                            STATE OF MICHIGAN

                             COURT OF APPEALS



In re Estate of CATHERINE DAWN SKIDMORE.


RALPH SKIDMORE, JR., Individually and as                               FOR PUBLICATION
Personal Representative for the Estate of                              May 24, 2016
CATHERINE DAWN SKIDMORE,

                 Plaintiff-Appellant,

v                                                                      No. 323757
                                                                       Calhoun Circuit Court
CONSUMERS ENERGY COMPANY,                                              LC No. 2012-001595-NH

                 Defendant-Appellee.


                                        ON RECONSIDERATION

Before: SHAPIRO, P.J., and O’CONNELL and BORRELLO, JJ.

O’CONNELL, J. (concurring in part and dissenting in part).

        The adage “be careful what you wish for” comes to mind. In asking this Court to clarify
our previous opinion on the basis of concerns of what Consumers might argue based on
overblown and distorted readings of this Court’s prior opinion,1 the estate opens a can of worms.
The opinion on remand does not “correct” what either party contends are deficiencies with the
previous opinion, but instead raises premises liability issues that were not raised or briefed below
and are frankly irrelevant in this general negligence case. Rather than clarify or reach a different
result than the previous opinion, the opinion on reconsideration simply confuses the issues more.
I would therefore not grant reconsideration and remain with the analysis in the original opinion,
which I restate here for convenience:

                A live power line on the ground is far more hazardous than a live power
         line in the air. In this wrongful death action, plaintiff Ralph Skidmore, Jr.,
         individually and as the personal representative of the estate of Catherine Dawn
         Skidmore (collectively, the estate), appeals of right the trial court’s order granting


1
    Consumers, meanwhile, essentially restates the same arguments this Court previously rejected.



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summary disposition in favor of defendant, Consumers Energy Company
(Consumers), under MCR 2.116(C)(10). The trial court concluded that
Consumers did not owe Catherine a duty because it was not foreseeable that she
would run across her neighbor’s darkened yard to warn him of a fire that resulted
from a downed power line. We reverse and remand.

                         I. FACTUAL BACKGROUND

       According to Ralph, the evening of July 19, 2011, was warm and clear.
As Ralph was getting into bed that evening, the lights flickered and Catherine
began screaming that a neighbor’s van was on fire. Ralph looked out a window
and saw sparks and fire coming from the van across the street. He could see that a
power line had fallen on top of the van, and he explained that he could only see
movement and light because it had fallen on the opposite side of the van.

         Ralph testified that Catherine thought that the van might explode and was
frantic with concern for the man who lived in the house across the street.
Catherine “bolted out of the house” to warn the neighbor, Roody Cooper. Ralph
testified that Catherine ran for the window where the neighbor Cooper was
standing. Ralph heard people yell for her to stop, but he opined that she likely did
not hear them over the loud crackling of the electricity.

        According to Cooper, the power line that broke runs above the
southeastern corner of his house. Cooper heard a loud boom, followed by a
brilliant flash and a buzzing sound. He looked outside and saw flashing sparks in
a bush, so he called 911. The line was sliding “like it was pulling itself through
the bush.” Cooper saw Catherine on the porch on the northwestern corner of his
home. She yelled to him that there was a fire, and he shouted back that he heard.
As he was traveling to the other end of his house, he heard a sharp crack and a lot
of yelling.

       Cooper, Don Stutzman, and James Beam testified that Cooper’s yard was
dark. Stutzman and Beam testified that they could not see where the line was in
the yard. They yelled at Catherine to stop but could not tell if she heard them.
Ralph saw a wire twist around Catherine’s legs. Catherine began shaking and
then caught on fire. Despite efforts to put Catherine out with a fire extinguisher,
she repeatedly lit on fire and died.

         According to Ralph, the power lines in the neighborhood had been a
problem for about 25 years, and the power would go off two or three times a
summer. Stutzman and Beam also testified about frequent power outages and
electrical problems. Ralph testified that following a windstorm in May 2011,
Consumers worked on the lines but neighbors complained about the power lines
being too tight, including the line that broke on the night of the accident. Beam
testified the power line that broke was a short pole anchored to a pole that had
been broken.




