John D. Winer, San Francisco
A. Electrical Accidents Generally.
Some of the most severe injuries suffered by consumers stem from accidents involving electricity. Electrocution can cause death and serious injury; thus, there are special laws which regulate precautions that are necessary when either a consumer or worker has to deal with electricity.
B. Who Can Sue for an Electrical Accident.
Any person injured by an electrical accident can sue if the accident was caused by the negligence or wrongdoing of another, or partially by the negligence or wrongdoing of another. This is true whether the plaintiff is a minor or adult.
However, in cases against members of the same households, important insurance exclusions may prevent recovery of compensation from an insurance company, although it will not prevent compensation from the negligent or responsible person directly.
The spouse of the injured plaintiff can also bring his or her own lawsuit for loss of consortium damages; that is, damages for the loss of society, comfort and care of the injured plaintiff. See the section on Damages in this article.
C. Liability of a Utility Company.
Because of the high risk of serious injury from escaping electricity, a power company or person maintaining electrical wires, must use increased care proportionate to the danger. Thus, when analyzing the misconduct of the defendant, a plaintiff must show that the defendant failed to use ordinary care in the circumstances of the high danger which was necessarily involved with electricity.
It should be noted that a public utility is not an insurer of the property into which it introduces its product unless it agrees by express contract to insure or indemnify for a specific risk.
Thus, in one case, a utility was found to be not liable for failing to shut off gas to a house in the path of a major fire.
D. Liability Stemming from Power Lines.
i. Duty of any person or entity in control of electrical wires.
In any place where a reasonable probability exists that a person might be injured from contact with electrical wires, those in control of the electricity or wires must:
- install and maintain proper insulation.
- place and keep the wires sufficiently clear of the ground, buildings and combustibles.
- guard the wires in some other manner.
ii. Duty of power company to make inspections.
Further, a power company must make reasonable frequent and thorough inspections of its lines to keep them safe from:
- natural deterioration.
- foreseeable uses of the underlying or adjacent property.
- changed conditions that make them hazardous.
A power company is charged with notice of defective or dangerous conditions that diligent inspection would have revealed.
iii. Foreseeability as a liability factor.
A person or entity in control of electrical lines must protect against the possibility of injury from reasonably foreseeable uses of the underlying property by the property owner and the owner's guests and employees.
The victim does not have to prove that the power company should have anticipated an identical accident, it is enough if they can establish the reasonable foreseeability of the likelihood of injury because of the location or condition of the power line.
iv. Must protect against natural conditions that may affect power lines.
Further, one in control of electrical lines must also protect against natural conditions that may foreseeably affect the lines, such as trees falling.
E. What Is the Duty of a Public Utility in an Electrical Accident Case?
The power company has a "non-delegable" duty to construct and maintain its facilities in a safe condition, and it is subject to liability for negligence of a contractor it hires. This means that a public utility power company cannot do anything to escape its duty to construct and maintain its facilities safely.
Further, a power company may also be liable for injuries or death caused by negligence in installing electrical equipment owned by a customer.
F. The Applicability of Strict Product Liability Law.
Electricity or gas, when delivered to a customer's house or apartment, is considered to be a "product" and a public utility can be strictly liable for a "defect" in that product, i.e., a plaintiff only has to prove the existence of a "defective condition," not negligence.
G. Duty of a Power Company Based upon Statute, Regulation or Order.
Power companies are heavily regulated by local, State and Federal government. If the power company violates one of these statutes or regulations, there is a presumption of negligence.
There are numerous regulations and some of the most significant include:
- establishing necessary clearance on an electrical line above the road.
- providing sufficient clearance of an electrical line above the grounds.
- maintenance of insulation material.
- placing specified markings on poles carrying high voltage lines.
- raising a line once the entity knows or should have known that it is too low.
H. Liability of Owners of Property and Liability of Contractors for Electrical Accidents.
There are statutes and regulations which impose duties on the owners of underlying or adjacent structures as well as power companies to maintain safe lines.
