You asked, in connection with the construction of an electric transmission line between Norwalk and Middletown, who is liable if:

1. someone is injured while working on the project within the transmission line right of way;

2. a person is injured in accident involving open excavations, cut poles, or other hazards in the right of way; or

3. a vandal damages property.

The Office of Legislative Research is not authorized to provide legal opinions and this report should be considered as one.

SUMMARY

The determination of liability depends on the specific facts in the case, including the relationships among the affected parties. As a rule in Connecticut, electric companies do not own the right of way for transmission lines. Instead, they obtain easements from property owners which allow them to erect and maintain the lines. As a result, the property owners continue to own the land where the lines are located and either the electric company or the property owner may be liable for accidents that occur in the right of way, depending on the circumstances. If an injury is caused by both the owner and the electric company, both may be held liable for concurrent negligence.

As there is little Connecticut case law on these specific issues, much of this report is based on secondary sources, notably 62 Am. Jur. 2d Premises Liability.

LIABILITY AND TRANSMISSION LINE PROJECTS

Provisions Specifically Affecting Transmission Lines and Other Utility Projects

The Norwalk-Middletown line is, for the most part, being built in a right of way where the utilities obtained easements in the early 20^th century. To the extent that the company's easement addresses liability issues, it would govern. In addition, the easement might establish specific responsibilities for the company or the abutter. For example, the easement might require the company to take specific steps in building or maintaining the transmission line. The performance or non-performance of these measures could affect liability.

In the case of the Norwalk-Middletown project and other recent transmission line projects, liability might also be affected by the compliance of the electric company and its contractors with conditions imposed by the Connecticut Siting Council in granting a certificate for the project. Under Conn. Regs. § 16-50j-60, the council can require the preparation of a design and management (D&M) plan for electric and gas transmission lines. The council has required the preparation of a detailed D&M plan for the Norwalk-Middletown line, which is available at http: //www. ct. gov/csc/cwp/view. asp?a=3&q=293116. The plan outlines specific construction methods for the line and has guidelines for clearing property, building access roads, foundation excavation, soil erosion and sedimentation control, and restoration of disturbed areas to their pre-construction conditions. In areas where blasting is required, the companies must submit plans for the council's approval.

The plan has 12 components, four for overhead segments of the line, four for underground segments, and four for electric substations and switching stations. The plans require the companies to notify abutting property owners at least two weeks before starting construction. The plans for the underground segments have specific requirements for digging and restoring trenches.

Generally Applicable Liability Provisions

In addition to these provisions that apply specifically to facilities regulated by the Siting Council, the liability of the property owner, electric company, or its contractors could be affected by their acts and omissions in light of their responsibilities under federal and state statute and the common (judge made) law. For example, the liability for damages arising from a workplace accident might be affected by worker's compensation law and the employer's compliance with the federal Occupational Safety and Health Act. Generally, a worker injured on a construction site would recover his damages under the workers' compensation system rather than by suing his employer or the property owner. Another factor affecting liability is the state law (CGS § 16-19e) that requires electric companies and other utilities to act with care for the public safety.

Liability might also arise under common law theories of negligence and nuisance, among other things. Under negligence, both the property owner and the electric company, as holder of the easement, may be liable for dangerous conditions on the land. Both parties may have mutual rights and duties. For example, the holder of an easement is generally liable for damages caused by failure to keep the easement in repair.

An electric company might be liable if it cut a trench but failed to fence or cover it, and a person subsequently fell into the trench. Under certain circumstances, a property owner might be liable for damages arising from an accident. For example, if a contractor fenced a construction site, but the property owner leaned a ladder against the fence and child climbed into the site and was injured, the property owner might face liability under theories of negligence or creating an attractive nuisance. If an accident is caused by the combined negligence of the property owner and the easement holder, both may be concurrently liable.

Liability can also be affected by the relationship between the parties. For example, a property owner has a greater duty to care for someone he has invited onto his property than he has for someone who has entered his property without his permission, e. g. , a vandal.

