Cerretti v. Flint Hills Rural Elec. Co-op. Ass'n

• Decision Date: 10 July 1992
• Docket Number: No. 66287,66287
• Citation: 837 P.2d 330,251 Kan. 347
• Parties: Randall T. CERRETTI, et al., Appellees/Cross-Appellants, v. FLINT HILLS RURAL ELECTRIC COOPERATIVE ASSOCIATION, Appellant/Cross-Appellee.
• Court: Kansas Supreme Court

Page 330

837 P.2d 330

251 Kan. 347

Randall T. CERRETTI, et al., Appellees/Cross-Appellants, v. FLINT HILLS RURAL ELECTRIC COOPERATIVE ASSOCIATION Appellant/Cross-Appellee.

No. 66287.

Supreme Court of Kansas.

July 10, 1992.

Syllabus by the Court

1. The degree of care required of distributors of electricity is the degree which would be used by prudent persons engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the system, to guard against contingencies which can be reasonably foreseen and anticipated, but such distributors are not liable for occurrences which cannot be reasonably anticipated and are not insurers against accidents and injuries.

2. The test of negligence or absence of negligence is not whether a power company should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable thing that might be done upon the property by persons who had a right to go there, for either work, pleasure, or business.

3. Conformity with an industry-wide standard is not an absolute defense to negligence. While it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances.

4. No party may assign as error the giving or failure to give an instruction unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of the objection, unless the instruction is clearly erroneous.

5. Jury instructions are to be considered together and read as a whole, without isolating any one instruction. If the instructions properly and fairly state the law as applied to the facts in the case, and if the jury could not reasonably have been misled by them, then the instructions do not constitute reversible error although they may be in some small way erroneous.

6. The purpose of awarding damages is to make a party whole by restoring that party to the position he or she was in prior to the injury. To warrant recovery of damages therefore, there must be some reasonable basis for computation which will enable the trier of fact to arrive at an estimate of the amount of loss.

7. When a verdict is challenged for insufficiency of evidence or as being contrary to the evidence, it is not the function of this court to weigh the evidence or pass on the credibility of the witnesses. If the evidence, with all reasonable inferences to be drawn therefrom, when considered in the light most favorable to the prevailing party, supports the verdict, it will not be disturbed on appeal.

8. A "wanton act" is defined as something more than ordinary negligence but less than a willful act. It must indicate a realization of the imminence of danger and a reckless disregard and indifference to the consequences. Wantonness is said to be the mental attitude of the wrongdoer rather than a particular act of negligence. Acts of omission as well as acts of commission can be wanton since reckless disregard and indifference are characterized by failure to act when action is called for to prevent injury.

9. In Kansas, punitive damages are awarded to punish the wrongdoer for malicious, vindictive, or willful and wanton invasion of another's rights, with the ultimate purpose being to restrain and deter others from the commission of similar wrongs.

Steve R. Fabert, of Fisher, Patterson, Sayler & Smith, Topeka, argued the cause, and David P. Madden, of the same firm, was with him on the briefs, for appellant/cross-appellee.

Jerry R. Palmer, of Palmer & Lowry, Topeka, argued the cause, and Jay W. Vander Velde, of Atherton & Vander Velde, Emporia, was with him on the brief, for appellees/cross-appellants.

LOCKETT, Justice:

This is a personal injury and wrongful death action brought by Randall Cerretti individually, and as administrator of the Estate of Lynean Ann Cerretti, deceased, and by Matthew Cerretti, Josh Cerretti, and Cassie Cerretti, minors, by and through Randall Cerretti as their natural father and next friend.

Plaintiffs' sailboat's 28-foot aluminum mast contacted Flint Hills Rural Electric Cooperative Association's (Flint Hills) 7200-volt power line strung over Council Grove City Lake. Lynean Ann Cerretti was electrocuted and Randall Cerretti injured. Plaintiffs sued Flint Hills for negligently maintaining its lines and also sued the manufacturer of the sailboat. Plaintiffs settled with the manufacturer prior to trial. The jury found Flint Hills 94% at fault, plaintiff husband and the deceased wife each 3% at fault, and the boat manufacturer 0% at fault. The judgment exceeded $1,086,000 actual damages and $75,000 punitive damages. Flint Hills appeals. Plaintiffs cross-appeal.

