North Carolina Court Allows Wrongful Death Suit to Proceed After Sailboat Mast Strikes Overhead Power Line
In an unpublished opinion
, the North Carolina court of appeals has reversed a lower court’s ruling and determined that a wrongful death suit can continue against a power company (Duke Energy) and summer camp operator (FDB) following an electrical accident involving contact between a sailboat mast and an overhead power line. The accident occurred while a camp counselor was attempting to pull a sailboat to shore on a boat ramp when the mast of the boat contacted an overhead power line, killing the counselor.
The court observed that the lake and landing ramp where the camp (Camp Mondamin) was located had a lengthy history of sailboat activity. The court observed that during the summer, the camp instructed campers how to operate sailboats on the lake. The court noted that the sailboats were usually derigged at the sailing docks, located along the shoreline on one side of a peninsula after use and for storage. Staff would remove boats from the water at a “boat ramp” or “boat launch” with the aid of a truck near the wooden docks at camp. The boat ramp is a “lightly graveled sloping ramp down into the lake from the road,” and has been in use for over twenty years.
In their suit the counselor’s survivors alleged that:
“Duke Energy and FDB, LLC knew or should have known that campers and staff at Camp Mondamin were engaged in water-related activities on Lake Summit, including the use of sailboats and the removal of those sailboats by a ramp and roadway that passed underneath its uninsulated, energized, and dangerous high voltage power lines.
Duke Energy and FDB, LLC knew or should have known that campers and staff at Camp Mondamin were likely to be exposed to electrical hazards associated with the uninsulated, energized, and dangerous high voltage power line located over the water’s edge of Lake Summit when removing sailboats from Lake Summit and that such exposure would likely cause serious injury or death by electrocution.
Duke Energy and FDB, LLC knew or should have known that campers and staff at Camp Mondamin removing sailboats from Lake Summit would not likely see a power line above the area where a sailboat was being pulled from the water.
Duke Energy and FDB, LLC knew or should have known that campers and staff at Camp Mondamin removing sailboats from Lake Summit, if they did see the power line above, would be unlikely to judge its height, or to realize that such line was uninsulated, energized, and dangerous and with insufficient vertical clearance for the mast of a sailboat to pass beneath[.]
Under North Carolina law, Duke Energy, as a provider of electric current and as a public utility, had a duty to [Decedent] and others, to protect them from injury by exercising the highest skill, the most consummate care and caution, and the utmost diligence and foresight constructing, locating, maintaining, operating, and inspecting its power distribution system, including its power lines and poles, consistent with the system’s safe and practical operation.
At all relevant times herein, Duke Energy had the ability, power, and control to relocate the uninsulated, energized, and dangerous high voltage power line away from Lake Summit or to otherwise eliminate the hazard and risk associated with accidental human contact with the uninsulated, energized, and dangerous high voltage power line, as required by North Carolina law and the National Electric Safety Code.
Duke Energy, by and through its agents, employees, officers, directors, managers, and representatives, was negligent in the construction, ownership, operation, maintenance, and control of this uninsulated, energized, and dangerous high voltage power line in connection with its sale of electricity in that it did not:
At all relevant times herein, FDB, LLC owed a duty to all lawful visitors of the property on which Camp Mondamin was located, including [Decedent]:
- Install and maintain a power line with an adequate vertical clearance;
- Comply with industry safety customs and practice by installing and maintain a power line with an adequate vertical clearance;
- Design and construct its high voltage power line and support poles with regard for the conditions under which they were to be operated, in a reasonably practical manner that reduced hazard to life and limb;
- Comply with the sound engineering practice by designing and constructing its high voltage power line and support poles with due regard for the conditions under which they were to be operated, in a reasonably practical manner that reduced hazard to life and limb;
- Construct, install and maintain its high voltage power line in a manner that safeguarded [Decedent] and other members of the public from hazards arising from them;
- Properly and adequately design, plan, insulate, guard, protect, maintain, remove, or otherwise isolate its power line on this aforesaid property;
- Inspect its electrical energized power line to ascertain that they were in reasonably safe condition under all the facts and circumstances then and there present;
- Move and relocate its electrically energized power line to a location and position away from the aforesaid location at Lake Summit to reduce or eliminate the hazards of electrical shock;
- Exercise reasonable care to analyze, appreciate, and warn residents of the property, including [Decedent] and others of the dangerous and unsafe conditions then and there existing;
- Exercise the high degree of care required of a supplier of electricity; and
- Adopt and employ proper adequate safety precautions, procedures, measures, programs, and plans.
FDB, LLC, by and through its agents, employees, officers, directors, managers, and representatives, was negligent in that it:
- To keep the premises in reasonably safe condition;
- To inspect for and correct unsafe conditions and hidden dangers; and
- To warn of unsafe conditions and hidden dangers.