The owner of the property over or near which utility lines pass, or a contractor in control of such property or of work being done there, may be liable for injury resulting from failure to protect others by taking such steps as requiring that electric lines be de-energized, posting warnings and safeguards or taking other precautions. The electrical power companies, as well as the owner of property, owes a duty in this regard to anyone on the property, including trespassers.
I. Investigation of electrical burn cases.
i. Common causes of electrical burn injuries.
The two most common causes of electrical burn injuries occur when a person comes into contact with:
- exposed or faulty wiring.
- high voltage power lines.
The injury occurs when the electrical energy burns the body tissues as it passes through the body.
ii. Factors which need to be ascertained by the investigator.
In the investigation of either type of case, it is critical for the investigator to determine:
- the duration of the plaintiff's contact with the electrical source.
- voltage — the intensity of the current.
- whether it was a direct or alternating current.
- the pathway of the current.
- the resistance of the body tissues as the electrical current passes through the body.
The above investigation will help ascertain the seriousness of the electrical burn, the likelihood that a person would be burned by the electrical source at issue and what reasonable steps should have been taken by whoever controlled the electrical source to protect people from it.
iii. Faulty wiring investigation.
a. Determine the source of faulty wiring and who was responsible for it.
In cases in which someone suffers an electrical burn from faulty wiring, which generally occurs at a home or a job site, the focus of the investigation will be on people or companies responsible for manufacturing, installing the wiring and maintaining the wiring.
In the case of a homeowner who is injured, the plaintiff will have to establish that somebody other than the homeowner or one of his or her family members, is responsible for the faulty electrical wiring.
b. Installer of wiring.
Sometimes an investigation of the scene, plus construction records, will indicate that an unlicensed electrical contractor installed the wiring. This, plus documentation of the poor wiring itself, can lead to liability. Liability can be established even if the contractor was licensed if plaintiff can establish substandard installation.
c. Manufacturer of household products.
If wire inside an item like a toaster is improperly installed, this may represent a hidden manufacturing defect which can also lead to liability.
d. Owner, general contractor or subcontractor at construction site as long as wrongdoer not plaintiff's employer.
In terms of electrical burns that occur at construction sites, the key will generally be to establish that the faulty wiring was not obvious to the injured worker and that someone other than the injured worker's employer was responsible for installation and maintenance of the wiring (under most circumstances, a worker's remedy in an accident against their employer is limited to very small worker's compensation benefits).
e. High voltage power line investigation.
1. Focus on the amount of current.
In electrical accidents stemming from contact with high voltage power lines, the investigation is more important, yet generally much more simple. One almost always knows who installed the lines, i.e., the power company, and it is known that any line with more than forty volts is potentially dangerous and a current of greater than 1000 volts is considered to be a high voltage current and is extraordinarily dangerous. If someone comes into contact with high voltage current, they will suffer very, very severe burn injuries or die.
2. How high current burns or electrocutions generally occur.
Cases involving people who are electrocuted or suffer severe electrical burns from high current occur in three principle ways:
- someone either accidentally or intentionally touches a downed power line not realizing that it has live current running through it.
- a person, usually kids, not realizing the danger of power lines, comes into contact with the lines in the process of play.
- people who have to work around power lines, even if they realize their danger, touch one by mistake with a metal tool or slip or wrongly believe that there is no current running through a particular line at the time.
3. Investigate the power company's awareness of potential danger and steps it took or failed to take to protect the public.
The focus of any investigation in these cases should be the power company's awareness that if not properly labeled and guarded, it was likely that a person would come into contact with a power line either by mistake or not realizing that it was dangerous.
Because of the tremendous risk of injury, if someone is at foreseeable risk for coming into contact with a power line, the power company must use increased care and maintenance of the lines in proportion to the increased danger.
4. Investigation in construction site accident involving power lines.
Investigators should focus on who, other than plaintiff's employer, was responsible to protect plaintiff from the danger; the lack of warnings of the danger; and plaintiff's ignorance of the danger. Even if plaintiff was aware of the danger, he or she may still be able to bring a lawsuit.
5. Investigation should focus on defendant's failure to follow standard of care of those who control high voltage power lines.
