If this opinion indicates that it is “FOR PUBLICATION,” it is subject to 

revision until final publication in the Michigan Appeals Reports.

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S T A T E O F M I C H I G A N

C O U R T O F A P P E A L S

RUSSELL MCKIE,

Plaintiff-Appellant,

UNPUBLISHED

September 1, 2022

v No. 358845

Monroe Circuit Court

CONSUMERS ENERGY COMPANY, LC No. 20-143029-NI

Defendant-Appellee.

Before: RIORDAN, P.J., and BORRELLO and LETICA, JJ.

PER CURIAM.

Plaintiff appeals as of right the trial court’s order granting summary disposition under MCR 

2.116(C)(10) in favor of defendant, Consumers Energy Company (Consumers), and dismissing 

plaintiff’s complaint. For the reasons set forth in this opinion, we vacate the trial court’s order and 

remand for further proceedings.

I. FACTUAL BACKGROUND

This matter arises from a June 6, 2017 incident in which plaintiff was electrocuted while 

power washing a home for a customer. Plaintiff was self-employed, performing painting and 

power-washing services. He had been in the business for more than 20 years. Plaintiff arrived at 

the customer’s house between approximately 3:00 p.m. and 4:00 p.m. to begin power washing. 

The weather was “good,” and it was light outside. Plaintiff saw the power lines in the back of the 

home before he began power washing the back of the house. According to plaintiff, there were 

wires running in the air at an angle toward one of the back corners of the house. The parties do 

not dispute that these power lines were located within a utility easement held by Consumers. He 

did not know how high the power lines were from the ground, but they “[l]ooked concerning.” 

Plaintiff explained during his deposition that the closest electrical wire was “[d]efinitely . . . the 

closest thing I’ve ever seen to a house” and that “something wasn’t right.” But he believed “that 

the electrical company knew better” and that “[i]f they would put a pole that close to someone’s 

house, that someone should be able to wash it, like I do everyone else’s house.”

Plaintiff began power washing the siding under the gutter at the top of the second story, 

near the back corner where the power lines came closest to the house as they ran at an angle. He 
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used a long spray wand with a metal nozzle. The wand was about 8 or 9 feet long, but it could 

extend up to about 12 or 13 feet. There was evidence in the record that it was extended to 

approximately 12 or 13 feet as plaintiff was power washing that day. He planned to switch to a 

shorter spray wand after he finished cleaning the upper portion of the house so he could avoid 

being close to the power lines as much as possible. 

Plaintiff explained that while power washing the upper story, he “was keeping [the nozzle] 

probably 4 to 6 inches away from the house at all times, ‘cause you got to deep clean, you’re 4 to 

6 inches away from the house.” He estimated that his wand was simultaneously about 6 or 7 feet 

from the closest power line, which was behind him. Plaintiff testified, “I knew what was behind 

me and I definitely knew that there was a huge amount of power behind me, so I was so concerned 

of trying to keep myself with that wand in front of me.” According to plaintiff, “[t]he water was 

shooting towards the wires because it was hitting—you know, I’m shooting on a 45-degree angle 

towards the house, it’s hitting that gutter, which didn’t have much of a soffit,” and there was a 

“cloud of hot steam” because of the 260-degree water used in the power washer. He also testified 

that the “wires weren’t wrapped.”

Within a short time of beginning to power wash this portion of the house, plaintiff was 

electrocuted. Plaintiff maintained that his spray wand was still within 6 inches of the house and 

was still 6 or 7 feet from the power line when he received the electrical shock. Plaintiff stated, “I 

think the wire was getting wet and then it sent the shock over from the wire, to the gutter, down to 

me.” He described the moment the shock occurred as follows:

I seen it all happen, I was looking straight up there, so I watched the water 

molecules and the wire. The wire and the water molecules all came together as one 

and it just shot all the way to the house, and then down to me, and then it was just

fire everywhere.

