Dillon v. Twin State Gas & Electric

New Hampshire Supreme Court · Torts

TortsDutyTrespassersNegligenceProximate CauseDamagesknown trespassersanticipated trespassers

Facts

The defendant maintained electric wires over the upper framework of a city bridge, and there was evidence that boys commonly climbed and played on the bridge girders. The defendant's construction foreman had previously complained to the city marshal about boys using the bridge as a playground and had referred to the defendant's wires, supporting an inference that the defendant had notice of that practice. Evidence also tended to show practical changes in the lamp and wire arrangement that would have moved or insulated the wires to avoid or lessen danger to someone on the girders. The decedent, a boy on the girders, lost his balance and instinctively grabbed a wire, was electrocuted, and died.

Issue

Did the defendant owe a duty of reasonable care to a boy who was wrongfully on the bridge girders but whose presence there was reasonably to be anticipated, and if so, how does the decedent's probable fate absent the electric current affect liability and damages?

Rule

A defendant must use reasonable care to protect persons whose presence near a dangerous condition is known or should reasonably be anticipated, even if they are trespassers or are otherwise engaged in wrongful conduct. The duty arises when the defendant has notice of probable presence and may require affirmative precautions against dangers the defendant maintains. But actionable negligence requires legally cognizable damage, so if the plaintiff would probably have died or suffered serious injury anyway absent the defendant's negligent force, recovery is limited accordingly to the value of the life or earning capacity the plaintiff would probably have had but for that force, and if death was otherwise probable there is no recovery except for any conscious suffering caused by the shock.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

In Providence, Beacon Harbor Power maintained uninsulated feeder lines a few feet from the top of an abandoned freight platform. Its site supervisor had repeatedly complained to a nearby property manager that neighborhood teenagers were climbing onto the platform roof at night, and internal emails mentioned the danger posed by the lines. Sixteen-year-old Luis Moreno climbed onto the roof, slipped, and instinctively grabbed a line, suffering fatal electrocution.

Luis's estate sues Beacon Harbor Power for negligence. What is the strongest argument that the utility owed Luis a duty of reasonable care?

Explanation. The majority rule is that a defendant must use reasonable care toward trespassers whose presence is known or should reasonably be anticipated near a dangerous condition the defendant maintains. Actual contemporaneous observation is unnecessary once the defendant has notice of probable presence. The opinion rejects a categorical no-duty rule based solely on the injured person's wrongful presence. (Derived from Dillon v. Twin State Gas & Electric (n.d.).)