In any place where reasonable probability exists that a person might be injured from contact with electrical wires, those in control of the electricity or wires must:
- install and maintain proper insulation.
- place and keep the wires sufficiently clear of the ground, buildings and combustibles.
- guard the wires in some other manner.
Further, the power company must perform reasonable inspections of the lines to keep them safe from:
- natural deterioration.
- foreseeable uses of the underlying or adjacent areas.
- changed conditions that make them hazardous.
Thus, an investigation of an electrical burn case will need to focus on the placement of the lines, the condition of the lines, and the guards and warnings around the lines. If any of those factors were inadequate under the circumstances, it will lead to a liability case against the electrical company.
J. The Importance of Expert Witnesses in Electrical Accident Cases.
Most of the factors involved in analyzing accidents caused by electricity are outside of the expertise of the average lay person. Therefore, a plaintiff or plaintiff attorney in an electrical accident case involving a serious injury should probably retain an expert witness on the subject of electricity, safety and, in some situations, human factors. Human factors testimony may be particularly important in a case in which the defense is claiming that the plaintiff knew or should have known of the risks of the electricity that injured them. A human factors expert can testify to the expected behavior of people around electricity and may be able to provide a reasonable "excuse" for the plaintiff's behavior, particularly if the plaintiff is a child.
K. What If the Plaintiff Is Partially at Fault?
A plaintiff can recover even if he or she is also at fault. California is a comparative negligence State in which a negligent plaintiff can recover damages; however, their monetary recovery is reduced by the amount of their fault. For instance, if a court or jury finds that a plaintiff's damages should be valued at a $1,000,000, but finds the plaintiff 25% at fault, his or her recovery would be reduced by $250,000 to $750,000.
L. Compensatory Damages in Electrical Accident Cases.
In an electrical accident case, plaintiff can recover for past medical expenses, future predicted medical expenses, past wage loss, future predicted wage loss and for past and future pain and suffering.
The medical expenses are determined by the testimony of physicians or other health care providers. Frequently, an economist or an expert in the industry determines the amount of future wage loss; however, no expert can testify to the value of pain and suffering.
Pain and suffering is typically the most significant element of a plaintiff's damage and it includes emotional distress. Contrary to popular belief, there is no formula for pain and suffering awards and it varies greatly from case to case depending upon the location of the case, the seriousness of the injury and how well the case is presented.
M. Claim for Loss of Consortium.
A plaintiff's spouse can also sue and recover damages for 'loss of consortium." A spouse is allowed to recover damages for the loss of society, comfort and care that result from the injured spouse's unavailability due to their injury and having to watch the plaintiff suffer. In order to recover these damages, a spouse must be named as a party to the lawsuit and must have been married to the plaintiff at the time of the injury.
There are advantages and disadvantages to filing a loss of consortium claim that should be discussed with an attorney before filing.
N. Punitive Damages.
Under California law, if a plaintiff can prove that the conduct of the wrongdoer was fraudulent, malicious or despicable, he or she is entitled to recover punitive damages which are intended to punish the wrongdoer and provide an example for the rest of society. The focus of this type of case is generally on the wrongdoing of the defendant as opposed to the injury to the plaintiff. The amount of punitive damage will vary depending upon the heinousness of the defendant's misconduct and its economic status. The law recognizes that large companies have to pay more money in punitive damages to be adequately punished than small companies or individuals. In motor vehicle cases, punitive damages are most frequently awarded against drunk drivers.
O. How Soon Must a Case Be Brought After an Electrical Accident?
Although there are a few exceptions, generally speaking in California a case for serious personal injury must be brought within one year of the date of the accident/incident. In rare cases, that time period is extended to one year from the date of the discovery of a wrongdoing and/or an injury. However, be careful. If the case is against a public entity, the claim must be brought within six months of the date of the accident. Except in medical malpractice cases and cases against public entities, minors have until their 19th birthday to bring a case.
P. Considerations in Evaluating Cases for Settlement.
i. Many different factors are taken into consideration when evaluating settlements.