Plaintiff was eventually able to let go of the spray wand. His left foot was on fire, and a 

neighbor helped put it out. Plaintiff was taken to the hospital by ambulance. He returned to work 

within approximately a week.

II. EXPERT OPINIONS

Plaintiff’s forensic expert, Richard Buchanan, opined that the path of electricity had been 

from the power line, through the mist, through the spray wand, through plaintiff’s body, and to the 

ground. He opined that the wand did not make direct contact with the power line because plaintiff 

would have been more severely injured, and the wand would have incurred more damage, had 

direct contact occurred. Buchanan also explained in his deposition that “the spray wand had a very 

small pinhole burn mark on it which, me, is evidence that there was an arc that initiated the current 

flow from the energized line to the wand.” When asked if he could estimate the distance of the 

arc based on the pinhole, Buchanan responded:

No, that’s almost impossible to do, although, certainly, we know that it 

couldn’t have been too far from the line, I’d say within six inches of the line itself, 

in order to be able to initiate that arc in the spray mist; and, obviously, there’s a lot

of variables that would contribute to determining what that distance had to be, but 
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my best guess is within six inches.

Buchanan thus concluded that the electrical current must have flowed through the mist of 

spray generated by the power washer to the tip of the wand. He also opined that there was no safe 

way to effectively power wash the siding without being in close proximity to the power line.

Defendant’s expert, James Heyl, opined that the fine mist bouncing off the vinyl siding as 

plaintiff operated the power washer would not have been a sufficient conductor for a dangerous 

level of electrical current to flow to plaintiff’s spray wand at any distance greater than 6 inches 

from the power line, and certainly not a distance of 9 feet from the power line, because of the air 

space within a fine mist of water resulting in high resistance to electrical current. However, he 

opined that if the wand came within 6 inches of the power line, or made direct contact with it, the 

wand and the water in the hose could have become energized. According to Heyl, an electrical arc 

could have formed through the air from the power line to the wand if the wand came within an 

inch of the power line. He also opined that such close contact was possible given the height of the 

power lines and the length of plaintiff’s spray wand. Heyl further stated in his report:

Work could have been performed with reduced clearance without 

contacting the power line.

Proximity of the siding to the overhead power line and the length of the 

sprayer would require careful maneuvering to prevent dangerous contact between 

the sprayer and the power line.

It would be possible (but certainly not recommended) for a determined 

worker to ‘sneak’ the sprayer tip upward within the 9-foot horizontal clearance to 

wash top of the wall while standing at the edge of the patio. While certainly 

encroaching into the MIOSHA-required l0-foot clearance zone, the spray wand 

would still have been several feet from the power line.

However, the combined length of the extension pole, sprayer tip, and height 

held above the patio necessary to reach the siding at the top of the wall would place 

the spray tip at about l8 feet above the patio, at the same level as the power line. 

At this height, any movement that raised the sprayer to a vertical position would 

result in a close approach to, or contact, with the power line. 

Both experts appeared to agree that the closest power line was approximately 18.5 feet 

vertically from the ground and approximately as close as 9 feet horizontally from the house.

III. PROCEDURAL HISTORY

Plaintiff alleged in his complaint that defendant had breached its duty to safely maintain, 

position, inspect, repair, and insulate its power lines to protect people conducting reasonably 

foreseeable activity within the vicinity from injury. Consumers moved for summary disposition 

under MCR 2.116(C)(10), arguing that plaintiff’s claim sounded in premises liability because it 

arose out of a condition on land, that the claim was barred because the condition was open and 
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obvious, and that plaintiff still could not establish a claim under ordinary negligence principles 

because defendant had no duty to warn of a known risk and plaintiff could not demonstrate 

proximate causation. Plaintiff opposed the motion.

