Fowler v. Tennessee Valley Authority (208 F. Supp. 828, 1962)

FRANK W. WILSON, District Judge.

These two suits are actions for alleged wrongful death of two men who were electrocuted when the television antenna which they were attempting to install on a roof came in contact with a high voltage power line. The accident occurred upon March 17, 1960 at McMinnville, Tennessee. It was originally alleged that both the Tennessee Valley Authority and the McMinnville Electric System were responsible for the conditions causing the deaths, but the suits have subsequently been dismissed as to McMinnville Electric System and remain pending only as to the TVA. The plaintiffs seek damages for wrongful death in the first count of the complaints, seek damages for mutilation of the decedents' bodies in the second count of the complaints and seek punitive damages in the third count of the complaints.

The cases are now before the Court upon the defendant’s motions for summary judgment as to each count in the complaints. The grounds upon which the TVA seeks summary judgment are as follows:

(1) The TVA owed no duty to the decedents.

(2) The decedents were guilty of contributory negligence as a matter of law.

(3) Mutilation of a body which accompanies an accidental killing does not give rise to a cause of action.

(4) An action for punitive damages will not lie against the TVA.

In support of its motions the TVA has filed two affidavits. One affidavit is that of Clyde Winters, the manager of the McMinnville Electric System, who states that the electric lines at the point of the electrocution were the lines of the McMinnville Electric System and that the TVA had no ownership of or responsibility for said line. The other affidavit was that of Kenneth E. Hapgood, the director of the Power Planning and Engineering Division, Tennessee Valley Authority, who explains that the automatic oil circuit breaker located at the substation where power is delivered by the TVA to the McMinnville Electric System was installed to protect the TVA equipment, not the McMinnville lines, and to assure continuity of service by preventing more than momentary interruptions by faults which are temporary or of insufficient magnitude to damage TVA equipment. He further explains-in a general way the operation of automatic oil circuit breakers. By its answer the TVA denies that it was in any way responsible for the electric lines at the point where the electrocution occurred, these lines being alleged to be the sole responsibility of McMinnville Electric System and the TVA substation for delivery of power to the McMinnville System being located approximately one and one-half miles from the scene of the accident. A verified copy of the contract between the TVA and the McMinnville Electric System filed as an exhibit to the answer contains provisions which relieve each of the parties thereto from any responsibility for the other party’s lines or for installing at any delivery point equipment for the protection of the other’s facilities.

Upon the basis of the record in this cause it therefore appears undisputed that this accident occurred upon lines belonging to the McMinnville Electric System and that the TVA’s only connection with the accident arises from the fact that it supplied electric power to the Mc-Minnville System. An automatic circuit breaker was located nearby at the TVA substation at which TVA’s lines ended and McMinnville’s began.

Upon this state of facts, the TVA contends that it would owe no duty to the decedents and would therefore not be liable either for the wrongful deaths or alleged mutilation of the bodies. The plaintiffs on the other hand claim that although the TVA did not own the electrical lines at the point of the accident, that by the installation of the automatic circuit breaker and the manner of its operation the TVA thereby assumed a responsibility for the McMinnville lines and incurred a duty toward the plaintiffs’ decedents. The plaintiffs further claim that the automatic circuit breaker of TVA shut off the current when the decedents first brought the antenna into contact with the • McMinnville line, and was then either re-engaged manually by a TVA agent who was negligent in failing to ascertain that such re-engagement would be safe, or was automatically reengaged by the circuit breaker, which then malfunctioned and failed to break the current again.

It is well settled in Tennessee that a supplier of electricity has no duty to inspect the lines of its customers and is generally not liable for any injuries which occur upon such lines. Dabbs v. Tennessee Valley Authority, 194 Tenn. 185, 250 S.W.2d 67. The Dabbs case, however, recognizes two exceptions to this rule. One exception occurs when the supplier receives notice of a defect or dangerous condition on the lines of its customer. In this situation the supplier has a duty to exercise the “highest or utmost degree of care” to prevent harm to its customers or third persons by reason of the defect or dangerous condition. Null v. Electric Power Board of Nashville, 30 Tenn.App. 696, 210 S.W.2d 490. The other exception to the general rule of nonliability on the part of a supplier occurs when the supplier in some manner assumes responsibility for its customer’s lines. The Dabbs ease is not very explicit upon this point, but it appears that such an assumption places the supplier in the same position as the owner of the lines, and its duty is again to exercise the highest and utmost degree of care to prevent injury.

The plaintiffs rely upon both of these exceptions, claiming that TVA’s installation of the automatic circuit breaker constituted an assumption by TVA of responsibility for McMinnville’s lines and that the operation of the automatic circuit breaker constituted notice to the TVA of a defect or dangerous condition upon the McMinnville lines.

In the Dabbs case, the Court declined to apply the assumption theory, stating:

“The declaration does not allege that the automatic switch at the Parsons Sub-station was intended to protect the lines of the Cooperative; there is no allegation that TVA undertook to maintain that switch for the benefit of the Cooperative; there is no allegation that the Cooperative relied on the presence of the automatic switch.”