There are many, many factors which are utilized when evaluating a case for settlement. The perception that many of the public have that a case settles for three times the medical bills and wage loss cannot be further from accurate. There are cases that settle for millions of dollars in which there are no medical bills or wage loss and there are cases that settle for a few thousand dollars in which there are hundreds of thousands of dollars of medical bills and wage loss. Following are some of the factors that are relevant to evaluating the case for settlement purposes:
The clarity of liability (i.e., fault) in the case is a critical settlement factor.
In a case in which liability is unclear or the plaintiff has a substantial chance of losing, the settlement value of the case has to be reduced significantly to factor in the plaintiff's chances of losing.
Theoretically, if the value of an injury claim is $100,000, but plaintiff only has a 50/50 chance of winning, a $50,000 settlement may be appropriate. However, plaintiffs must always realize that cases against large defendants or in cases in which the defendant is insured, that the plaintiff has a lot more to lose than the defendant. In the example above, if the insurance company turns down a $50,000 demand and the plaintiff wins $100,000, payment of an additional $50,000 will mean very, very little to a large insurance company or corporation. On the other hand, if the plaintiff turns down the insurance company's $50,000 offer and wins nothing at trial, it could create a devastating financial blow in which the plaintiff is unable to pay for his or her bills.
iii. Comparative fault of the plaintiff.
If a plaintiff is found to be partially at fault for causing his or her own injury, then their potential jury award is reduced on the basis of their percentage of fault. In other words, if a case were to go to trial, and plaintiff were to receive a $100,000 verdict, but was found to be 25% at fault, the plaintiff's verdict would be reduced to $75,000. Thus, when settling a case, plaintiff should reduce his or her expectations of a settlement by the likely finding of percentage of fault that would occur if a case were to be tried.
iv. Likely jury verdict value of the case.
In cases in which insurance policy limits are not an issue, most good attorneys attempt to settle the case based upon what a jury would be likely to award if the case went to trial.
Determining what a jury will award in a given case is more of an art than science; however, reasonable estimates can be made based upon what jurors have awarded in similar cases in similar venues (i.e., locations). Most verdicts are reported in "jury sheets" that lawyers read and utilize when attempting to assess the value of any particular case.
v. Aggravated liability.
In cases in which a jury is likely to get angry at a defendant for misconduct that was something more than negligent, it is known that jurors are likely to "spike" their verdict and award more money for a plaintiff's injury than they would if a defendant's misconduct was merely negligent.
Aggravated liability situations such as a defendant's extreme disregard of the safety of others will increase the risk to the defendant of a large jury award and this should be taken into consideration in settlement.
vi. Punitive damage exposure.
If the defendant's misconduct is so bad that there is a risk for punitive damages, i.e., the jury awarding damages specifically to punish the defendant, this should become a major factor in settlement negotiations. A potential award of punitive damages is complicated by the fact that under the law, the insurance company is not allowed to pay an award for punitive damages; however, normally, the defendant, through a personal attorney, attempts to apply pressure on the insurance carrier to pay more in settlement so that the defendant will not be exposed to the punitive damage risk.
vii. The character and credibility of the parties.
A plaintiff's case is worth more if he or she is likeable and believable. It is known that jurors will award more money to people that they like and believe than people whom they dislike and don't believe.
To a lesser extent, this is also true for defendants. A likeable or believable defendant is likely to fare better in a lawsuit than someone with the opposite traits.
viii. The extent of the injury.
Theoretically, the more serious an injury, the greater should be the value of the plaintiff's case.
ix. Objective evidence of injury.
Injuries that can be visualized or that are able to be demonstrated by radiographic evidence such as x-rays, MRIs, CAT scans or other scientific tests, will normally result in higher settlements than injuries which depend upon the believability of the plaintiff to prove.
There are many injuries which may have severe consequences for the plaintiff which are not diagnosable by objective tests. This can include severe back problems, headaches and pain anywhere in the body. Experience has shown that jurors are hesitant to award large damages in cases in which there is no objective evidence of injury; thus, the settlement value of any case is increased by objective evidence of injury and decreased by the lack of it.
