By Mark A. Barber & Ann Cox Steedman, Hall Booth Smith & Slover, P.C., Atlanta, GA
Safety training is always a major focus for any electric utility. Between OSHA and the National Electrical Safety Code (NESC), many of the most important safety procedures and requirements are now codified. However, these are only minimum standards, and the law continues to require electric utilities to exercise constant vigilance to protect against inadvertent line contacts. 
Utilities which fail to observe careful safety practices can find the courtroom a very hostile place. There are probably several reasons for this, including the catastrophic nature of the injuries, the "20-20 hindsight" phenomenon (whereby every event that has actually happened seems easily forseeable in hindsight), and the anger jurors feel whenever they believe a corporate defendant has placed lives in danger to save money or because of sloppy safety practices. Whatever the reasons, verdicts in catastrophic line contact cases continue to be eye-popping. This article will summarize briefly some of the major verdicts across the country and will discuss what lessons can be learned from them.
During the past five or six years, several states have seen enormous verdicts in electric line contact cases. Of the fifteen cases nationally that ended in jury verdicts for Plaintiffs, eleven were for over one million dollars. Four of the verdicts were for over twenty million dollars. Interestingly, the state of Florida has had two million dollar verdicts in the past two years. While some of the reported cases included allegations that the utility violated the NESC, juries in several cases awarded large verdicts even where the NESC was not violated.
In December of 2002, a federal court jury in the Eastern District of Washington rendered a twenty million dollar verdict in favor of a billboard worker who was shocked and severely injured when he contacted a 14,400 volt power line. The injured claimant argued that the electric utility failed to follow the NESC clearance rules when it moved its power poles during a routine line renovation project. The jury not only found the electric utility liable, but also found them guilty of "reckless misconduct", allowing the verdict to exceed the statutory damage cap that would normally have applied to non-economic damages. ¹
In November of 2003, a jury in Mobile County, Alabama awarded twenty million dollars to the wife of a telephone lineman who was electrocuted while working on a utility pole. ² Since the case involved death, all damages were punitive damages (which is the Alabama rule). This case, Brackett v. Alabama Power Company, involved a road widening project involving both BellSouth Communications and Alabama Power Company. Along the road were several “joint use” utility poles that were being decommissioned by the electric utility and were later removed. During this process, an employee of Alabama Power Company placed a 7,200 volt uninsulated, energized power line within 14 inches of one of the poles and then cleared the area for the BellSouth employees to work on transferring the phone lines off of the old poles. One of BellSouth’s employees came into contact with the power line and died after being electrocuted.
Interestingly, the jury returned a twenty million dollar verdict in the Brackett case despite several problems with the Plaintiffs’ case. First, the BellSouth employee who was electrocuted violated company procedures by entering the exclusive space of Alabama Power Company. However, the jury rejected the defendants’ argument that Plaintiff’s decedent was trespassing when he was electrocuted. Additionally, the chairman of the National Electric Safety Code committee testified that the NESC clearance rules did not apply to this project since it was still under construction. Despite these arguments, and despite the presence of a "big-gun" expert, Plaintiffs successfully argued that the utility was liable.
Another recent case, Klein v. National RR Passenger Corp., ³ involved two teenage boys in Pennsylvania who were severely injured after they came into contact with a 12,500 volt catenary electrical wire while climbing and playing on a train’s boxcar. Despite the fact that the boys were trespassing in the railcars and that the line was located six feet above the train, Plaintiffs alleged that Defendants’ failure to remove the wire or warn of its presence constituted wanton conduct. The jury in the U.S. District Court for the Eastern District of Pennsylvania agreed, awarding $24,227,436 in damages—including $12.5 million in punitive damages.
In a very recent case from California, a San Diego jury awarded over fifty million dollars to the families of several marines whose helicopter hit an unlit utility tower during nighttime maneuvers. 4 The verdict included over forty million dollars in punitive damages. The jury awarded this sum despite the fact that no specific rule was violated by failing to light the tower, and the company policy dictated lights on towers only if they exceeded two hundred feet (which this one did not).