In the present case the plaintiffs allege in their complaints that TVA did undertake and intend to maintain its circuit breaker for the benefit of Mc-Minnville, and that McMinnville relied upon such circuit breaker. On the other hand, TVA has filed the affidavit of Kenneth E. Hapgood, stating as summarized above, that the circuit breaker was installed solely for the protection of the TVA facilities and to assure continuity of service. There is no counter affidavit. The affidavit of Mr. Hapgood would therefore effectively contradict the allegation of the complaints that the circuit breaker was for the protection of McMinnville’s lines and that the TVA had therefore assumed the responsibility for McMinnville’s lines. Consequently, insofar as the plaintiffs seek recovery upon the theory that TVA had assumed responsibility for McMinnville’s lines, the motion for summary judgment must be sustained, the plaintiff having produced no evidence to show that there is a genuine dispute of fact upon this point. Appolonio v. Baxter, 6 Cir., 217 F.2d 267; 3 Barron & Holtzoff, Federal Practice and Procedure, § 1235.1.

The only remaining theory upon which the plaintiffs might be entitled to recover would be upon the plaintiffs’ contention that the TVA received notice of a defect or dangerous condition upon the McMinnville lines by the automatic disengagement of the circuit breaker. It is alleged by the plaintiffs that the operation of the automatic circuit breaker was in itself notice to the TVA of a defect or dangerous condition upon the Mc-Minnville lines. It is also contended by the plaintiffs, in the alternative, that the flow of current was either automatically and/or manually restored, thus inferring actual notice to the TVA employee alleged to have manually restored the flow of current. Upon the other hand, it does not appear from the record the exact manner in which the circuit breakers operated upon this occasion, whether it was or was not defective in its operation, whether it was or was not manually reset or whether it did or did not give any type of notice to the TVA of a defect or dangerous condition upon the lines of its customer. In addition the parties have not briefed the notice question at all, the plaintiffs having assumed that the disengagement of the circuit breaker constituted notice and the TVA having assumed that it did not. In this respect it does not appear that the proof is sufficiently developed for the plaintiffs’ claim to be put out summarily.

It would appear however that the facts might be fully developed as to the actual operation of the circuit breaker upon this occasion as to its supervision or observation by any TVA agent and as to the circumstances under which the flow of electricity was restored, whether manually or automatically, and if automatically whether as a result of any malfunction of the circuit breaker. Should these matters appear undisputed in the record it might then be possible to consider further the legal issues as to whether the TVA would have such notice as to impose upon it a duty to use the highest and utmost degree of care to prevent harm to third persons injured upon the lines of its customers. Even though the facts were undisputed, there appears to be a scarcity of legal precedent in this field and further briefing of the issue would be appropriate. See 57 A.L.R. 1065. These legal issues must be met at some stage in the trial of these cases and it would appear appropriate that this should be done before the time and expense of trials are incurred. Therefore, in overruling the motion for summary judgment upon the ground stated above, the Court is not precluding the filing of further motions, affidavits, counter affidavits or discovery.

Having resolved the issue as to whether the TVA owed any duty unto the plaintiffs’ decedents adversely to the TVA there remain for consideration the additional grounds in the motion for summary judgment. The second contention of the TVA is that the decedents were guilty of contributory negligence as a matter of law. The factual allegations before the Court in this regard are those contained in the complaints and the answers. The complaints are vague as to the manner in which the antenna came into contact with the high voltage line, However, detailed and specific pleading are not required under the Federal Rules, with discovery and other means of disclosure being available to provide the specifics of general allegations in the pleadings. Moreover, there were two decedents and while one may have been guilty of contributory negligence, the other may have been free of such negligence. It is impossible to determine these matters with definiteness at this time. Moreover, even though it were assumed that both of the decedents were guilty of contributory negligence in first bringing the antenna into contact with the high voltage line, still it is the second shock, after a break in the current, which the plaintiffs insist constitutes the negligence of TVA. This therefore might be a situation in which the last clear chance doctrine might apply. The motion for summary judgment will therefore be overruled as to this ground.

The third basis for a motion for summary judgment is founded upon the contention that the mutilation of a body which accompanies a killing does not give rise to a cause of action. This ground of the motion is directed specifically to count three in each complaint.

The complaints allege that when the antenna first came into contact with the power line, the shock knocked the decedexits off of the roof onto the ground, rendering them unconscious, and that the TVA’s automatic circuit breaker shut off the flow of electricity through the line. Then, according to the complaints, the power resumed, either automatically or because an agent of the TVA reengaged the switch manually. The complaints further state that it was the seeond shock which both killed and mutilated the bodies of the decedents.

The defendant points out that under the, law the mutilation of a corpse which aecompanies a killing is not actionable, so that, for example, a person who is struck and killed by a train, and whose corpse is then mutilated by the wheels of the car, has not been mutilated under such circumstances as to give rise to a cause of action for mutilation on the part of his next of kin.

“For any mutilation incident to death, there would seem to be no separate liability, but for any further mutilation of the body after death, if done willfully, recklessly, wantonly, unlawfully or negligently, there is liability.” 15 Am.Jur., “Bead Bodies”, Sec. 26.

, The plaintiffs concede that this is the law but say that the decedents may have been killed by the first shock, in which case they admit tbaj tbey woald bave n° cause of action for wrongful death, but contend that they might have one for mutilation under their allegation tba* ^ was tbe secomnd sh°ck wblch mutilated the bodies. The Planttiff contend that question of which Shock killed tbe d^edents is a jury question and that they should not be required to elect between an action for mutilation and an action for wrongful death before a jury ^as determined the factual question as preciseiy how the decedents were iú}¡e(j.

That the plaintiffs are^ entitled to make such inconsistent claims is established by Rule 8(e) (2) of the Federal Rfs ?+f. Civil 28 U-S'C-A” where 18 Provided Aat:

“A party may set forth two or more statements of a claim or deffnse alternately or hypothetically, either in one count or defense or in separate counts or defenses, * * A party may also state as many separate claims or defenses as he has regardless of consistency an