Facts:
Timmy Smith is a 12-year-old boy who enjoys climbing trees. The Smith family just moved into a new house. The electrical wires to Timmy’s house run from an electric pole through the high branches of an oak tree in his backyard.
While the rest of the family was moving into the home, Timmy ran to the backyard to climb the tree. As he neared the top, he grabbed the electrical wires with his right hand. The wires were not insulated and Timmy was severely burned from the resulting electrical shock. He also broke both his legs when he fell, unconscious, from the tree. Can Timmy’s father successfully sue the utility company for negligence? Why or why not?
Answer:
The events in this fact pattern give rise to a cause of action for negligence. The issue is whether the electric company was negligent in allowing live, uninsulated electrical wires to be accessible to the public when those wires ran through the branches of a tree. To prevail in a cause of action for negligence, the plaintiff must prove that: (1) the defendant owed a duty of care to the plaintiff, (2) the defendant breached that duty, (3) the breach was the proximate cause of the plaintiff’s injury, and (4) the plaintiff sustained damages. [1]
In applying the facts of this case to existing precedent, we look to Dolata v. Ohio Edison Co., where in Dolata, the events are analogous to this case. [2] In Dolata, Wayne Allen Dolata was a ten-year-old child who, along with other youngsters, was playing in and around a locust tree located on the Dolata property. [3] Wayne, had climbed the tree and somehow came into contact with a high voltage electric line and was killed. [4] The court in Dolata found that the company had a duty to act to avoid the causation of injury when foreseeable, and the child’s climbing of the tree and contact with the power lines was foreseeable. [5] Because of these facts, we can establish that in our case, a duty was also owed to Timmy. The court in Dolata also held that a company may be held liable for damages sustained as a result of the failure of the company to exercise due care in the construction, maintenance or inspection of its equipment if such injury may be anticipated with a reasonable degree of probability. [6] As applicable to this fact pattern, Dolata holds that it is reasonable to expect a child to climb a tree in the backyard. [7] Because of this fact, when the company failed to either inspect the property for hazardous conditions, or failed to trim back the tree to negate access to the power lines, the company was in breach of its duty of care to Timothy and this breach which allowed the tree to grow and conceal the powerlines was a proximate cause of the physical damages sustained by Timmy. Timmy’s damages included receiving two broken legs when the shock from the powerline caused Timmy to fall from the tree, resulting in Timmy breaking his legs. The attractive nuisance doctrine is applicable to children who trespass. Timothy was not a trespasser in this fact pattern. Therefore, the attractive nuisance doctrine does not apply. [7] Because of the facts and the fact law analysis in this fact pattern, it is likely that Timmy’s father would prevail in a negligence cause of action for damages sustained by Timmy when he touched the powerlines.
[1] Cathy J. Okrent & William R. Buckley, Torts and personal injury law 21 (5th ed. 2015).
[2] Dolata v. Ohio Edison Co., 2 Ohio App. 3d 293, 441 N.E.2d 837 (Ct. App. 1981).
[3] Id.
[4] Id.
[5] Id.
[6] Id. at 296.
[7] Okrent, 98.