Flint Hills claims:

(1) The trial court imposed absolute liability;

(2) the court erred in denying Flint Hills' motion for directed verdict;

(3) the evidence was insufficient as a matter of law to support the findings of pecuniary loss;

(4) punitive damages were improperly allowed; and

(5) the trial court erred in refusing to compare plaintiff's fault for failing to comply with recall notices.

Other issues were raised but were either restatements of issues already determined, they were not separately briefed, or they contained no reference to the record. Under such circumstances, the court will not consider those issues.

Plaintiffs cross-appeal, claiming the trial court erred by:

(1) overruling plaintiffs' motion to alter or amend the judgment; and

(2) excluding plaintiffs' exhibits 4, 141, 151, and 152.

On August 22, 1987, Randall Cerretti and his family were sailing their 1979 Hobie Cat catamaran sailboat on Council Grove City Lake. The boat, which was purchased in the spring of 1979, had a 28-foot aluminum mast. Randall Cerretti sailed the boat into the Canning Creek arm of the lake where the sailboat's aluminum mast contacted Flint Hills' 7200-volt overhead power line which had been strung at a height of 26 feet and five inches over the water in 1946. Mrs. Cerretti was killed and Mr. Cerretti was injured by the electric shock transmitted through the rigging of the boat and its fittings. The three Cerretti children were not harmed. The Cerrettis were members of the defendant co-op when Mrs. Cerretti was killed.

I. Did the trial court impose absolute liability?

Flint Hills first contends the trial judge erroneously imposed (1) absolute liability on it rather than liability based on fault and (2) negligence per se for an alleged violation of the National Electrical Safety Code (NESC). To determine the issues, we will first review three relevant cases.

As a general rule, electric companies which erect and maintain lines are under a duty to exercise the highest degree of care to protect the public from danger. The degree of care required of distributors of electricity is the degree which would be used by prudent persons engaged in the industry, under like conditions and commensurate with the dangers involved and the practical operation of the plant, to guard against contingencies which can be reasonably foreseen and anticipated, but such distributors are not liable for occurrences which cannot be reasonably anticipated and are not insurers against accidents and injuries. Henderson v. Kansas Power & Light Co., 184 Kan. 691, 695-96, 339 P.2d 702 (1959).

Henderson brought an action to recover damages for personal injuries sustained when electricity from defendant's high-voltage power line jumped or arced into the mast portion of a television antenna when plaintiff was assisting in turning it to obtain better reception. Plaintiff alleged the power company (1) maintained a high-tension electric wire over private property knowing or having reason to know in the exercise of due care that the electric line created a highly dangerous hazard, (2) erected and maintained the power line in a residential area without insulating the electric wire, (3) failed to post warning signs as to its extreme danger, and (4) erected and maintained the power line at a height insufficient to avoid contact with a radio or television antenna. At the close of the plaintiff's evidence the trial court granted the defendant's demurrer to the evidence, stating there was not sufficient evidence that the defendant's alleged acts were negligent and the plaintiff had failed to prove that the defendant had caused his injuries. Plaintiff appealed.

On review the Henderson court noted that a high-voltage power line is one of the most dangerous things known to mankind. Not only is the current deadly, but the ordinary person has no means of knowing whether any particular wire is carrying a deadly current or is harmless. Therefore, as a general rule electric companies which erect and maintain such lines are under a duty to exercise the highest degree of care to protect the public from danger. The court stated that the test of negligence or absence of negligence is not whether the power company should have anticipated the particular act from which the injury resulted, but whether it should have foreseen the probability that injury might result from any reasonable thing that might be done upon the property by persons who had a right to go there, for either work, pleasure, or business. The Henderson court concluded the questions of the defendant's negligence, the proximate cause of the injuries, the foreseeability of the injuries, and the contributory negligence of the plaintiff were all questions about which reasonable minds might differ and presented questions of fact for the jury. It reversed the trial court and remanded for further proceedings. 184 Kan. at 703, 339 P.2d 702.

Flint Hills points out that suppliers of electricity are not insurers of the safety of...