Docket No. 31394.
Decided August 9, 1977. Leave to appeal applied for.
Appeal from Midland, Henry Hart, J. Submitted June 9, 1977, at Grand Rapids. (Docket No. 31394.) Decided August 9, 1977. Leave to appeal applied for.
Complaint by George L. Binder, Jr., and others, against Consumers Power Company, and others, seeking damages for injuries sustained when a well casing pole came into close proximity with an electrical wire owned by defendant Consumers Power Company. Judgment for all defendants. Plaintiff appeals summary judgment in favor of defendant Consumers Power Company. Reversed and remanded for trial.
Sinas, Dramis, Brake, Turner, Boughton, McIntyre Reisig, P.C. (by Charles H. Noble), for plaintiffs.
W.E. Wisner, for defendant Consumers Power Company.
Plaintiffs' complaint alleged that George Binder, Jr., Robert J. Heilig and Ronald H. Heilig suffered electroshock burns when a well casing pole they were using in the routine maintenance of a water well located on the Binder property came in close proximity to an overhead electrical wire owned by defendant Consumers Power Company, causing electricity to arc from the wire to the pole. Sandra Binder alleged damages from loss of her husband's services, and Evelyn Heilig alleged emotional distress from seeing her two sons lying injured and motionless on the ground. Defendant Midland County and its employees, who approved installation of the well, were granted accelerated judgment on the basis of governmental immunity. Defendant Consumers Power Company was granted summary judgment, for failure of plaintiffs to state a claim upon which relief could be granted. GCR 1963, 117.2(1). Plaintiffs appeal only the grant of summary judgment in favor of Consumers Power Company. We reverse.
The disputed portion of plaintiffs' complaint alleges:
"8. That Consumers Power Company had a duty to foresee or anticipate the reasonable probability that a maintenance worker or Plaintiffs working on the Binder's well would come in contact with the high voltage wires in front of the Binder residence; that Defendant Consumers Power Company breached this duty to Plaintiffs by not anticipating or foreseeing Plaintiffs coming in close proximity to Defendants wires and that Plaintiff's injuries as hereinafter alleged were the proximate result of said breach.
"9. That Defendant Consumers Power Company carelessly, negligently and recklessly constructed and maintained a deadly and dangerous `hot' high voltage line too close to an area where it knew or should have known that maintenance workers or Plaintiffs would be working on the well in front of the Binder residence.
"10. That Consumers Power Company knew or should have known that the Binder well located under Defendants power lines needed periodic maintenance and repair and therefore, had a duty to warn or notify Plaintiffs of the presence of high voltage wires, insulated only by airspace; that Consumers Power Company's negligent and reckless failure to so warn Plaintiffs was a proximate cause of Plaintiffs injuries as hereinafter alleged.
"11. That Defendant Consumers Power Company owed a duty to Plaintiffs to insulate the high voltage wires in front of the Binder residence by means other than airspace; that Consumers Power Company's neglect and reckless failure to so properly insulate the wires was a proximate cause of Plaintiff's injuries.
"12. That Consumers Power Company owed a duty to Plaintiff to `de-energize' or to run substantially less voltage through the wires in front of the Binder residence; that Consumers Power Company's negligent and reckless failure to do so caused the electricity in the wires to arc to a well casing pole which Plaintiff's brought in close proximity to the wires, causing severe electroshock and burn injuries to your Plaintiffs."
Defendant Consumers Power Company argues that the complaint does not state a cause of action because, first, plaintiffs' allegations are conclusional rather than factual, so that it has not been informed of the nature of the cause of action, GCR 1963, 111.1(1), and second, those facts which are alleged are not sufficient to state a cause of action in negligence.
GCR 1963, 111.1(1) requires that a complaint contain "a statement of facts without repetition upon which the pleader relies in stating his cause of action with such specific averments as are necessary reasonably to inform the adverse party of the nature of the cause he is called upon to defend".
"[A] motion for summary judgment under GCR 1963, 117.2(1) tests only the legal, not the factual, sufficiency of the pleadings. * * * In our review of such a motion, we are obliged to accept as true all of plaintiff's factual allegations as well as any conclusions which can reasonably be drawn therefrom." Van Liere v. State Highway Department, 59 Mich. App. 133, 137; 229 N.W.2d 369, 371 (1975). (Emphasis in original; citation omitted.)
Mere conclusions alleging liability do not constitute a "statement of facts" under GCR 1963, 111.1(1), and therefore are ignored in evaluating the sufficiency of the complaint. See Stann v. Ford Motor Company, 361 Mich. 225, 232-233; 105 N.W.2d 20, 23-24 (1960). However, the distinction between pleading facts and conclusions should not be applied so formalistically as to bar possibly meritorious claims on technicalities. Crowther v. Ross Chemical Manufacturing Co, 42 Mich. App. 426, 430; 202 N.W.2d 577, 580 (1972). Where a plaintiff's legal theory seems questionable, the factual circumstances surrounding the claim are particularly important in evaluating the theory, so that the appropriate procedural method of testing the claim is a motion for summary judgment under GCR 1963, 117.2(3). Crowther v. Ross Chemical Manufacturing Co, supra, at 430-431; 202 N.W.2d at 580. Thus, "[t]he test which the court should apply in considering motions under GCR 1963, 117.2(1) is whether plaintiff's claim, on the pleadings, is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther, supra.
Although paragraphs 8 through 12 of plaintiffs' complaint contain several inappropriate conclusions of liability, they also allege sufficient facts, when taken in conjunction with the remainder of the complaint, to both inform defendant of the nature of the cause of action, and to state a cause of action in negligence. The complaint informs defendant when, where, and how the accident occurred. It alleges that defendant knew or should have known the well needed periodic maintenance, and by implication alleges defendant knew or should have known of the location of the well. It alleges that, given such knowledge, the accident was foreseeable. It catalogues what plaintiffs believe were defendant's acts and omissions which caused the accident: maintenance of the power line too near the well; failure to warn of the danger; failure to insulate by other than airspace; and failure to de-energize the line.
Defendant asserts that many more facts need to be alleged to state a cause of action in negligence against a utility company for liability where someone is injured through contact with its lines, and relies by analogy on the detailed factual analyses of liability in Koehler v. Detroit Edison Co, 383 Mich. 224; 174 N.W.2d 827 (1970), Williams v. Detroit Edison Co, 63 Mich. App. 559; 234 N.W.2d 702 (1975), Carr v. Detroit Edison Co, 49 Mich. App. 332; 212 N.W.2d 70 (1973), and Dees v. L F Largess Co, 1 Mich. App. 421; 136 N.W.2d 715 (1965). All of these cases were decided after evidential development of the cause of action. See also Wilhelm v. Detroit Edison Co, 56 Mich. App. 116; 224 N.W.2d 289 (1974). Pleadings must be concise. "A pleading shall not state matters of evidence." GCR 1963, 111.9(1). The cases relied upon by defendant point to the need for detailed evidential development before plaintiffs' legal theory can be evaluated. We cannot say that plaintiffs' claim "is so clearly unenforceable as a matter of law that no factual development can possibly justify a right to recovery". Crowther v. Ross Chemical Manufacturing Co, supra.
Reversed and remanded. Costs to plaintiffs.