Following a hearing on the motion, the trial court granted summary disposition in 

Consumers’ favor. The court reasoned:

I have to agree with Defendant’s position in this case. I don’t believe that 

there was a duty on the part of Consumers Energy here, to have to warn or anything 

else like that, or even to move these power lines when they are built in conformity 

with all regulations and standards. There, quite frankly, is no question in the 

Court’s mind here too, that I do believe this is a premises liability issue. And even 

if I were to go that it was ordinary negligence, I accept the fact and what the case 

law cites. Utilities do not owe the duty, and especially when it is such an open and 

an obvious situation.

This is unfortunate what happened to the Plaintiff, I agree. But as defense 

has pointed out, [plaintiff] has been involved in the trade for a substantial period of 

time. He knows the perils and the risk when you are operating in these areas.

And, quite frankly, I think even on a comparative negligence aspect, there 

is probably 50 percent more negligence on his part here for the contact that was 

made. Whether I accept it was his actual wand that hit or it was arcing from the 

water mist, that is something that’s completely foreseeable for somebody that is 

well versed in the trade and can see what is taking place.

IV. STANDARD OF REVIEW

We review de novo the trial court’s summary disposition ruling. El-Khalil v Oakwood 

Healthcare, Inc, 504 Mich 152, 159; 934 NW2d 665 (2019). Summary disposition is proper under 

MCR 2.116(C)(10) when, after considering all evidence in the light most favorable to the party 

opposing the motion, the court determines there is no genuine issue of material fact. Id. at 160. 

“ ‘A genuine issue of material fact exists when the record leaves open an issue upon which 

reasonable minds might differ.’ ” Id. (citation omitted). Whether defendant owed plaintiff a duty 

under the circumstances is a question of law that we review de novo. Fultz v Union-Commerce 

Assoc, 470 Mich 460, 463; 683 NW2d 587 (2004).

V. ANALYSIS

We first address plaintiff’s argument that the trial court erred by granting summary 

disposition based on concluding that defendant did not owe plaintiff a duty, which was influenced 

by the trial court’s determination that plaintiff’s claim sounded a premises liability. Plaintiff 

argues that the trial court’s characterization of the nature of his claim was also erroneous. 

Consumers argues on appeal that the trial court was correct to rule that plaintiff’s claim sounded 

in premises liability.
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“In a premises liability action, a plaintiff must prove the elements of negligence: (1) the 

defendant owed the plaintiff a duty, (2) the defendant breached that duty, (3) the breach was the 

proximate cause of the plaintiff’s injury, and (4) the plaintiff suffered damages.” Buhalis v Trinity 

Continuing Care Servs, 296 Mich App 685, 693; 822 NW2d 254 (2012). “The threshold question 

in a negligence action is whether the defendant owed a duty to the plaintiff. It is axiomatic that 

there can be no tort liability unless defendants owed a duty to plaintiff.” Fultz, 470 Mich at 463

(quotation marks and citation omitted). However,

Michigan law distinguishes between claims arising from ordinary negligence and 

claims premised on a condition of the land. In the latter case, liability arises solely 

from the defendant’s duty as an owner, possessor, or occupier of land. If the 

plaintiff’s injury arose from an allegedly dangerous condition on the land, the action 

sounds in premises liability rather than ordinary negligence; this is true even when 

the plaintiff alleges that the premises possessor created the condition giving rise to 

the plaintiff’s injury. [Buhalis, 296 Mich App at 692 (citations omitted).]

Here, although plaintiff’s complaint did not include a label for his claim, it “is well settled 

that the gravamen of an action is determined by reading the complaint as a whole, and by looking 

beyond mere procedural labels to determine the exact nature of the claim.” Id. at 691-692 

(quotation marks and citation omitted).

Plaintiff’s complaint alleged that “[w]hile power washing the home, mist from the home 

came in contact with the low-hanging power lines, which in turn caused electricity to flow through 

Plaintiff’s spraying wand, resulting in Plaintiff becoming electrocuted.” The complaint alleged 

that “energy companies have an affirmative duty to safely maintain and ensure that powerlines are 

positioned in a manner and location to protect those near the lines, and to inspect, repair, insulate 

and protect all persons conducting reasonably foreseeable activity from injury from the 

powerlines.” Further, the complaint alleged that Consumers “breached this duty by failing to 

properly place their powerlines in a location that would ensure the safety of others conducting 

reasonably foreseeable activity and/or by negligently failing to move the powerlines upon express 

notice of the danger of their lines.”

