Case of the Day – Tuesday, November 6, 2018


I read recently that the British Army derisively referred to the SA80, its 1980s-era issue battle rifle, as “Civil Servant.” The joke (and how we love dry British humor) was that like Her Majesty’s government’s functionaries, the rifle didn’t work and could not be fired.

Not that such deprecation of government employees is peculiar to the UK. American Division of Motor Vehicles employees are legendary for their rudeness and sloth. And, as hard as it may be to believe, some people think that utility company work crews don’t have much more get-up-and-go than your average license plate pusher.

We refer to people like homeowner Greg Fenlon. When he noticed a hazard tree threatening his local power grid, he called the electric company. It’s crews, unfortunately, were uninterested in taking direction from Greg and, to make matters worse, did not perform their duties much to Greg’s liking. He wanted the hazard tree removed. They demurred.

After the crew headed off for coffee and doughnuts, Greg hired a crew that would take direction from him (because he was paying them). Greg’s crew removed the tree, and Greg sent the bill to Union Electric. Union sent it back.

Greg was as serious about litigation as he was tree removal. He sued Union Electric for the cost of his tree-cutting crew. And he got further than you might think.

Fenlon v. Union Electric Co., 266 S.W.3d 852 (Court of Appeals of Missouri, Eastern District, 2008). Greg Fenlon was not a guy to let a job go undone. When he noticed a dangerous tree interfering with Union Electric wires, he contacted the utility to report it. Union Electric sent a couple of men in a truck, who trimmed back a few branches but refused Greg’s demand that they cut down the hazardous tree (despite the fact it was inside the utility’s easement). So Greg did the job himself, hiring a contractor to cut down the tree. He then sued the utility for the cost of the removal.

The trial court dismissed Greg’s claim, and he appealed.

Held: Greg’s suit was reinstated.

The Court observed that suppliers of electricity must exercise the highest degree of care to maintain their wires in such condition as to prevent injury, citing the Missouri Supreme Court’s Gladden case. However, the Court said, “nothing in Gladden limits the exercise of the highest degree of care solely to the trimming of branches that are either touching or close to wires. Rather, the focus in Gladden is on the likelihood of injury and prevention thereof.”

The key issue here, the Court said, was whether the hazard tree created an unreasonable risk of injury, and that was a question of fact. If it did, then Greg’s self-help in the Union Electric easement should be paid by the utility.

The trial court was in error when it effectively determined a question of fact question on a motion to dismiss. Greg’s pleadings were adequate to state a cause of action, so the matter had to go back for trial.

– Tom Root


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