Amant v. Pacific Power & Light Co., 747--III

• Decision Date: 26 March 1974
• Docket Number: No. 747--III,747--III
• Citation: 10 Wn.App. 785,520 P.2d 181
• Court: Washington Court of Appeals
• Parties: John AMANT, Appellant, v. PACIFIC POWER & LIGHT CO., a corporation, et al., Respondents, v. RIVERSIDE CONSTRUCTION, INC., a corporation, and Lord Bros. Construction, Inc., a corporation, Respondents.

Page 785

10 Wn.App. 785

520 P.2d 181

John AMANT, Appellant, v. PACIFIC POWER & LIGHT CO., a corporation, et al., Respondents, v. RIVERSIDE CONSTRUCTION, INC., a corporation, and Lord Bros.

Construction, Inc., a corporation, Respondents.

No. 747--III.

Court of Appeals of Washington, Division 3.

March 26, 1974.

Rehearing Denied May 9, 1974.

David E. Williams and Rembert Ryals, of Critchlow, Williams, Ryals & Schuster, Richland, for appellant.

F. N. Halverson of Halverson, Applegate, McDonald, Bond, Grahn, Wiehl & Almon, Yakima, for respondent Pacific Power & Light.

Frank W. Draper, of Detels, Draper & Marinkovich, Seattle, for respondents Gray & Osborne.

John Gavin, of Gavin, Robinson, Kendrick, Redman & Mays, Yakima, for respondents Riverside Const. and Lord Bros GREEN, Chief Judge.

Plaintiff, John Amant, appeals from an order dismissing his complaint against defendants, Pacific Power & Light Co. (hereafter called 'PP&L'), and Gray & Osborne, consulting engineers, upon their motions for summary judgment. While the record does not reflect the court's reasoning in granting the summary judgment, the briefs on appeal indicate that it was based upon two grounds: (1) plaintiff did not present sufficient facts to raise an issue as to defendants' negligence; and (2) plaintiff was guilty of contributory negligence as a matter of law. The propriety of the court's ruling creates the only issue on appeal. We reverse.

In ruling on a motion for summary judgment, the court must consider all material evidence and all reasonable inferences therefrom most favorably to the nonmoving party and, when so considered, if reasonable men might reach different conclusions the motion should be denied. The court's function is to determine whether a genuine issue of material fact exists, not to resolve the issue. A material fact is one upon which the outcome of the litigation depends. The moving party has the burden of proving that there is no genuine issue of material fact. Balise v. Underwood, 62 Wash.2d 195, 199, 381 P.2d 966 (1963).

The record upon which the summary judgment was based consists of affidavits, depositions, answers to interrogatories and the pleadings. This record construed in a light most favorable to plaintiff discloses the following facts. In 1967, the city of Yakima entered into a contract with Gray & Osborne, consulting engineers, to perform professional services in connection with the construction of a water transmission line, 5 or 6 miles in length, near Yakima. Actual construction of the pipeline commenced in the spring of 1969. Riverside-Lord Construction, Inc., a general contractor, installed the pipeline under the general supervision of and according to designs and specifications prepared by Gray & Osborne.

The pipeline right-of-way was bordered on one side by PP&L 's overhead electrical transmission lines. These lines were approximately 28 feet above the ground suspended from poles located about 18 feet from the pipeline ditch. One witness indicated the power line extended about 2 feet into the pipeline right-of-way. Bordering the other side of the right-of-way was a railroad track and adjacent to the railroad track was a public highway. Concrete pipes were delivered to the site by trucks. These trucks parked parallel to the highway near the railroad tracks where a 25-ton mobile crane with a 50-foot boom removed the pipe from the trucks. Plaintiff, employed by Riverside-Lord, fastened a choker line from the crane to the concrete pipe. The crane placed the pipe between the railroad tracks and the pipeline right-of-way along a trench excavated by a backhoe. An attachment on the backhoe would lift the pipe into the trench.

On the early morning of September 26, 1969, a concrete irrigation gate, weighing 500 to 600 pounds, was found in the pipeline trench. Riverside-Lord's foreman directed that the 25-ton mobile crane with a 50-foot boom by utilized to remove the obstruction. Plaintiff proceeded into the trench with the choker line. As he was hooking the line to the concrete gate, he received a severe electrical shock. It is unclear from the record whether the boom actually touched the power line or whether the electrical current arced from the power line to the boom and down the choker line to the plaintiff. Gray & Osborne's field inspector arrived at the scene just as the accident occurred.