Consumers maintains that because the power line is a condition on land and is located 

within its easement, plaintiff’s complaint sounded in premises liability. Consumers further argues 

that plaintiff’s claim is thus barred because the power lines were open and obvious. Consumers 

cites Morrow v Boldt, 203 Mich App 324, 329-330; 512 NW2d 83 (1994), for the general rule that 

“it is the owner of an easement, rather than the owner of the servient estate, who has the duty to 

maintain the easement in a safe condition so as to prevent injuries to third parties.”

However, in Schultz v Consumers Power Co, 443 Mich 445, 453-454; 506 NW2d 175 

(1993), our Supreme Court specifically addressed the duty owed by an electric utility company to 

the public with respect to its high-voltage power lines, holding as follows:

Where service wires erected and maintained by an electric utility company 

carry a powerful electric current, so that persons coming into contact with or 

proximity to them are likely to suffer serious injury or death, the company must 

exercise reasonable care to protect the public from danger. The degree of care 
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required is that used by prudent persons in the industry, under like conditions and 

proportionate to the dangers involved, to guard against reasonably foreseeable or 

anticipated contingencies. Electric companies must exercise ordinary care to 

guarantee that equipment is kept in a reasonably safe condition. Although we do 

not follow a rule of absolute liability, the defendant’s duties to inspect and repair 

involve more than merely remedying defective conditions actually brought to its 

attention. [Citation omitted.]

In reaching this conclusion, the Schultz Court explained that “the duty element questions 

whether an actor has a legal obligation to so govern his actions as not to unreasonably endanger 

the person or property of others,” id. at 449, and reasoned as follows:

In determining whether a duty exists, courts examine a wide variety of 

factors, including the relationship of the parties and the foreseeability and nature of 

the risk. Most importantly, for a duty to arise there must exist a sufficient 

relationship between the plaintiff and the defendant . . . .

[T]o require the actor to act, some sort of relationship must 

exist between the actor and the other party which the law or society 

views as sufficiently strong to require more than mere observation 

of the events which unfold on the part of the defendant. It is the fact 

of existence of this relationship which the law usually refers to as a 

duty on the part of the actor.

Clearly, the relationship between the utility company and the decedent was 

sufficient to impose a duty under the circumstances. It is well established that those 

who undertake particular activities or enter into special relationships assume a 

distinctive duty to procure knowledge and experience regarding that activity, 

person, or thing. For example, a landlord must inspect a premises to keep it in a 

reasonably safe condition. Physicians must keep reasonably abreast of current 

advances in their field. Manufacturers must diligently inspect their products to 

discover lurking dangers. Lastly, a carrier owes to its passengers the duty of 

discovering all detectable defects.

Similarly, compelling reasons mandate that a company that maintains and 

employs energized power lines must exercise reasonable care to reduce potential 

hazards as far as practicable. First, electrical energy possesses inherently dangerous 

properties. Second, electric utility companies possess expertise in dealing with 

electrical phenomena and delivering electricity. Lastly, although a reasonable 

person can be charged with the knowledge of certain fundamental facts and laws of 

nature that are part of the universal human experience, such as the dangerous 

properties of electricity, it is well settled that electricity possesses inherently 

dangerous properties requiring expertise in dealing with its phenomena. 