- Failed to keep and maintain, or failed to cause the proper upkeep and maintenance of, the property on which Camp Mondamin was located in a reasonably safe condition for reasonably anticipated visitors, including [Decedent];
- Failed to correct, or have Duke Energy correct, the unsafe condition and hidden danger posed by the uninsulated, energized, and dangerous high voltage power operated by campers and staff at Camp Mondamin were routinely pulled from the water; and
- Failed to warn of the unsafe condition and hidden danger posed by the uninsulated, energized, and dangerous high voltage power line beyond the water’s edge of Lake Summit, along the path from the sole ramp where sailboats operated by campers and staff at Camp Mondamin were routinely pulled from the water.”
The defendants responded by denying these allegations, and also asserted affirmative defenses, in particular, the contributory negligence of the deceased camp counselor. Contributory negligence is negligence on the part of the injured person, or, in the case of a wrongful death case, the deceased person or persons. In this case the defendants argued that the camp counselor was negligent in attempting to pull the boat ashore beneath and open and obvious power line.
Under North Carolina law, even if a plaintiff is only one percent responsible for an incident by virtue of his or her own negligence, his claims are barred completely. North Carolina is one of only five states that still recognize this defense.
During the proceedings, the defendants moved for summary judgment, which is simply a motion to dismiss the case based on deficiencies in the plaintiff’s evidence. The trial court ruled that the camp counselor was contributorily negligent as a matter of law and dismissed the lawsuit. The plaintiff appealed to the North Carolina court of appeals.
The court reversed the trial court and reinstated the suit. Citing an earlier case the court ruled that “[t]he existence of contributory negligence is ordinarily a question for the jury; such an issue is rarely appropriate for summary judgment, and only where the evidence establishes a plaintiff’s negligence so clearly that no other reasonable conclusion may be reached.”
The court further held that:
“From [witnesses’] testimony, it is apparent from the record there were procedures established and followed at Camp Mondamin regarding the derigging, transportation, and storage of sailboats and associated equipment by employees. However, Bell and Felder could not testify with personal knowledge to the events surrounding the removal of the sailboat at the ramp. Appley’s recount of the particular facts surrounding Decedent’s electrocution leave many aspects of the case unanswerable at this stage in the proceedings. Much of the deposition testimony develops in detail the procedures, training, traditions, and history of sailing at Camp Mondiman. However, the issue before this Court is whether the evidence inescapably shows Decedent was contributorily negligent as a matter of law, not whether Defendants were negligent….Whether Decedent was contributorily negligent is highly dependent on the facts surrounding the accident on 12 June 2014. Appley, the only witness to the accident, testified he did not know how Decedent was touching the sailboat as it was advancing up the boat ramp, though the complaint alleges Decedent’s hand was on the sailboat. Appley did not see Decedent get electrocuted; however, he did hear a loud noise from behind the truck when he was driving.
From his recollection, Appley could not testify with certainty whether Decedent was aware or knew of the power lines at that particular area of shoreline. Varying descriptions of how high the power lines were at different points on the shoreline, and their visibility against the trees and leaves, cast doubt on whether the power lines themselves were readily visible. Based upon Felder and Bell Jr.’s depositions, it is unclear whether Decedent was told explicitly to avoid a known danger at the boat ramp or he should have known independently of Felder’s instructions the morning of the accident. The senior staff further testified Camp Mondamin had regular practices for sailing, and Decedent purportedly deviated from some of the traditional practices of derigging, but evidence does not establish inescapably Decedent was contributorily negligent as to a known and obvious danger.
A reasonable inference can be made the power lines were not a known danger, and Decedent had a lapse of attention momentarily….In light most favorable to Plaintiffs, reasonable inferences can be made the power lines were not readily visible or obvious due to the surrounding landscape, including vegetation, height of the power lines, and at least two large trees and branches overlapping the power lines at various points above the boat ramp.
Because, here, Plaintiff has raised a material question of fact, we cannot determine conclusively based on the evidence whether Decedent was aware of a known danger at the time of the accident….We cannot say Decedent was aware or knew of the uninsulated, energized power lines above him at the time of his electrocution. Based on the facts developed before trial, taken as a whole, whether Decedent was contributorily negligent as a matter of law is uncertain.”
Put another way, the court ruled that because there was conflicting evidence regarding the counselor’s negligence, granting summary judgment was improper. The case will now proceed toward trial, where a jury will be called upon to determine the issue of contributory negligence.
The defense of contributory negligence is raised by defendants in virtually all electrical accident cases. Accordingly, even though the opinion is unpublished, it should be welcome news to attorneys who represent plaintiffs in electrical accident cases.
At The McGrath Firm we represent clients in personal injury and wrongful death cases arising out of electrical accidents. In fact, Mark McGrath successfully represented the family of two boys who were killed when the mast of their sailboat struck an overhead power line. If you or a loved one has been the victim of an electrical accident, please contact us for a free case evaluation.