December 2, 1980

Mr. Bob D. Voeltz, Administrator 
South Dakota Electrical Commission 
125 West Capitol Avenue 
Pierre, South Dakota 57501

Official Opinion No. 80-72

Liability of the State Electrical Commission and its Officers and Employees-- Regulation of New Electrical Installations in Structures with Existing Wiring

Dear Mr. Voeltz:

You have requested an official opinion from this office in regard to the  following factual situation:

FACTS: 

I am asking your official opinion on the following situations we run into in wiring in South Dakota with regard to our obligation as inspectors of the same. 

1.  Many older homes are moved and perhaps only a new service is added and the older wiring is not touched. 

2.  Many of the older homes are moved or just plain have newer, larger services put in them and perhaps add a circuit or two for more or larger equipment or demands.

Based on the above facts, you have asked the following questions:

QUESTIONS: 

1.  What is the liability of our agency as far as SDCL 36-16 goes with regard to any of the wiring that has not been replaced and only a new service--for whatever reason--has been put in the house? 

Do we have a legal right to inspect further for possible hazards or do we just inspect that work that has been performed and requires an inspection  under SDCL 36-16 and ARSD 20:44? 

2.  What is our legal responsibility if we observe hazards as we are inspecting the new service or other work that has been done with regard to the older, existing wiring? 

3.  What if we inspect the work as reported and are not aware nor do we observe any hazardous older wiring?  Should we have inspected it or not as we don't believe we have this legal right under the current laws of SDCL 36-16 nor ARSD 20:44? 

4.  If we observe some hazardous wiring while inspecting that which has been reported to us for inspection, would a written notice of this hazard or deficiency to the owner relieve us of any further responsibility and if not, where do we have the authority under existing law (SDCL 36-16) to have it corrected?

IN RE QUESTION NO. 1, PART 1:

SDCL 36-16-36 reads as follows: 

This chapter shall not be construed to relieve from or reduce the responsibility or liability of any party owning, operating, controlling, installing, altering or repairing any electrical system or equipment for damages or injuries to persons or property nor shall the state nor any of its  political subdivisions be held as assuming any liability by reason of any of the provisions of this chapter.  (Emphasis added.)

As is apparent from reading the final portion of this section, it is the intention of the Legislature that neither the state nor any of its political subdivisions assume any liability by reason of any of the provisions contained in SDCL 36-16.  Remain cognizant this does not shield anyone acting without the scope of authority.

IN RE QUESTION NO. 2, PART 2, AND QUESTIONS 2, 3 AND 4:

Your problem and the pertinent statutes indicate to me that your functions are related to the safe and proper installation of electrical systems in accordance with approved standards for such work.

SDCL 36-16-1 reads as follows: 

In order to safeguard life and property from electrical hazards, any person, firm, partnership or corporation engaged or offering to engage in business as an electrical contractor as defined in §  36-16-2, or any person performing the work, as defined in this chapter, shall be issued a permit and register with the state electrical board before he is to undertake and perform such work to the end that any such work will be safely and properly installed in accordance with approved standards for such work; and it is a  Class 2 misdemeanor for any person, firm, partnership or corporation to engage in such business or such work unless the terms of this chapter are complied with.  (Emphasis added.)

The Commission has jurisdiction over the new installation that would be performed.  The Commission does not have jurisdiction over wiring previously installed or over previous installations.  It is my opinion that the installation must be safely and properly installed.  If the installation affects existing wiring in such a way that a completed installation would become unsafe or improper according to the approved standards promulgated by the Commission, it would be subject to disapproval by the Commission.

Restated, you have jurisdiction only over new installations. However, the installation must be made in a manner that is safe and proper and if the new installation could be operated in conjunction with existing situations so as to result in an unsafe or improper result, the new installation could be prohibited from being energized.

Your legal responsibilities and rights of inspection, in view of this opinion, are those that you have always exercised when you observed a hazard or when you received jurisdiction to inspect electrical work.

Respectfully submitted,

Mark V. Meierhenry
Attorney General