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         Ralph testified that a power line had also fallen one year before the
accident, and Cooper testified that the incident in 2011 was the second
consecutive summer that a high voltage line had fallen in his yard. Cooper
testified that he told the workers that the trees needed to be trimmed and
neighbors had complained about the trees causing arcing and sparking during
wind and rain. James Leahy, a journeyman line worker, testified that if a tree
touches a line and causes a repeated arc, the power line may fall. However, other
deponents testified that there are many reasons why a power line could fall,
including the activities of weather and animals.

        Dr. Campbell Laird, one of the estate’s experts, opined that Consumers
lacked a “systematic inspection system” for the maintenance of vegetation
surrounding power lines. Laird averred that a properly maintained power line
should not fall absent some trauma to the line. Richard L. Buchanan, a public-
utility expert, opined that Catherine’s death was caused by poor vegetation
management. Buchanan asserted that the 2010 incident with the power line
should have warned Consumers about the power lines in Catherine’s
neighborhood. Buchanan concluded that Consumers violated industry standards
by failing to conduct preventative vegetation trimming.

       The estate filed suit in May 2012. The estate asserted claims of
negligence and negligent infliction of emotional distress, based in pertinent part
on Consumers’s duty to reasonably inspect and maintain its power lines. In July
2014, Consumers filed a motion for summary disposition, asserting that it was not
reasonably foreseeable that Catherine would run into the downed power line.
Following a hearing on the motion, the trial court concluded that Catherine’s
actions were not reasonable and, therefore, Consumers did not owe Catherine a
duty. It granted summary disposition. The estate now appeals.

                         II. STANDARDS OF REVIEW

       This Court reviews de novo the trial court’s decision on a motion for
summary disposition. Maiden v Rozwood, 461 Mich 109, 118; 597 NW2d 817
(1999). When a party moves for summary disposition under MCR 2.116(C)(8)
and (10), and the trial court considered documents outside the pleadings when
deciding the motion, we review the trial court’s decision under MCR
2.116(C)(10). Hughes v Region VII Area Agency on Aging, 277 Mich App 268,
273; 744 NW2d 10 (2007).

        A party is entitled to summary disposition under MCR 2.116(C)(10) if
“there is no genuine issue as to any material fact, and the moving party is entitled
to judgment . . . as a matter of law.” A genuine issue of material fact exists if,
when viewing the record in the light most favorable to the nonmoving party,
reasonable minds could differ on the issue. Gorman v American Honda Motor
Co, Inc, 302 Mich App 113, 116; 839 NW2d 223 (2013). Whether a defendant
owed a plaintiff a duty is a question of law that this Court reviews de novo. In re



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Certified Question From the Fourteenth Dist Court of Appeals of Texas, 479
Mich 498, 504; 740 NW2d 206 (2007).

                                    III. DUTY

       The estate contends that the trial court improperly conflated questions
concerning whether Consumers owed Catherine a duty, a question of law, with
comparative negligence, which is a question of fact for a jury to decide. We
disagree, but we conclude that a question of fact precludes summary disposition.

        To prove negligence, a plaintiff must show that (1) the defendant owed the
plaintiff a duty of care, (2) the defendant breached that duty, (3) the plaintiff was
injured, and (4) the defendant’s breach caused the plaintiff’s injury. Henry v Dow
Chemical Co, 473 Mich 63, 71-72; 701 NW2d 684 (2005). “Every person
engaged in the performance of an undertaking has a duty to use due care or to not
unreasonably endanger the person or property of others.” Hill v Sears, Roebuck
& Co, 492 Mich 651, 660; 822 NW2d 190 (2012). But if it is not foreseeable that
the defendant’s conduct could pose a risk of injury to a person with whom the
defendant has a relationship, then there is no duty not to engage in that conduct.
Certified Question, 479 Mich at 508.