Therefore, pursuant to its duty, a power company has an obligation to reasonably 

inspect and repair wires and other instrumentalities in order to discover and 

remedy hazards and defects. [Id. at 450-451 (citations and some quotation marks 

omitted; emphasis added).]
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This approach to the duty of electrical utility companies has a long history:

Long ago this Court held that utility companies owed the public “the duty 

of safeguarding by reasonable inspection and supervision of its wire . . . and this 

duty was not met by a showing of suitable installation alone . . . .” The Court 

further explained that “[r]easonable supervision to maintain the integrity of the wire 

was required. The purpose of inspection is to discover need of repair and by repair 

prevent injury to persons and damage to property, and the duty is inclusive of 

wanton interference by human agency as well as wear and interference by the 

elements.” [Id. at 454 n 10 (citations omitted; ellipses and alteration in original.)]

In Case v Consumers Power Co, 463 Mich 1, 9; 615 NW2d 17 (2000), our Supreme Court 

explained that “the dangers of high-voltage electricity (fire, electrocution, and death among them)”

justified the obligation to inspect and repair that was imposed on electric utility companies in 

Schultz. The Court further stated:

The “duty” of inspection and repair imposed in Schultz was intended to 

protect against the likelihood of serious injury or death. Clearly, “reasonable care 

under the circumstances” represents a sliding scale. The more severe the potential 

injury, the more resources a reasonable person will expend to try and prevent that 

injury. Similarly, the greater the likelihood that a severe injury will result, the 

greater the lengths a reasonable person will go to prevent it. This principle is widely 

recognized. [Id. (citation omitted).]

Accordingly, our Supreme Court has made clear that an electrical utility company’s duty 

with respect to overhead high-voltage power lines stems from the inherently dangerous properties 

of electricity, the potentially high severity of injury that electricity can cause, and the utility 

company’s possession of the specialized knowledge and expertise in dealing with electrical 

phenomena. See Schultz, 443 Mich at 449-454, 454 n 10; Case, 463 Mich at 9. This duty is not 

imposed based on the mere possession of an easement in which to place the power lines, and this 

action thus does not sound in premises liability. See Buhalis, 296 Mich App at 692. The trial 

court therefore erred by concluding that this action sounded in premises liability and applying that 

framework to justify its decision to grant summary disposition in favor of Consumers.

Nonetheless, as the Schultz Court clarified, this duty does not impose “a rule of absolute 

liability.” Schultz, 443 Mich at 454. The question of an electrical utility company’s duty in a 

particular set of circumstances also involves consideration of “foreseeability,” which 

depends upon whether or not a reasonable man could anticipate that a given event 

might occur under certain conditions. But the mere fact that an event may be 

foreseeable does not impose a duty upon the defendant to take some kind of action 

accordingly. The event which he perceives might occur must pose some sort of 

risk of injury to another person or his property before the actor may be required to 

act. 

Those engaged in transmitting electricity are bound to anticipate ordinary 

use of the area surrounding the lines and to appropriately safeguard the attendant 
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risks. The test to determine whether a duty was owed is not whether the company 

should have anticipated the particular act from which the injury resulted, but 

whether it should have foreseen the probability that injury might result from any 

reasonable activity done on the premises for business, work, or pleasure. [Id. at 

451-452 (quotation marks and citation omitted; emphasis added).]

Here, the trial court failed to apply the above test. Contrary to the trial court’s ruling, 

“[c]ompliance with the [National Electric Safety Code (NESC)] or an industry-wide standard is 

not an absolute defense to a claim of negligence.” Schultz, 443 Mich at 456. The level of 

compliance with industry standards is more properly directed at the question of breach rather than 

duty. Id. “While it may be evidence of due care, conformity with industry standards is not 

conclusive on the question of negligence where a reasonable person engaged in the industry would 

have taken additional precautions under the circumstances.” Id.

Because the trial court applied the incorrect legal framework in resolving defendant’s 

motion for summary disposition, we vacate the trial court’s order and remand for further 

proceedings consistent with this opinion.

Vacated and remanded. We do not retain jurisdiction. Plaintiff having prevailed may tax 

costs. MCR 7.219.

/s/ Michael J. Riordan 

/s/ Stephen L. Borrello 

/s/ Anica Letica