Opinion

Otte v. Dayton Power & Light Co.

  • 37 Ohio St. 3d 33
  • 523 N.E.2d 835
  • 1988 Ohio LEXIS 140
Court
Ohio Supreme Court
Filed
May 25, 1988
Status
Published
Author
Locher
On the bench
Brown, Douglas, Holmes, Locher, Moyer, Sweeney, Wright
Cited by
58 cases
Authority
More cited than 15.1%

stating that the jury found the plaintiff-farmer 49 percent at fault and the defendant-utility 51 percent at fault

How later courts described this case

  • stating that the jury found the plaintiff-farmer 49 percent at fault and the defendant-utility 51 percent at fault
  • Stray voltage “has no benefit to [and] ... is clearly not the subject of a ‘sale’ to a consumer____”
  • consumers "do not pay for individual electrically charged particles. Rather they pay for each kilowatt hour provided. Thus, consumers are charged for the length of time electricity flows through their systems."
  • “Consumers, moreover, do not pay for individual electrically charged particles. Rather, they pay for each kilowatt hour provided. Thus, consumers are charged for the length of time electricity flows through their electrical systems. They are not paying for individual products but for the privilege of using . . . service.”

Written by the judges who cited it.

The opinion

Locher, J.,

concurring in part and dissenting in part. I concur in Parts I and IV of today’s decision. I also agree *42 with the syllabus. However, I cannot agree that a public utility necessarily meets the required “higher degree of care” test simply by following industry standards such as the National Electric Safety Code. The majority’s position is inferred from my interpretation of Parts II and III of the majority opinion.

In Kohli v. Pub. Util. Comm. (1985), 18 Ohio St. 3d 12, 14-15 , 18 OBR 10, 12, 479 N.E. 2d 840, 842 , this court stated:

“Parenthetically, we would also remind the utilities that the range of their responsibilities to the public is not limited solely by industry standards and commission regulations. As Justice Oliver Wendell Holmes noted in Texas & Pacific Ry. Co. v. Behymer (1903), 189 U.S. 468 , 470: ‘What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.’ With respect to a power company the standard is not merely reasonable prudence but is ‘the highest degree of care.’ Hetrick v. Marion-Reserve Power Co. (1943), 141 Ohio St. 347 [ 25 O.O. 467 ], paragraph two of the syllabus.” (Emphasis added.)

While the majority opinion reinforces this court’s adoption of the “highest degree of care” standard for power companies, it is my view that Part II and a portion of Part III of the opinion read in conjunction with Kohli, supra, send a mixed signal to the bench and bar of this state.

As a result, I concur separately and also reiterate the statement made in the last sentence of Kohli , urging utilities to “warn their consumers of the potential dangers of neutral-to-earth voltage.” Id. at 15 , 18 OBR at 12, 479 N.E. 2d at 843 .

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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