APPEAL FROM THE LEE COUNTY CIRCUIT COURT, NO. 39CV-12-104. HONORABLE L.T. SIMES II, JUDGE.
Etoch Law Firm, by: Louis A. Etoch, for appellant.
Friday, Eldredge & Clark, LLP, by: James C. Baker and Tory H. Lewis, for appellee.
M. MICHAEL KINARD, Judge. GLOVER and HIXSON, JJ., agree.
M. MICHAEL KINARD, Judge
Appellant Calvin Ivory filed a negligence suit against appellee Woodruff Electric Cooperative Corporation after a fire destroyed Ivory's house. He alleged that Woodruff was negligent in the maintenance of its electric poles, lines, and transformers located near his property in that Woodruff had refused to exercise ordinary care by taking measures to prevent known wildlife in the area from interfering with the electrical equipment. Ivory claimed that this allowed a squirrel to interfere with the electrical equipment, which caused the fire that destroyed his property. Ivory also alleged that he was entitled to recover damages under the theory of res ipsa loquitur. The trial court granted summary judgment to Woodruff. Ivory now appeals, arguing that the trial court erred in determining that Woodruff did not owe him a duty and that res ipsa loquitur did not apply. We find merit in his first point and reverse and remand.
In its motion for summary judgment, Woodruff argued that, as a matter of law, it had no legal duty to foresee or protect against harm caused by squirrels. Woodruff also argued that Ivory could not recover under res ipsa loquitur because Woodruff did not maintain control over all of the instrumentalities that led to the fire, including the squirrel and the vacant lot where the fire originated, and the injury occurred absent any negligence on its part. Ivory responded to the motion, and both parties attached excerpts from the deposition of Carl Horton, Woodruff's vice president of member services.
Horton testified that one of Woodruff's goals was to provide safe electrical service. He said that the fire was caused when a squirrel got on the transformer and created a fault current by touching either the top of the bushing or the wire next to the bushing. This caused a line to burn and fall to the ground dropping molten metal. A grass fire started that burned across a lot to Ivory's house.
Horton testified that a critter guard is a device that can be put on transformers to try to keep animals from making contact with the bushing. He said that the transformer where the fire started did not have a critter guard because it was not Woodruff's standard practice to put critter guards on all transformers. Woodruff did put critter guards on transformers that had a history of wildlife-related outages, but this location had never had a wildlife-related outage. Woodruff's newer model transformers were equipped with critter guards and protective covered wire that prevented many contacts from animals and tree limbs. This location did not have covered wire.
Horton said that electric companies know that squirrels can cause a fault current and that it was " pretty common" for a squirrel to cause an outage. He said that those outages sometimes cause the power lines to spark, and the lines can burn and fall to the ground. Horton said that it was not necessarily true that Ivory's house would not have burned if this transformer had a critter guard because critter guards are not one hundred percent effective in preventing animals from causing damage. Horton said that this transformer was in compliance with all of Woodruff's policies as well as the requirements of the National Electric Safety Code, the Public Service Commission, and the Rural Utilities Service.
The trial court found that Woodruff did not have a duty to ...