However, a credible plaintiff can sometimes overcome the lack of objective evidence of an injury and this must also be taken into consideration in the right case.
x. Past and future medical bills of the plaintiff.
As long as a plaintiff can establish that past medical expenses and likely future medical expenses are reasonable and related to their injuries, the bills will be an important consideration in settlement.
However, the defense will generally claim some amount of overtreatment and, thus, some portion of the medical bills should be excluded from settlement consideration. Further, the defense will argue that plaintiff will be unlikely to need or have the claimed future treatment and/or the future treatment would not be related to the subject incident.
xi. Past wage loss and future wage loss.
Wage loss is another important consideration in evaluating a claim as long as plaintiff can establish that he or she was off work or will be reasonably off work due to the subject incident. The defense will likely take the position that the amount of the wage loss should be discounted because plaintiff should have been back to work sooner and, in the case of future wage loss, the defense will claim that plaintiff could be doing some type of work which would pay them as much or almost as much as the work they were doing before the incident.
Also, for plaintiffs who are self-employed or do not have a strong consistent earning history before the accident/incident, it can become very difficult to establish a wage loss claim.
xii. Is the injury permanent.
In cases in which plaintiff has a permanent injury and some objective evidence of that injury, there will likely be a higher settlement value because the case will have more jury appeal.
xiii. Venue (where the claim will be tried).
It is beyond question that cases tried in certain locations, particularly urban locations, result in much higher verdicts than cases tried in more rural counties. This is a factor that must be taken into consideration in settlement.
xiv. Policy limits and defendant's assets.
No matter how severe the injury, the plaintiff's ability to recover damages against defendant will be limited by either the defendant's policy limits or the personal assets of the defendant.
However, in cases involving motor vehicles, the plaintiff may have his or her own uninsured or underinsured motorist insurance which would provide additional coverage for the plaintiff's injury and allow the plaintiff to receive further compensation in a settlement with their own insurance carrier.
xv. Target defendants.
Even though jurors are not supposed to consider the wealth of a defendant or whether or not the defendant is a corporation in their verdict, they are far more likely to make larger awards against large companies than they are people who they perceive to be middle class or poor. So this becomes another important settlement consideration.
xvi. Reputation and ability of attorneys.
The claims representative or defense attorney will report to the insurance carrier or defendant the ability of the plaintiff's attorney and the likelihood that the attorney will try a case and try it well.
In situations in which the defense believes that the plaintiff's attorney will not be willing to take the case to trial, there is little incentive to offer a significant amount of money in settlement.
On the other hand, if the defense believes that a plaintiff's attorney will not only go to trial, but will receive an optimum verdict, the defense's risk is increased and thus the settlement value of the case is increased.
By the same token, plaintiffs must also take into consideration the reputation and ability of the defense attorney. If the case is against a good defense attorney, plaintiff will likely receive less money from the jury; thus, the settlement value of the case, to some extent, is decreased.
xvii. Expense of litigation.
The expense of litigation should also be considered in settlement. There are some cases which, if worked up properly, could result in the expenses actually being higher or almost the entire amount of an eventual settlement or verdict.
Some insurance companies and corporations are cost conscious and will take into consideration the expense of proceeding in the case versus early settlement.
However, just because a case may cost the defense $200,000 to litigate does not mean that in a case they otherwise evaluate as being worth $25,000, they are going to offer the plaintiff $200,000 in settlement.
Rather, in the above example, it may cause the corporation or insurance company to raise their offer five or ten thousand dollars or to try to settle the case early for $25,000 before expenses are actually incurred. Corporations and insurance companies are loathe to make offers of settlements based on the cost of defense because of a concern that they will be seen as an easy target for plaintiffs.
This article was authored by John D. Winer. Winer, McKenna, Burritt & Tillis LLP
specializes in catastrophic physical, psychological injury cases and wrongful death cases. The firm handles a significant number of catastrophic injury, traumatic brain injury, elder abuse, sexual abuse and harassment, post traumatic stress disorder and psychotherapist abuse cases. Please visit JohnWiner.com for more information or for a free online consultation.