Is Electricity a “Product”?
September 3, 2008
Whether electricity supplied to a homeowner by the local electric utility is viewed as a “product” or a “service” may have significant ramifications in litigation. If providing electricity constitutes a “product”, injured plaintiffs can seek recovery under a theory of strict liability. If it is not a product, the plaintiff would have to demonstrate the electric utility failed to use reasonable care. In a recent Connecticut case, Travelers Indemnity Company of America v. Connecticut Light & Power Co, Hartford J.D. at Harford (Docket No. CV-07-5012441-S ) 2008 WL 2447351 (Conn. Super.), the trial court held that once electricity entered the homeowner’s residence, it constituted a “product” rather than a “service” and that plaintiff could proceed under the Connecticut Product Liability Act (“CPLA”). In the case, a fire allegedly caused by voltage fluctuations broke out in the home of Travelers’ insureds, Linda and Michael Murphy, resulting in property damage. Apparently, the Murphy’s had complained to CL&P earlier about the voltage fluctuations and had been assured that the problem had been addressed. After paying the claim,
Connecticut courts are split concerning whether electricity can be classified as a product such that a claim could be brought under the CPLA.. However, the court in Travelers relied upon what appears to be an emerging majority view nationally. In a 1985 California appellate decision, Pierce v. PG&E, the court opined that policy justifications warranted the imposition of strict liability: (1) difficulty of proving negligence involving a vast and complex electrical power system; (2) economic incentive for improved product safety; (3) to encourage reallocation of resources toward safer products; and (4) to spread the risk of loss among all who use the product. What judicial limitations may be reasonable to prevent increased access to strict liability in tort for toxic tort plaintiffs injured by electricity? One bright line test might be permit electricity to be viewed as a product only when the electricity has been transferred to the consumer in a usable voltage. Only then could a court reasonably view electricity as a consumer product. Under this test, exposure to high voltage transmission lines would not result in a strict liability lawsuit.