Hogue v. A. B. Chance Co., 50251

• Citation: 592 P.2d 973
• Decision Date: 28 November 1978
• Docket Number: No. 50251,50251
• Parties: George W. HOGUE, Appellant, v. A. B. CHANCE COMPANY, a Foreign Corporation, d/b/a Pitman Manufacturing Company, and Utility Equipment Company International, Inc., an Oklahoma Corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 973

592 P.2d 973

George W. HOGUE, Appellant, v. A. B. CHANCE COMPANY, a Foreign Corporation, d/b/a Pitman Manufacturing Company, and Utility Equipment Company International, Inc., an Oklahoma Corporation, Appellees.

No. 50251.

Supreme Court of Oklahoma.

Nov. 28, 1978.

Rehearing Denied April 16, 1979.

Appeal from District Court, Oklahoma County; William S. Myers, Jr., Trial Judge.

An appeal from an order of the trial court granting summary judgment in favor of both defendants and dismissing plaintiff's action against manufacturer-distributor and seller of elevating device used to raise workmen and tools to work on electrical transmission lines.

REVERSED AND REMANDED.

Jack B. Sellers Law Associates, Inc., Sapulpa, for appellant; Joe A. Moore, Memphis, Tenn., of counsel.

Wm. G. Smith and Edward L. Ray, of Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, for appellees.

DOOLIN, Justice:

Plaintiff filed this action for damages for personal injuries against A. B. Chance Company and Utility Equipment Company International, Inc., the manufacturer-distributor and seller of the Pitman Hotstik. The Pitman Hotstik is an aerial basket and boom used in lifting workmen, tools and materials into the air for work on high voltage electrical lines. Plaintiff alleged the hotstik was defective in that it was not properly insulated and thus unsafe for use near high voltage electrical lines.

Plaintiff was installing new electrical transmission lines atop utility poles. Although the lines he was installing were not energized, one line on outside portion of the cross-arm away from his work, remained "hot" so that electrical service would not be interrupted. Plaintiff was alone in the basket and had raised it into working position. While lifting the new line, plaintiff found it necessary to adjust the basket in order to reach the insulator. With the new line in his left hand he reached with his right and grasped the basket control handle. He had raised the basket about six inches when the handle became energized and he received a substantial electrical charge. Apparently an uninsulated portion of the boom had come in contact with the single energized line and the charge was grounded through the unenergized wire he was holding. Plaintiff suffered severe injury.

In his petition, plaintiff alleged negligence, strict liability and breach of warranty. Defendants answered and filed motions for summary judgment under Rule 13, 12 O.S.1978 Supp. Ch. 2, App. based on depositions and answers to interrogatories. The trial court sustained defendants' motions finding:

"The uncontroverted facts show that the proximate cause of the accident was the acts of the plaintiff voluntarily and knowingly failing to use the protective equipment and safeguards which were furnished and required by his employer with plaintiff's knowledge that the subject aerial platform unit could not insulate him from outside grounding sources, which action by the plaintiff was voluntary assumption of a known risk and an abnormal unintended use of the subject product."

This finding of the trial court was based on deposition testimony of plaintiff that had he been wearing protective equipment he would not have been injured. On appeal plaintiff submits trial court erred in considering only that portion of his deposition and ignoring his other testimony that protective equipment was not required if he was not working with energized lines and if no part of his body would be in contact with energized lines.

Plaintiff further denies he assumed any risk of a known defect. To the contrary he stated several times he assumed the boom and basket were insulated against such an occurrence. He submits he had a right to assume the hotstik was designed and manufactured so as to preclude the possibility an electrical charge could be transmitted through the boom into the control handle. With this testimony presented to the trial court, plaintiff submits it made its decision by improperly deciding issues of material fact on summary judgment, thus invading the province of the jury.

Rule 13, 12 O.S.1978 Supp. Ch. 2, App. provides a court may consider depositions, admissions, answers to interrogatories and affidavits and then render judgment, "if it appears that there is no substantial controversy as to any material fact and that any party is entitled to judgment as a matter of law." ¹ The trial court found as a matter of law the accident was not caused by any defect in the hotstik and defendants had a complete defense in that plaintiff had voluntarily assumed a known risk when he did not wear protective gloves.

We do not agree with the trial court and accordingly reverse. The motions for summary judgment should have been denied. Depositions reveal controverted issues of fact that must be submitted to the jury. Reasonable men in the exercise of fair and impartial judgment could certainly reach different conclusions upon consideration of the material filed by defendants in support of their motion for summary judgment. ² Before a court may properly grant such a motion it must clearly appear movant is entitled to judgment as a matter of law viewing supporting material in the light most favorable to his opponent. ³

In Kirkland v. General Motors Corporation, 521 P.2d 1353 (Okl.1974) we held in an action based on manufacturers' products liability, common law defenses such as contributory negligence and assumption of the risk are not applicable. The equivalent defense must be narrowly defined as Voluntary assumption of the risk of a known defect. ⁴ Under this decision there must be a showing the plaintiff Knew of a defect unreasonably dangerous in nature, yet voluntarily used the...