OLR Report 2002-R-0365 describes the responsibility of those who own or control land to licensees, invitees, and trespassers. A licensee is someone privileged to enter or remain on land because the owner or person who controls it consents to it, either by invitation or permission (Salaman v. Waterbury, 246 Conn. 298 (1998)). In Connecticut, a property owner is subject to liability to a licensee for injuries sustained from a natural or artificial condition if he (1) knows of the condition, (2) realizes it involves an unreasonable risk, (3) has reason to believe the licensee will not discover the condition or risk, and (4) permits the licensee to enter or remain on the premises without exercising reasonable care to make the condition reasonably safe or warn the licensee of the condition and the risk (Laube v. Stevenson, 137 Conn. 469 (1951)).

In contrast, an owner owes an invitee a greater degree of care than he owes a licensee. The Connecticut Supreme Court described three types of invitees: (1) a public invitee is someone invited to enter or remain on land as a member of the public for a purpose for which the land is held open to the public; (2) a business invitee is someone invited to enter or remain on land for a purpose directly or indirectly connected with business dealing with the possessor of land; and (3) a social invitee is a visitor who has received an invitation, as opposed to permission, to enter or remain on the land (Corcoran v. Jacovino, 161 Conn. 462, (1971)).

The property owner owes an invitee all the duties that he owes to a licensee and also: (1) the duty to inspect the premises and erect safeguards, if necessary, to render the premises reasonably safe and (2) he has liability for defects that would ordinarily be discoverable by a reasonable inspection and he has the duty to give a proper warning. But he is not liable to anyone for unknown latent defects, that could not be discovered by the exercise of reasonable care (Conn. Law of Torts, § 49).

Even if he is an invitee, the plaintiff must prove that the defendant had notice, actual or constructive, of the specific defective condition that caused the injury, and that the condition existed for a sufficient length of time to allow the possessor, in the exercise of reasonable care, an opportunity to discover it and fix it or warn of its presence (Monahan v. Montgomery, 153 Conn. 386). The possessor of land is not liable for hazards that could not have been discovered or anticipated (Conn. Law of Torts, § 49). In some cases state law limits common law liability, for example when an owner makes his land available for recreational use without charging for it (see CGS § 52-557f et seq. ).

As described in OLR Report 2002-0365, the law imposes limited duties on property owners with regard to vandals or other trespassers. However, there are more extensive duties with regard to trespassing children. If an owner knows or has reason to know that children will be on his property, he has the duty to protect them from injury by either fixing the harmful condition or ensuring that the children will not have access to that part of the property.

The owner is liable for harm to trespassing children caused by an artificial condition on the land if (1) he knows or has reason to know that children are likely to trespass in that place, (2) the condition is one the owner knows or has reason to know and should realize will involve an unreasonable risk of death or serious bodily harm to children, (3) the children because of their youth do not discover the condition or realize the risk, (4) the utility of maintaining the condition and the burden of eliminating the danger are slight compared with the risk to children

involved, and (5) the owner fails to exercise reasonable care to eliminate the danger or otherwise protect children (Restatement (Second), 2 Torts 339).

We have found two cases in other states that may be relevant to your questions. In Streuber v. E. E. Meachum & Son, 163 A. D. 574, 148 N. Y. S. 983 (2d Dep't 1914), the court held that a property owner may be relieved of responsibility if he was under no duty to correct or eliminate the defect causing an injury, because of the nature of the easement he had granted or the character or location of the property. In Kibbons v. Union Electric Co. , 823 S. W. 2d 485 (Mo. 1992), the court held that property owner is liable for those injuries caused by devices placed on his premises by an electric company holding an easement only if the landowner has possession and control of these devices. Thus, the owner of a property that was subject to an electric company easement did not have a duty to remedy a dangerous condition caused by uninsulated overhead electric wires that ran across his property and through a tree on his property. The owner had a duty to refrain from interfering with the electric company's rights, but was not equipped or authorized to maintain and repair the easement.

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