Bender v. Duke Power Co.

WELLS, Judge. In his complaint, plaintiff has asserted two theories of negligence, first that defendant placed its poles too close to highway 1-85 for safety of highway users, and second, that because of defendant’s knowledge that its wires at this 1-85 crossing had been previously knocked down by lightning, the overhead wires should have been removed and placed under the highway. In his brief, plaintiff has not argued his first theory. It deserves scant consideration. Known laws of physics dictate that [242] when physical objects supported from the earth’s surface lose their support, they will fall to the ground. The proximity of defendant’s poles to 1-85 would have no causal relationship to the falling down of wires supported by such poles when the poles or the wires are broken by lightning, and therefore the proximity of the poles to the highway, as a matter of law, could not have been a proximate cause of plaintiffs injury. Plaintiffs second theory must be responded to on principles of foreseeability. As in every negligence case, the threshold questions are duty and proximate cause. At the threshold of duty is foreseeability. If under the circumstances of this case, defendant could have reasonably foreseen that placing its wires over 1-85 might result in harm to others, it would be answerable for plaintiffs injury. Plaintiff contends that because lightning had struck these same wires previously and caused them to fall across the highway, defendant could have reasonably foreseen that it would happen again. We cannot agree. While it is clear that defendant could reasonably foresee that lightning could strike its pole lines from time to time, no one can reasonably foresee when or where lightning may strike any particular object. To agree with plaintiff would open a very expensive door. We can take judicial notice that electric lines suspended from poles may be damaged by at least four natural phenomenon over which electric utilities have no control: lightning, wind, ice, and snow. The only way to insure that overhead electric lines crossing public streets or highways might not fall down due to the forces of such natural phenomenon would be to place all such lines underground. The cost of such an undertaking would be so large and hence carry with it such considerations of public policy that it would be entirely inappropriate to establish judicially a precedent for such a requirement. Because defendant could not have reasonably foreseen the events which led to the falling of its wires across 1-85 and plaintiffs injury, defendant was under no duty to place those wires under the highway, and plaintiff was therefore entitled to judgment as a matter of law. We carefully note that under the circumstances of this case, we do not reach the question of the duty of an electric utility after notice to exercise due care to protect others from the harm [243] which might occur from wires broken or knocked down by the natural phenomenon we have mentioned. While we support and adhere to the general rule that summary judgment should rarely be granted in negligence cases, see Moore v. Fieldcrest Mills, Inc., 296 N.C. 467, 251 S.E. 2d 419 (1979) and Williams v. Carolina Power & Light Co., 296 N.C. 400, 250 S.E. 2d 255 (1979), each case must be decided on its own merits. In this case, the materials before the trial court showed that there was no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law, conclusively establishing the lack of actionable negligence on the part of defendant. Affirmed. Judge Braswell concurs. Judge PHILLIPS concurs in the result.