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Court Voids Damages for Schools Near Power Line

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The Texas Court of Appeals has overturned a lower court's decision awarding $25 million in punitive damages to a school district that argued that a power company increased students' risk of cancer by placing a 345,000-volt electrical line near three school buildings.

The jury that heard the case properly concluded that the Houston Lighting & Power Company recklessly disregarded the safety of some 3,000 students when it placed the power line in close proximity to their schools in the Klein Independent School District, the appeals court ruled Nov. 5.

But, the court noted, Texas law does not provide for the awarding of punitive damages because the com4pany was not guilty of "trespass."

The suburban Houston district plans to appeal the ruling to the Texas Supreme Court, according to its lawyer, H. Dickson Montague.

Scientific studies cited in the case suggest possible links between higher incidences of cancer and prolonged exposure to electromagnetic fields generated by high-power lines.

The district offered evidence from three expert witnesses that children who lived near such lines were two to three times more apt to develop cancer than children who did not. The company disputed the validity of that testimony.

The case began in 1981, when the power company initiated condemnation proceedings to gain access to a 100-foot-wide strip of the district's land on which to construct the line. The property is approximately 200 feet from a high school and an intermediate school and 300 feet from an elementary school.

A special commissioner awarded the land to the company, and the line was constructed in 1984. The district filed suit in 1985 to force the company to remove the line.

At the conclusion of the trial, the jury awarded the district $150,000 in compensatory damages and $25 million in punitive damages. The judge hearing the case sustained the verdict and ordered the company to remove the line, which it did in August.

In its ruling, the state appeals court found that although the power company had "abused its discretion in condemning the land, that act does not make [its] entry a trespass."

"As [the company] is not a trespasser that can be held liable for tort damages, punitive damages cannot be assessed," the court held.

Mr. Montague said the issue of adverse health effects of high-power electrical lines had been raised in other state courts.

"But it usually is raised in cases in which a property owner is trying to get more compensation for his loss due to the devaluation of his remaining property," he said. "To the best of my knowledge, the issue has never before been raised in a case in which a property owner is trying to get the line removed."--tm

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