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This case study arises from Jacob Kirkendall v. Pacific Gas and Electric Company, Santa Cruz County Superior Court No.: CV-166206. It focuses on the obligation of an electrical utility to maintain for its electrical distribution system safe from the hazard of tree limbs clear from its power lines.
What is essentially common sense has been codified in statutes, public utility regulations and internal procedures and detailed in case law which nonetheless were not followed and resulted in tragic injuries for a young man.
Jacob Kirkendall, age 17, was at a birthday outing with friends at the Rio Del Mar State Beach in Aptos, California. At 10 p.m., Jacob saw a small brush fire on the hillside near the parking area. He rushed to the fire to put it out before it spread. As he started to extinguish the fire, Jacob was electrified by a downed and energized PG&E power line and was electrocuted.
The power lines passed along the paved public parking lot for the state beach and through a grove of large eucalyptus trees, adjacent to a trail that provides beach access for pedestrians.
The line was downed by a decayed thirty-six (36) foot limb that fell from a height of 75 feet and took down three high voltage power lines.
After Jacob was electrocuted, the downed power lines continued to arc intermittently for more than an hour before PG&E de-energized the circuit. Captain Gregory Hansen of the Aptos/La Selva fire department reported he timed the high intensity “bluish” arcs so that he could reach Jacob and pull him to safety without injuring himself.
PG&E’s claimed that once the line separated a fuse closed the circuit. Commonly, ground fault interruption sensors are set to turn off when a power line discharges into the ground or “goes to ground.” Utility GFIs can be set to automatically re-engaged and re- energized a circuit which accounts for the continuing arcing of the downed line during Captain Hansen’s rescue.
PG&E is required to exercise the highest degree of care and diligence when generating, transmitting and distributing electricity, as well as in the maintenance, servicing and upkeep of its equipment and any encroaching vegetation.
The Rio Del Mar State Beach power lines run through a eucalyptus grove that have a longstanding history of downings . PG&E records show that between January 1, 1999 and June 28, 2009, the lines that were involved in Jacob’s injury failed at least thirty-five times, or roughly three times a year, with an average service loss of five hours. Of the thirty-five service outages, at least 20 were due to vegetation. In addition to major outages, these same lines had at least twenty-seven momentary outages between April 23, 1999, through April 6, 2009.
PG&E failed to follow common sense tree management guidelines, public utility regulations, and its own internal vegetation management policies.
PG&E claimed in a motion to dismiss Jacob’s case that it was not liable for Jacob’s injuries because it complied with applicable codes and regulations.
Under the law, compliance with a regulation is only a part of the determination whether a utility has acted with due care that was required under the circumstances. See Amos v. Alpha Property Management (1999) 73 Cal.App.4th 895, 901, citing to Nevis v. Pacific Gas & Electric Co. (1954) 43 Cal.2d 626, 630; Perrine v. Pacific Gas & Elec. Co. (1960) 186 Cal.App.2d 442, 448; 6 Witkin, Summary of Cal. Law(10th ed. 2005) Torts, §899, p.132 and cases cited therein.
The controlling rule is stated in Perrine: “We are mindful that even though [PG&E] complied with all applicable governmental safety regulations, this would not serve to absolve it from a charge of negligence, but just negligence per se, for one may act in strict conformity with the terms of such enactments and yet not exercise the amount of care which is required under the circumstances.” See Perrine v. Pacific Gas & Elec. Co. (1960) 186 Cal.App.2d 442, 448. See also 6 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, §899, p.132.
This well-established principle was earlier enunciated in Jensen v. Southern Pac. Co. (1954) 129 Cal.App.2d 67, where the railroad maintained a warning device at a crossing, pursuant to an order of the Public Utilities Commission, and claimed it exonerated the railroad from liability: “The state, in prescribing such safety regulations (whether done by legislative enactment expressed in a statute or by action of the commission expressed in an order), has never gone so far as to say to a utility company that compliance therewith constitutes a complete discharge of its duties toward the public. The state does not undertake to foresee and declare in advance what, under all circumstances, constitutes ordinary care. Regulations of this nature lay down minimum, not maximum, requirements.” See Jensen v. Southern Pac. Co. (1954) 129 Cal.App.2d 67, 72.
