Torts, Duty and Foreseeability: LEE V. FARMER’S RURAL ELECTRIC COOPERATIVE CORP. (COA 10/19/2007)

LEE V. FARMER’S RURAL ELECTRIC COOPERATIVE CORP.
TORTS: DUTY AND FORESEEABILITY; MARKING POWER LINES AND AIRPLANE ACCIDENT

2006-CA-001641
PUBLISHED: REVERSING AND REMANDING
PANEL: DIXON PRESIDING; VANMETER, GRAVES CONCUR
COUNTY: BARRENT
DATE RENDERED: 10/19/2007

Lee appeals TC’s entry of summary judgment for Farmers RECC in her wrongful death action stemming from an accident in which her husband’s low flying plane struck an unmarked power line 1/4-inch in diameter and stretching 870 feet across the channel of Nolin Lake at a height of 85 feet. FRECC argued that it was under no statutory or common duty to mark this particular power line, and the TC agreed.

On appeal, Lee continued to argue that, at a minimum, FRECC had a common law duty to mark the power line considering that the supporting structures on either side of the lake were concealed by trees and vegetation, that FRECC knew that aircraft frequently flew at a low height over the lake, and the fact that there had been a prior accident involving another unmarked line over Nolin Lake. Thus, Lee maintained that her husband’s accident was foreseeable to FRECC. In response, FRECC maintained its position on a lack of duty and contended that the decedent’s violation of FAA regulations was the proximate cause of his death.

On review, the COA began by noting that in Kentucky a person only owes a duty to exercise ordinary care in those situations where an injury is foreseeable, and that foreseeability is to be determined by reviewing the facts as they reasonably appeared to the party being charged with negligence, not as they appear in hindsight. To demonstrate foreseeability, the claiming party need not demonstrate that the defendant should have been able to anticipate the precise injury sustained or the manner in which it was sustained. Rather, the party only needs to show that an injury of some kind to some person could have been foreseen under the circumstances.

The COA then goes through an analysis of the body of case law cited by both sides from other jurisdictions on whether FRECC could be held liable when it was under no statutory duty to mark this power line, which even Lee conceded. Upon comparing the facts of the particular cases to the present one, the COA noted that rendering a foreseeability determination under these case facts was an "arduous task," even suggesting that submitting the question of foreseeability to a jury much like these other jurisdictions when presented with conflicting evidence would be reasonable in this instance. The COA nevertheless noted that it was bound by Kentucky precedent that deems foreseeability as it relates to duty to be a pure question of law for the court’s determination. As such, the COA concluded that the nature of Lee’s injury was a foreseeable result of FRECC having failed to mark the subject power line given the lack of visibility of both the line itself and supporting structures on either side. The COA of course noted that it would be for a jury to determine whether FRECC breached its deemed duty and whether this breach was the proximate cause of the accident as compared to FRECC’s argument that Lee’s violation of a FAA regulation setting minimum flight altitudes was the actual cause of the accident and his death.

James R. Chadword Kessinger
Schiller, Osbourn, Barnes & Maloney

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