Cole v. Duke Power Co.

ARNOLD, Judge. The only issue presented here is whether the court was correct in granting defendant’s motion for summary judgment. G.S. 1A-1, Rule 56(c) provides that summary judgment is proper “if the [160] pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.” Summary judgment may be granted in a negligence action. Our Supreme Court, however, has stated that: As a general proposition, issues of negligence are ordinarily not susceptible of summary adjudication either for or against the claimant “but should be resolved by trial in the ordinary manner.” 6 Pt. 2 Moore’s Federal Practice, § 56.17 [42] at 946 (2d ed. 1980). Hence, it is only in exceptional negligence cases that summary judgment is appropriate because the rule of the prudent man, or other applicable standard of care, must be applied, and ordinarily the jury should apply it under appropriate instructions from the court. Vassey v. Burch, 301 N.C. 68, 73, 269 S.E. 2d 137, 140 (1980); see also Williams v. Power & Light Co., 296 N.C. 400, 402, 250 S.E. 2d 255, 257 (1979); W. Shuford, North Carolina Civil Practice and Procedure § 56-7 (1981). Plaintiff argues that this is not one of those “exceptional negligence cases” in which it is proper to grant summary judgment. He argues that there was a genuine issue as to whether defendant was negligent because of the failure to post warning signs. In discussing the standard of care required of electric companies, our Supreme Court has stated that they are required to use reasonable care in the construction and maintenance of their lines and apparatus. The degree of care which will satisfy this requirement varies, of course, with the circumstances, but it must always be commensurate with the dangers involved, and where the wires maintained by a company are designed to carry a strong and powerful current of electricity, the law imposes upon the company the duty of exercising the utmost care and prudence consistent with the practical operation of its business, to avoid injury to those likely to come in contact with its wires. Helms v. Power Co., 192 N.C. 784, 786, 136 S.E. 9, 10 (1926); see also Alford v. Washington, 238 N.C. 694, 699, 78 S.E. 2d 915, 919 [161] (1953); Bogle v. Power Co., 27 N.C. App. 318, 321, 219 S.E. 2d 308, 310 (1975), disc. rev. denied, 289 N.C. 296, 222 S.E. 2d 695 (1976). Further, while the National Electrical Safety Code is instructive as to whether an electric company used reasonable care, it is not decisive on the issue of negligence. Rather, the prudent man rule still controls. Hale v. Power Co., 40 N.C. App. 202, 204, 252 S.E. 2d 265, 267, disc. rev. denied, 297 N.C. 452, 256 S.E. 2d 805 (1979). Here, plaintiffs expert stated in his deposition that it was a deviation from standard practice not to have warning signs posted on the cabinet. He also stated that the National Electrical Safety Code requires that defendant post warning signs on the cabinet. Further, the cabinet was in a residential area in which children often played. We agree with plaintiff that this is not one of the “exceptional negligence” cases in which summary judgment is proper. Reasonable minds could differ as to whether, when an electric company places a cabinet containing high voltage in a residential area, it should place warning signs on the cabinet. Further, a statement made by plaintiffs intestate before entering the cabinet that the wires were not dangerous tends to show that had warning signs been posted, the accident would not have occurred. Reversed. Judges BECTON and Eagles concur.