Richardson v. U.S.

• Decision Date: 18 May 1981
• Docket Number: No. 79-4516,79-4516
• Parties: Kenneth RICHARDSON, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 731

645 F.2d 731

Kenneth RICHARDSON, Plaintiff-Appellant, v. The UNITED STATES of America, Defendant-Appellee.

No. 79-4516.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted March 5, 1981.

Decided May 18, 1981.

David E. Williams, Critchlow, Williams, Ryals & Schuster, Richland, Wash., for plaintiff-appellant.

Robert M. Sweeney, Asst. U. S. Atty., Spokane, Wash., for defendant-appellee.

Appeal from the United States District Court for the Eastern District of Washington, No. C-76-260.

Before KENNEDY and BOOCHEVER, Circuit Judges, and REED, ^* District Judge.

REED, District Judge:

Kenneth Richardson appeals the judgment entered against him by the District Court on July 17, 1979, following a non jury trial, on his claim under the Federal Tort Claims Act, 28 U.S.C. § 2671 et seq.

The original claim for relief was submitted to the Bonneville Power Administration (hereinafter BPA) on June 25, 1975, pursuant to 28 U.S.C. § 2675. A complaint against the BPA was subsequently filed in the trial court on September 30, 1975. Later, by agreement, the United States was substituted as the party defendant in place of the BPA.

The appellant's original claim, and now this appeal, derive from a most unfortunate occurrence on May 10, 1975, in Benton County, Washington. The appellant, an eighteen year old high school student, had gone to visit his sister and brother-in-law, Mr. and Mrs. Norman Trapp, at a farm they leased in Benton County. While there, he assisted his brother-in-law in moving irrigation pipes across a pasture. The irrigation pipes were of varying lengths and made of aluminum.

High-voltage power lines cross over the Trapp farm. The lines are known as the "Franklin-Hedges 115KV line" constructed and maintained by the BPA, an agency of the defendant. While no supporting structures are located on the farm, the line crosses that property between poles 4/6 or 5/6 and 4/7, a span of some 776 feet. The line, composed of uninsulated aluminum and steel, sags to a low point of about 30 feet above the ground. The normal amount of energy transmitted through the line is approximately 35 MW. Direct contact with this high voltage line would be fatal.

At the time of the occurrence which is the subject of these proceedings, appellant and Trapp were carrying a forty-foot length of the irrigation pipe, horizontally, at hip level, with appellant at one end and Trapp at the other. In addition, Trapp carried a shorter piece of pipe, dragging one end on the ground and crossing over the longer piece of pipe.

As the two walked beneath the power line, lightning struck the line causing a short circuit from the line to the pipe being carried by appellant and Trapp. This phenomenon of electricity traveling through midair from the high voltage line to the ground by way of the pipe is termed "midpoint flashover."

As a result of this "midpoint flashover" the appellant and his brother-in-law were severely shocked and burned on their hands and lower portions of their bodies. Both were knocked unconscious and appellant's injuries later necessitated the amputation of his left leg.

Appellant presents one question on appeal:

Did the trial judge apply the proper legal standard in determining whether defendant was liable for the consequences of the electrical shock received by the appellant due to "midpoint flashover" from the high voltage transmission line?

Under the Federal Tort Claims Act, tort liability is determined by the law of the state where the act or omission complained of occurred. 28 U.S.C. §§ 1346(b), 2674. See generally Southern Pacific Transportation Co. v. United States, 462 F.Supp. 1193 (E.D.Cal.1978). The United States "shall be liable, ... in the same manner ... as a private individual under like circumstances..." 28 U.S.C. § 2674. The basic problem now presented to this Court is what was the proper standard of care, which should have been applied by the court below, according to the law in the State of Washington.

The trial court stated, in its conclusions of law, that the standard of care imposed upon a private power transmission line owner or operator is the "highest degree of care compatible with practical operation." Appellee supports this as the proper standard to apply, citing, Hever v. Puget Sound Power and Light Co., 34 Wash.2d 231, 208 P.2d 886 (1949); Scott v. Pacific Power and Light Co., 178 Wash. 647, 35 P.2d 749 (1934); Hass v. Washington Water Power Co., 93 Wash. 291, 160 P. 954 (1916); White v. Reservation Electric Co., 75 Wash. 139, 134 P. 807 (1913); Mayhew v. Yakima Power Co., 72 Wash. 431, 130 P. 485 (1913).

It is appellant's position that the proper standard of care imposed upon the BPA was "the highest degree of care that human prudence is equal to." Appellant argues that the qualification in the standard of care applied by the judge, "compatible with practical operation of the utility," has not been used since 1949, the date of the Heber decision, supra. See Vannoy v. Pacific Power and Light Co., 59 Wash.2d 623, 369 P.2d 848 (1962), Frisch v. Public Utility District, 8 Wash.App. 555, 507 P.2d 1201 (1973) and Wray v. Benton County P.U.D., 9 Wash.App. 456, 513 P.2d 99 (1973); See also Amant v. Pacific Power and Light, 10 Wash.App. 785, 520 P.2d 181 (1974).

At first glance it appears that to distinguish the two standards would be but a mere exercise in semantics. A closer look at the application of each to the facts originally at issue in this case creates a meaningful difference that may have substantially affected the trial court's judgment.

At trial appellant argued that certain precautions, such as the installation of ground or "shield" wires, might have prevented the accident. On the other hand, appellee contended and the trial court found that though these ground wires dissipate the effect of lightning on the lines, their use was to prevent power outages and to insure system reliability. The court also found that such ground wires may or may not have prevented a "midpoint flashover."

The BPA did not use ground wires in the area of the accident. The BPA did use the ground wires on other portions of the Franklin-Hedges line and over other lines which transmit extra high voltage in the 345-500 KV range. The court found that the installation of ground wires over all power lines would be impractical because of the high cost in comparison to possible benefits, and thus would burden the practical operation of the utility. This was especially true in light of the trial court's determination that the probability of "midpoint flashover" is extremely remote.

The evidence as to whether or not this occurrence was foreseeable, and whether or not it could have been prevented, was through the testimony of Dr. William Lewis, an electrical engineer and expert for the plaintiff, and Mr. Yasuda, the head of the High Voltage Unit and System Reliability for the BPA. It appears the trial court, having heard the testimony and judged its credibility, chose to adopt the testimony presented by appellee's expert, Mr. Yasuda. He presented credible evidence to support the trial court's findings of fact and this Court is bound by those findings unless clearly erroneous. See Fed.R.Civ.P. 52(a); Roemer v. Maryland Public Works Board, 426 U.S. 736, 758, 96 S.Ct. 2337, 2350, 49 L.Ed.2d 179 (1976).

Without concerning itself with the findings of fact, or whether the trial court's judgment would be the same under either of the standards of care contended for, this Court must determine first if the two standards do in fact differ.

The existence of a distinction is relevant to determine the possibility that the trial court may have considered the various factors of foreseeability, practicality, expense, benefit, and prudence in a different light.

Appellant relies on three of the most recent Washington decisions relevant to this case. Wray, supra; Frisch, supra; and Vannoy, supra. Those cases involve personal injury actions against electrical utilities in regard to their liability arising from the maintenance and control of outside, high-voltage lines. All three rely on the standard set forth in Vannoy, supra, 369 P.2d at 852-53, i.e., "the highest care that human prudence is equal to."

Appellee asserts that its cases, the latest of which was decided in 1949, state the relevant standard applicable, i.e., "the utmost care and prudence consistent with practical operation of...