        The extent of duty that an electric utility company owes the public has
been a topic of this state’s jurisprudence for over a century. See, e.g., Huber v
Twin City Gen Electric Co, 168 Mich 531, 535; 134 NW 980 (1912). More
recently, the Michigan Supreme Court has applied modern tort principles to
explain an electrical utility company’s duty to the general public. Schultz v
Consumers Power Co, 443 Mich 445, 450; 506 NW2d 175 (1993).

        In Schultz, the plaintiff’s decedent was electrocuted while helping a friend
paint his house. Id. at 447. While moving a 27-foot aluminum extension ladder,
the defendant’s medium-voltage electrical wires electrocuted the decedent. Id. at
447-448. The plaintiff alleged that a fray in the wire allowed the electrical current
to arc to the nearby ladder. Id. at 448-449.

       The Court held that “a power company has an obligation to reasonably
inspect and repair wires and other instrumentalities in order to discover and
remedy hazards and defects.” Id. at 451. This duty “involve[s] more than merely
remedying defective conditions actually brought to its attention.” Id. at 454. The
Court reasoned that “it is well settled that electricity possesses inherently
dangerous properties requiring expertise in dealing with its phenomena.” Id. at
451.

       However, this duty does not include guarding against every possible
contact with the power lines. In Chief Justice BRICKLEY’s lead opinion resolving
the consolidated cases in Groncki v Detroit Edison Co, 453 Mich 644; 557 NW2d
289 (1996),1 the Michigan Supreme Court rejected several claims involving
accidental contacts with overhead wires. The Court explicitly recognized that the



                                        -4-
cases did not involve allegations of poorly maintained wires. Id. at 657, 660.
Rather, in the specific circumstances of the cases, the defendant had no reason to
foresee that equipment would come into contact with its reasonably placed
powerlines. Id. at 657, 660. And in Valcaniant, the Michigan Supreme Court
rejected a case in which a dump truck’s driver was shocked after accidentally
severing overhead power lines. Valcaniant v Detroit Edison Co, 470 Mich 82,
84-85; 679 NW2d 689 (2004). Again, the Court explicitly noted that the lines’
state of repair was not pertinent to its holding, and the holding did not implicate
the defendant’s duty to inspect its lines. Id. at 86.

       Consumers contends that it had no more duty in this case than the
defendants had in Groncki and Valcaniant. We disagree.

        First, each of these cases are distinguishable because the Court specifically
noted that the state of repair of the lines was not in issue. In this case, the state of
repair of Consumers’s lines is directly in issue. Second, Consumers fails to
comprehend that the risks of accidental contact with a live power line suspended
in the air and accidental contact with a live power line on the ground are
fundamentally different. As stated by Chief Justice CARDOZO in an axiom
familiar to any first-year torts student, “[t]he risk reasonably to be perceived
defines the duty to be obeyed, and risk imports relation; it is risk to another or to
others within the range of apprehension.” Palsgraf v Long Island R Co, 248 NY
339, 344; 162 NE 99 (1928). If nothing else, people are more likely to be in close
proximity to a power line on the ground than they are likely to be if the power line
is suspended in the air.

        The question is whether it is reasonably foreseeable that failing to
reasonably inspect and maintain power lines would result in a dangerous situation
to a person on the ground. Schultz answers this question in the positive, providing
that “a power company has an obligation to reasonably inspect and repair wires
and other instrumentalities in order to discover and remedy hazards and defects.”
Schultz, 443 Mich at 451. It is not a leap to conclude that this duty includes an
obligation to reasonably inspect for fraying lines, since a frayed line was
responsible for the injury in Schultz. An injury due to a live power line on the
ground is far more foreseeable than an injury due to a power line in the air.
1
  The Groncki Court was fractured regarding its rationale. See Valcaniant v
Detroit Edison Co, 470 Mich 82, 87 n 7; 679 NW2d 689 (2004) (providing an
overview of the Justices’ positions in Groncki).

