duty, breach, proximate cause and foreseeability considering public policy and the scope of liability imposed on all tortfeasors depending on the facts and circumstances of a given case.

MDTC argued for reversal of the Court of Appeals opinion because it ignored the public policy of protecting public utilities from incurring strict liability for unforeseeable events. It also pointed out that the Court of Appeals’ opinion appeared to impose nearly strict liability for injuries occurring to a member of the public as the result of a downed power line. If the Court of Appeals was willing to extend the scope of liability out to the unforeseeable actions of Mrs. Skidmore, who inexplicably ran towards a fire in her neighbor’s yard (whether or not she knew it was from a downed power line), then liability would encompass a wide swath of the public who might accidentally or inadvertently come into contact with a downed power line.

MDTC also pointed out that the rescue doctrine applied by the Court of Appeals has its own limitations on liability for unforeseeable actions and conduct of the rescuer. In short, the law does not impose liability for the unforeseeable plaintiff.

As issues of public policy, liability of public utilities, and common-law protection against imposing liability on ostensible tortfeasors for the unforeseeable actions and conduct of others were present in this case, MDTC urges the Supreme Court to reverse the Court of Appeals decision, or at least grant Consumers’ application to clarify the law.

Read the brief here:  Amicus Curiae.MDTC.Skidmore

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