Amicus Curiae Brief Addressing Causation and Tort Liability of Public and Quasi-Public Utilities in Wrongful Death Case Against Consumers Energy Company


Attorney Carson J. Tucker submitted an amicus curiae brief in support of an appeal filed by Consumers Energy Company in the case of Estate of Skidmore v Consumers Energy Company, Michigan Supreme Court Docket No. 154030.

In July 2011, a 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, which was entirely consumed by 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 and shouts from the other two neighbors not to approach, Mrs. Skidmore 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.

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 the 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 (Judges 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.

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’s 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:

(1) whether the Supreme Court should grant to address the Court of Appeals’ analysis on reasonable foreseeability, (2) the applicability of the rescue doctrine to the case, and (3) the open and obvious doctrine (that the open and obvious doctrine did not apply to bar plaintiff’s claims).

Carson J. Tucker volunteered to file the 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, Mr. Tucker 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 such public and quasi-public utilities must be protected from overburdening litigation.

In this same vein, Mr. Tucker demonstrated that public utilities were not historically held to a “higher standard of care” or “heightened duty” and thus not treated as absolute 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.

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

Finally, Mr. Tucker explained the modern tort-law analysis applied by the Michigan Supreme Court (and the majority of other states) which looks at issues of duty, breach, proximate cause and foreseeability in light of public policy and the scope of liability imposed on tortfeasors depending on the facts and circumstances of a given case. This would, Mr. Tucker argued, necessarily require consideration of the nature of the defendant’s business activity – here the provision of a public utility.

Mr. Tucker also 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 lower court’s 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.

Mr. Tucker also analysed the rescue doctrine applied by the Court of Appeals and noted that it had its own limitations on liability for unforeseeable actions and the 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, Mr. Tucker urged the Supreme Court to reverse the Court of Appeals decision, or to at least grant Consumers’ application to clarify the law.

Amicus Curiae Brief in Skidmore v. Consumers Energy Company, Supreme Court of Michigan March 7, 2017