The strong likelihood of large jury verdicts in electric line contact cases has also influenced settlements in recent years. For instance, in California in 2004, a utility company settled with a hunter for twelve million dollars after the hunter was electrocuted by a 12,000 volt fallen power pole. 5 A painter in Wisconsin who was electrocuted while working in a bucket that hit a power line settled with the electric company for five million dollars after he suffered severe burns, blindness, and the amputation of his arm. 6
In Durham County, North Carolina, two teenage brothers were killed during a family sailboat outing with their father and younger brother. 7 The boys were electrocuted after the sailboat’s mast came into contact with overhead power lines owned by the City of New Bern. Plaintiffs’ alleged that the City failed to comply with the NESC’s regulations that the lines should have been 40.5 feet above any body rather than the city’s that were on 20 to 21 foot poles. Despite the city’s denial of liability and claims of contributory negligence, the parties reached a settlement in November of 2005 for $2.2 million. 
What can we learn from these recent verdicts and settlements around the country? First, although compliance with the NESC is almost always necessary to win your electrical contact case, the fact of compliance alone is often not enough. In most states, a violation of the NESC constitutes negligence per se, meaning that the violator can be held liable for the injuries resulting from the violation without any further evidence of negligence by the plaintiffs. 8 On the other hand, “compliance with the NESC or an industry-wide standard is not an absolute defense to a claim of negligence. While it may be evidence of due care, conformity with industry standards is not conclusive on the question of negligence where a reasonable person engaged in the industry would have taken additional precautions under the circumstances.” 9
Accordingly, it is imperative that electrical companies take account of all of surrounding circumstances in cases of energized power lines. Regardless of whether a plaintiff’s contact with an electrical line violates a company policy or a state law against trespassing, owners of these wires will often be held liable where a dangerous contact with the wire was foreseeable. In these cases, due to the prevalence of large jury verdicts, a cost-benefit analysis will often weigh in favor of taking the highest precautions against all foreseeable electrical wire contacts.
Notes:
1 Kunntz v. The Lamar Corporationa and Kootenai Electric Company, CS 00 415 (RHW) (October 18, 2002) (Jury Verdicts Northwest, Inc., Northwest Personal Injury Litigation Reports).
2 Brackett v. Alabama Power Company, CV 02-00435, Mobile County., AL (Nov. 21, 2003)(JAS Publications Vol. I, No. 11)
3 Klein v. National RR Passenger Corp., 04CV955, U.S.D.C. E.D.Pa. (Oct. 26, 2006)(Jury Verdict Review Publications, Inc.; PA Jury Verdict Review and Analysis Vol. 2, Issue 7)
4 See article $55 Million Awarded in Marine Air Crash, Los Angeles Times, September 4, 2008.
5 Cavender v. Roe Utility Co., Fresno County Super. Ct, Cal. (Jan. 7, 2004)(Verdicts, Settlements and Tactics, Feb. 2004)
6 Stephan v. Wis. Elec. Power Co., 03 CV 8731, Milwaukee County, Wis. (Wis. Jury Verdicts, Vol. 16, Issue 3, Case Ref. no. 13, March 2007).
7 Lourenco v. City of New Bern, 04-CVS-1163, Super. Ct of Craven County., NC (Nov. 21. 2003)(Ala. Civ. Trial Rep. 04:01-23)
8 See Gifford v. Four-County Elec. Power Ass'n, 615 So. 2d 1166, 1172 (Miss. 1992); Probart v. Idaho Power Co., 74 Idaho 119, 125 (Idaho 1953); Berry v. Atlantic C. L. R. Co., 273 F.2d 572, 583 (4th Cir. S.C. 1960)
9Schultz v. Consumers Power Co., 443 Mich. 445, 456 (Mich. 1993); See also Cerretti v. Flint Hills Rural Electric Coop. Ass'n, 251 Kan. 347, 353 (Kan. 1992)