Citation. Cooley v. Public Serv. Co., 90 N.H. 460, 10 A.2d 673
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Brief Fact Summary.
In a severe storm, Public Service Co.’s (Defendant’s) electric lines fell, which caused a loud noise in Cooley’s (Plaintiff’s) phone line. In hearing the noise, Plaintiff suffered a very rare neurosis. Plaintiff sued Defendant for negligence.
Synopsis of Rule of Law.
The law could not tolerate the theory of “be liable if you do and be liable if you don’t.” Defendant is not liable to Plaintiff when there is no way to prevent Plaintiff’s rare and remote injury without exposing the public to an obvious and immediate injury.
Defendant maintained un-insulated electric lines above telephone lines. During a severe winter storm, Defendant’s power line broke and hit a telephone line. At that moment, Plaintiff was using the telephone when suddenly a loud noise came through. Plaintiff fainted and fell to the floor. She suffered a very rare neurosis with severe physical consequences. Plaintiff sued the telephone company and Defendant for negligence. The jury found for the telephone company but against the Defendant. The Defendant appealed.
Is Defendant liable to Plaintiff for negligence when Plaintiff is not capable of suggesting a safer possible precaution Defendant could have undertaken without entailing a greater risk to the lives of others?
No. Judgment for Defendant affirmed.
* There is no claim that the negligence of Defendant caused the electric wires to fall. Rather, Plaintiff asserts that the electric lines should have had one of two devices. After a detailed examination of these proposals, the court concluded that each of Plaintiff’s devices would have entailed a greater risk of electrocution to people passing on the street.
* As long as Defendant’s lines are properly installed, there is no danger of electrocution in the house. The only possible danger to telephone users in the house is that of fright and neuroses. In balancing the two, the danger to Plaintiff is remote and the danger to those on the ground is obvious and immediate. The Defendant’s duty of care towards Plaintiff is weaker than that towards the man in the street. Defendant’s duty could not be both. The law could not tolerate the theory of “be liable if you do and be liable if you don’t.”
* There is no doubt that Defendant may owe a duty to Plaintiff. However, it is Plaintiff’s duty to bring forth evidence that affords protection against emotional disturbances without subjecting the public to live wires immediately dangerous to life.
As a practical matter, the court was unwilling to impose liability on Defendant, when to do so would be to punish Defendant for preventing live wires from coming into contact with the public. Defendant’s duty to Plaintiff is outweighed by the duty Defendant owes to the public at large. If Plaintiff can present evidence of means where Defendant could have reasonably and concurrently protected the public from live wires and Plaintiff from emotional distress, then Defendant would be liable for the breach of duty to Plaintiff.