Federal rules granting the American Transmission Company broad immunity from lawsuits protect it even when company negligence results in death, the state Court of Appeals said Wednesday.
ATC owns and operates electrical transmission lines.
The opinion did not determine whether or not ATC was negligent in the 2018 death of pilot Jonathan Bahr, 27, because the judges found that the federal regulation, called a "tariff," protects the firm. They affirmed a lower court decision dismissing a lawsuit brought by Jonathan's parents.
"The limitation of liability was a public policy decision made by Congress that is binding on this court," the three-judge District II Court of Appeals panel said in an unsigned opinion. The panel included Appellate Judges Mark Gundrum, Shelley Grogan, and Maria Lazar.
The tariff reads, in part, “The Transmission Owner shall not be liable, whether based on … tort … or otherwise, to any … third party or other person for any damages whatsoever … arising or resulting from any act or omission in any way associated with service provided under this Tariff.”
"The tragic facts underlying the Bahrs’ case are not in dispute," the court said. Jonathan Bahr was hired to fly a photographer to a boating event and nearby lakes around Oshkosh. After flying with the photographer for about 90 minutes, Jonathan dropped the pilot off at a restaurant and left to refuel the chopper.
Shortly after taking off, "as the helicopter was crossing the Fox River, it struck and severed two wires — a shielding wire owned by ATC and a fiber-optic ground wire owned by a third party but attached to ATC’s poles," the panel said. "The helicopter plunged into the river, and Jonathan drowned."
Jonathan's parents, Glen Bahr and Lori Erschen-Bahr, sued ATC for wrongful death and negligence, alleging that the company did not properly mark the wires and that led to Jonathan's death. (The tariff does not rule out suits for gross negligence or intentional misconduct, but the Bahrs did not allege those things.)
ATC moved for summary judgment, saying in part that the tariff exempted it from liability. Winnebago County Circuit Judge Bryan D. Keberlein agreed and dismissed the action.
The Bahrs appealed, arguing that ATC's failure to mark the lines had nothing to do with its provision of electrical services, but the appeals court disagreed.
"This argument misses the point that ATC only maintains the wires at issue (negligently unmarked or not) for the purpose of providing the service of transmitting electricity to its customers," the panel said.
The wires were designed to shield the current-carrying wires below them from lightning strikes, to transmit communication between electrical substations, and to provide grounding to dissipate current," they said.
In a footnote, they noted that "an electrical outage occurred after the accident, which is further evidence that the wires struck by the helicopter were not superfluous to ATC’s service of transmitting electricity."
The full decision in the case is here.
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