Accordingly, PG&E was not insulated from responsibility for Jacob’s injuries simply because PG&E met the minimum standards applicable to vegetation management around its power lines.
Indeed, PG&E has the exclusive responsibility to inspect and maintain its power lines to be free of encroaching vegetation under state statute, case law, and CPUC regulations which in summary require that any tree branches that may fall on a power line shall be removed, felled, cut or trimmed.
PG&E has the obligation to maintain safe distances between their power lines and neighboring tree limbs. See Pub. Resources Code § 4293. PG&E has “a duty to make the wires safe under all the exigencies created by the surrounding circumstances.” See Scally v. Pacific Gas & Electric Co. (1972) 23 Cal.App.3d 806, 816. “[I]n the places where there is a probability of injury, they [PG&E] must not only make the wires safe by proper insulation, [PG&E must also] ‘keep them so by vigilant oversight and repair.’” See Polk v. City of Los Angeles (1945) 26 Cal.2d 519, 525, citations omitted.
Additionally, the California Public Utilities Commission has implemented numerous regulations addressing tree limbs and power lines in Rules for Overhead Line Construction, General Order 95, Rule 35, which contain rigid standards to keep tree limbs clear from its power lines and imposes a continuing duty to be vigilant with oversight and repair. General Order 95, Rule 35: Tree Pruning specifically states as follows:
- Where overhead wires pass through trees, safety and reliability of service demand that tree pruning be done in order that the wires may clear branches and foliage by a reasonable distance. The minimum clearances established in Table 1, Case 13, measured between line conductors and vegetation under normal conditions, shall be maintained.
When a utility has actual knowledge, obtained either through normal operating practices or notification to the utility, dead, rotten and diseased trees or portions thereof, that overhang or lean toward and may fall into a span, should be removed. (emphasis added).
Moreover, Public Resources Code §4293 states in pertinent part as follows:
- [A]ny person that owns, controls, operates, or maintains any electrical transmission or distribution line upon any mountainous land, or in forest-covered land, brush-covered land, or grass-covered land shall, during such times and in such areas as are determined to be necessary by the director or the agency which has primary responsibility for the fire protection of such areas, maintain a clearance or the respective distances which are specified in this section in all directions between all vegetation and all conductors which are carrying electric current:
(a) For any line which is operating at 2,400 or more volts, but less than 72,000 volts, four feet.
Dead trees, old decadent or rotten trees, trees weakened by decay or disease and trees or portions thereof that are leaning toward the line which may contact the line from the side or may fall on the line shall be felled, cut, or trimmed so as to remove such hazard. (emphasis added).
Even in situations where PG&E utilizes stronger self-supporting aerial cable, supported by a grounded messenger cable, any vegetation that may fall across the line and break it shall be removed. Specifically, Public Resources Code §4294 states in pertinent part as follows:
- A clearing to obtain line clearance is not required if self-supporting aerial cable is used. Forked trees, leaning trees, and any other growth which may fall across the line and break it shall, however, be removed. (emphasis added).
Further, industry standard definitions regarding what constitutes a hazard or dangerous tree are based on whether a tree could make contact with the power lines. Specifically, ANSI 300 (Part 7) – 2006 Integrated Vegetation Management defines “danger” and “hazard” trees as follows:
- ANSI 300 (Part 7) – 2006 Integrated Vegetation Management – 72 Definitions, 72.5 “Danger Tree”: A tree on or off the right-of-way that could contact electric supply lines; 72.8 “Hazard Tree”: A structurally unsound tree that could strike a target when it fails. As used in this clause the target of concern is electrical supply lines.
PG&E’s Electric Transmission Guideline – G0070 Rev – Vegetation Management Policy, with an effective date of 3-1-1999, states in pertinent part as follows:
- The primary objectives of the vegetation management program are as follows: Maintain maximum clearance between conductors and vegetation; Remove hazard trees that could fall into lines.
MAINTAIN MAXIMUM CLEARANCE
Safety, service reliability, and cost effectiveness are best achieved when trees are removed, rather than pruned. Therefore, the vegetation management policy of Electric Transmission Maintenance is focused on tree removal.
When trees are not removed, the maximum amount of clearance should be obtained by pruning….In addition, no branches overhanging conductors should be left on pruned trees. Under no circumstances will clearance be less than what is safe and keeps PG&E in compliance with regulatory requirements.