First, was summary judgment properly granted in favor of PP&L upon the ground that no issue of fact existed as to its negligence? The standard of care of an electric company was set forth in Scott v. Pacific Power & Light Co., 178 Wash. 647, 650, 35 P.2d 749, 752 (1934), in a quote from Croswell, Law of Electricity § 234, pp. 205--06.

'Electric companies are . . . bound to use reasonable care in the construction and maintenance of their lines and apparatus, that is, such care as a reasonable man would use under the circumstances, and will be responsible for any conduct falling short of this standard. It follows from this rule, that the amount of care necessary varies with the danger which is incurred by negligence, for a prudent and reasonable man increases his care with the increase of danger. If but little danger is incurred, as, for instance, when the wires carry only a harmless electric current, such, for instance, as the telegraph or telephone current, only ordinary care may be required. While if the wires carry a strong and dangerous current of electricity, so that negligence will be likely to result in serious accidents, and perhaps death, or if a harmless wire is in dangerous proximity to a high tension wire, a very high degree of care, indeed, the highest that human prudence is equal to, is necessary. This is particularly true of electric light . . . wires, which carry a high tension current often of great danger. . . . The question of whether or not reasonable care has been used is in all cases for the jury, except where the court, on undisputed facts, can say that no reasonable man would have acted in the manner complained of, or that a reasonable man must have acted in the manner complained of. Between these limits the whole question is for the jury. . . .'

See Wray v. Benton County PUD, 9 Wash.App. 456, 458, 513 P.2d 99 (1973), and cases cited therein.

Responding to an interrogatory about prior contacts between Riverside-Lord cranes and its power line during construction, PP&L stated:

On May 23, 1969, the mobile crane involved in the accident of September 26, 1969, owned by Riverside Construction struck and damaged Pacific's primary conductor. . . . While moving the crane from one location to the other while the boom was in an erected position, Riverside Construction, Inc. ran into our powerlines causing them to burn down. Pacific learned of this incident on May 23, 1969.

On September 3, 1969, near the Naches Highway . . . a large track-type shovel, operated by Riverside Construction, contacted a 7200 volts to ground primary conductor causing the conductor to burn down. This accident was known to Pacific . . . September 3, 1969.

(Italics ours.) Phil A. Clark, line superintendent for PP&L, in an affidavit stated Prior to the Amant accident of September 26, 1969 I am aware of two prior contacts that Riverside-Lord made with power lines owned by PP&L. On May 23, 1969 A mobile crane that was spotting pipe for placement in the trench where the water line was being installed swung into a 'tap line' that came off the 12KV four wire Y circuit. The tap line burned down and was repaired on the same day. . . . Then again, on September 3, 1969, a back hoe contacted the 12KV four wire Y circuit causing the line to burn down.

(Italics ours.) After each incident, PP&L 'advised and instructed the personnel on the job of the danger involved in contacting these power lines and of the regulation prohibiting them from operating equipment within ten feet of the power lines.' Following the first incident, decals were placed upon the crane stating that it should not be operated within 10 feet of a power line.

Several alternative safety measures could have been taken by PP&L to protect the workers engaged in the pipeline construction. John F. Lane, a purported expert, in an affidavit filed on behalf of plaintiff, outlined these measures as follows: (1) de-energize the line; (2) raise the lines beyond the reach of equipment by using extensions on existing poles; (3) guard or insulate the line by use of plastic or rubber insulation devices to prevent the construction equipment from coming in contact with the energized conductor; (4) place the lines on or below the surface of the ground away from construction activity by use of insulated high-voltage cable; (5) require personnel working with the crane to wear rubber gloves; and (6) provide a 'baby-sitter' or 'safety-watcher' to keep the crane under observation at all times to make certain that it maintained a proper distance from the line. The line foreman for PP&L, in his affidavit, states that PP&L was never requested to utilize any of these safety measures and that the use of these measures was not feasible under the circumstances. Further, he stated the lines were constructed in compliance with safety requirements of the Department of Labor and Industries electrical code. PP&L asserts that its compliance with the code and the warnings it gave to the contractor's employees adequately discharged its duty, if any, to the plaintiff.

We conclude that the warning given after the first accident and the happening of a second accident followed only by another warning, coupled with the feasibility of employing additional safety measures, raised a genuine issue of material fact. See Black v. Public Service Electric & Gas Co., 56 N.J. 63, 265 A.2d 129 (1970); Mississippi Power & Light Co. v. Walters, 248 Miss. 206, 158 So.2d 2, 160 So.2d 908 (1963); Pike v. Consolidated Edison Co., 303 N.Y. 1, 99 N.E.2d 885 (1951); Alabama Power Co. v. Smith, 273 Ala. 509, 142 So.2d...