        Consumers contends that it could not have expected that Catherine would
run toward, rather than away from, the power line. However, that argument
focuses too closely on the particular act that resulted in injury. The Schultz Court
explained that the foreseeability of an injury depends in part on the expected uses
of an area:




                                          -5-
       Those engaged in transmitting electricity are bound to anticipate
       ordinary use of the area surrounding the lines and to appropriately
       safeguard the attendant risks. The test to determine whether a duty
       was owed is not whether the company should have anticipated the
       particular act from which the injury resulted, but whether it should
       have foreseen the probability that injury might result from any
       reasonable activity done on the premises for business, work, or
       pleasure. [Id. (emphasis added).]

The area surrounding the power line was residential. It is foreseeable that people
would be using the surrounding streets and yards and would be at risk if the
power line fell. We conclude that it was reasonably foreseeable that an injury
could follow from failing to inspect and maintain a power line in a residential
area.

        Additionally, it is reasonably foreseeable that those persons in the
residential area would act in response to the emergency. “[R]escuers, as a class,
are foreseeable.” Solomon v Shuell, 435 Mich 104, 135; 457 NW2d 669 (1990)
(opinion by ARCHER, J); id. at 151 (opinion by BOYLE, J.). Rescuers must act
reasonably. Id. at 135 (opinion by ARCHER, J.). But whether the rescuer acted
reasonably is a question of fact, not a question of law. Id. at 136.2

        We conclude that there is an issue of material fact regarding whether
Catherine acted reasonably. Ralph testified that he and Catherine both were
aware that a power line had fallen. However, Ralph also testified that Catherine
was frantic, concerned for her neighbor, and went to his home to warn him of the
danger. Cooper testified that Catherine approached his southwestern door, away
from obvious sparks and fire around the van at the house’s southeastern corner.
On the other hand, Catherine also ran across a darkened yard while people were
yelling for her to stop, with the knowledge that there was a downed power line
nearby. Even the trial court stated that whether Catherine’s actions were
reasonable constituted a close question. We conclude that reasonable minds could
differ on this issue. Accordingly, the trial court erred when it granted summary
disposition on the estate’s claims on the basis that Consumers did not owe
Catherine a duty.3
2
 That the reasonableness of a rescue is a question of fact holds true to the general
principle that the fact that a plaintiff was also negligent does not alter the nature
of the defendant’s initial duty. Riddle v McLouth Steel Prods Corp, 440 Mich 85,
98; 485 NW2d 676 (1992).
3
  To the extent that Consumers raises causation issues on appeal, Consumers did
not raise these issues below. An appellee need not file a cross-appeal to argue
alternative reasons to affirm, but the appellee must have presented the reasons to
the trial court. Riverview v Sibley Limestone, 270 Mich App 627, 633 n 4; 716
NW2d 615 (2006). We decline to address these unpreserved issues because they
do not concern issues of law, are not necessary to the resolution of the remaining


                                        -6-
       issues, and our failure to rule on them will not work a manifest injustice. See
       Heydon v MediaOne of Southeast Mich, Inc, 275 Mich App 267, 278; 739 NW2d
       373 (2007).


        In sum, I concur in the result reached and the reasoning regarding duty in the opinion on
reconsideration, but dissent from the portion rejecting “on factual and legal grounds”
Consumers’s arguments. The prior opinion recognized that the existence of a disputed question
of fact regarding the reasonableness of Catherine’s actions did not affect whether Consumers
owed Catherine a duty (indeed, regardless of the estate’s stated confusion on the issue, it is hard
to imagine that this Court could have been more clear than stating in the second footnote that the
fact the plaintiff was also negligent did not alter the nature of the defendant’s initial duty). And
the discussion of premises liability, an issue neither raised below nor argued by the parties on
appeal or reconsideration, is unnecessary. The only question was whether the trial court
properly granted summary disposition on the basis that Catherine did not act reasonably and,
therefore, Consumers did not owe her a duty. I stand by this Court’s initial analysis.

                                                             /s/ Peter D. O’Connell




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