REMOVE HAZARD TREES
Hazard trees, whether on or off right-of-way, should promptly be removed. The California Forest Practice Rules define a hazard tree (or danger tree) as “any tree located on or adjacent to a utility right-of-way or facility that could damage utility facilities should it fall where 1)the tree leans toward the right-of way or 2) the tree is defective because of any cause, such as heart rot, shallow roots, excavation, bad crotch, dead or with dead top, deformity, cracks or splits, or any other reason that could result in the tree or a main lateral of the tree falling.” (emphasis added).
In Jacob’s case PG&E’s own Hazard Tree Rating System (HTRS) and Scoring matrix classified the subject eucalyptus as having a high likelihood of failure and high likelihood of striking a target, namely the subject power lines.
PG&E’s “Likelihood of Strike” evaluation sets forth that the tree or the part most likely to fail must be tall enough to strike the facilities and the facilities must be within striking distance. Further, when evaluating a part most likely to fail, evaluate height & distance from the conductors of that part from where it will “hinge.”
PG&E’s “Likelihood of Failure” evaluation takes into consideration overall tree or stand health in the surrounding area and whether or not there are symptomatic problems. In addition, PG&E looks at the species failure potential for the type of tree being evaluated, and specifically whether the species fails often. The analysis also considers whether the species drops limbs, is exposed to winds, or is sheltered by other trees.
PG&E also evaluates whether a tree failure will impact or strike its equipment, including power lines, among other targets.
PG&E’s own internal policies categorize the subject Blue Gum Eucalyptus as having a High (5) species failure potential, a High (5) partial failure likelihood, and an equally Very High (7) likelihood to fail in winter or summer.
On top of the outage history in the subject area, including outages due to vegetation, PG&E also had broad knowledge of failure patterns and propensities for eucalyptus trees and other failure prone species. Specifically, well-known industry publications on hazard tree evaluations and assessments set forth the following:
- Well-tapered stems are better able to withstand lateral stress because they distribute stress through their length; poorly tapered branches are prone to break if there is too much weight at the end of the branch; failures frequently occur one to several feet away from the branch attachment; and branch failure is common in eucalyptus. See Matheny, N.P., and J.R. Clark. 1994. A Photographic Guide to the Evaluation of Hazard Trees in Urban Areas (2nd edition). International Society of Arboriculture, Champaign, IL., pp. 10, 17, 81.
- Trees that look healthy can fail due to decay, weak branch attachments and other structural defects. Hazard evaluation systems rate both the failure and damage potential. Loss of a transmission line which causes a fire is worse than failure of a single-phase line. Hazard evaluation must examine each location on the tree. Tree failures follow repeating themes. Failure history within a circuit, division and territory is a key element in predicting future failures. Individual tree species tend to fail in certain ways, characteristics called failure patterns. A species failure pattern considers the type of failure, environmental conditions, site conditions and the management history associated with the failure. Developing a species profile requires knowledge of growth patterns.
- Trees that have experienced failures in the past are more likely to do so in the future. Long, horizontal, poorly tapered branches with weights concentrated at the ends are prone to failure.” See Matheny, N.P., and J.R. Clark. 1993. Handbook of Hazard Tree Evaluation for Utility Arborists. International Society of Arboriculture, Savoy, IL.
As predicted by well-documented industry literature on species failure rates, propensities, and particular types of failures, the subject thirty-six (36) foot non-tapered full foliage limb broke from the trunk as expected.
Jacob sustained severe electrical burns to his head, upper back, right arm, both hands, right buttock, upper legs and both feet. His head injury required the placement of a composite plate in his skull with grafting. Like all burn survivors Jacob cannot expose any of his graft sites to the sun and will always have to cover his wounds.
Jacob’s right thumb was pinned and fused at the knuckle and forcing him to compensate from the full use of his major hand by use his left. Jacob’s lost 100% of his left latissimus dorsi and 50% of the right. Jacob’s arm strength, flexibility and range of motion are very limited due to this loss, contractures and scarring. He cannot lift his arm past 80 degrees. The wound sites and wound ulcers occasionally bleed and attention. Electrical exit wounds on both heels are painful, impair the ability to walk and require a brace and special boots to transfer weight off the heels.
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