Anderson v. Northwestern Elec. Co-op.

• Citation: 760 P.2d 188
• Decision Date: 12 July 1988
• Docket Number: No. 66402,66402
• Parties: Terry ANDERSON and Marie Anderson, Appellants, v. NORTHWESTERN ELECTRIC COOPERATIVE, an Oklahoma corporation; and McGraw-Edison Company, A Delaware corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 188

760 P.2d 188

1988 OK 81

Terry ANDERSON and Marie Anderson, Appellants, v. NORTHWESTERN ELECTRIC COOPERATIVE, an Oklahoma corporation and McGraw-Edison Company, A Delaware corporation Appellees.

No. 66402.

Supreme Court of Oklahoma.

July 12, 1988.

Certiorari to the Court of Appeals Oklahoma City Division; Ray Dean Linder, Trial Judge.

The Court of Appeals upheld the District Court's entry of summary judgment for the appellees on the basis that the appellant, Terry Anderson, assumed the risk of possible injury by entering his truck after entangling gin poles in electrical power lines. On certiorari, the appellants assert that the motion for summary judgment was erroneously granted and allege: (1) that the grant of summary judgment is contrary to art. 23, § 6 of the Oklahoma Constitution; and (2) that triable issues of material fact existed making an entry of summary judgment inappropriate. We find that: (1) under the facts presented, an entry of summary judgment on the issue of assumption of the risk contravened art. 23, § 6 of the Oklahoma Constitution; and (2) disputed issues of material fact existed making the entry of summary judgment inappropriate.

CERTIORARI GRANTED; OPINION OF THE COURT OF APPEALS VACATED; TRIAL COURT REVERSED; CAUSE REMANDED.

John M. Merritt and Celia A. Roony, Oklahoma City, for Terry Anderson, and Marie Anderson, appellants.

Murray E. Abowitz, Oklahoma City, for Northwestern Elec. Co-op., Inc., appellee.

Robert D. Nelson, Oklahoma City, for McGraw-Edison, Co., appellee.

KAUGER, Justice.

On certiorari, the appellants, Terry and Marie Anderson, present two issues for determination by this Court: ¹ (1) whether under the facts of this case, the grant of summary judgment constituted a violation of the Oklahoma Constitution, art. 23, § 6; ² and (2) whether material issues of fact existed making the entry of summary judgment by the trial court inappropriate.

We find that: (1) contradictary facts existed on the issue of assumption of the risk, rendering the grant of summary judgment a violation of art. 23, § 6; and (2) disputed issues of fact were presented making the award of summary judgment inappropriate.

FACTS

On October 5, 1983, the appellant/truck operator, Terry Anderson, was operating a winch truck equipped with gin poles approximately thirty feet in length in an attempt to replace a windmill head on the property of Verne Null in the rural regions of Harper County, Oklahoma. He had succesfully removed the old head from the windmill and was attempting to maneuver into position to raise the new head when the truck's gin poles came into contact with overhead electricity distribution lines owned and maintained by the appellee, Northwestern Electric Cooperative.

Marie Anderson, the truck operator's wife, was standing on the running board of the truck when the incident occurred and told her husband that the poles were in contact with the electric lines. At her husband's insistence, Mrs. Anderson jumped from the truck. When she hit the ground she could see a grass fire burning under the vehicle and yelled to her husband. At that point, he also jumped from the truck. Neither of the Andersons were injured when they exited the vehicle. Anderson sent his wife to a nearby farmhouse to call for assistance.

In order to remove the old millhead, Anderson had used a propane powered welding torch mounted to the winch truck. Anticipating that he might have to use the torch again in order to install the new millhead, he did not turn the valve on the propane tank to its closed position. When Anderson jumped from the truck and saw the fire, he feared that the propane tank would explode if the valve were not sealed off. After sending his wife for help, he attempted to reach the valve to the propane tank to turn it off. It was at this point that Anderson was injured. As he reached for the propane tank, he was severely shocked and burned. Burns covered thirty-eight percent of his body and portions of both his legs were amputated along with fingers from both hands. Terry Anderson has been unable to work since the accident occurred.

The Andersons filed suit against the appellee, Northwestern, on November 28, 1984, alleging that the electric company's negligent maintenance and supervision of their electrical lines was the proximate cause of Anderson's injuries. McGraw-Edison, manufacturer of a 35 amp reclosure unit, which Anderson alleged should have cut power to the electric lines once the gin poles came in contact with them, was joined as a defendant by amended petition on October 3, 1985. Joinder was premised on the theory that the company had breached both express and implied warranties of fitness under the Uniform Commercial Code.

On February 18, 1986, Northwestern filed a motion for summary judgment on grounds that the undisputed facts showed that they were entitled to judgment as a matter of law. After argument on the motion, the trial court granted Northwestern's motion on March 28, 1986, on the basis that the facts showed that Terry Anderson had voluntarily assumed the risk of injury when he reached to turn off the valve to the propane tank knowing that the gin poles were entangled in the electric lines. At the hearing, McGraw-Edison placed its oral motion for summary judgment on the record asking leave to adopt as its own the arguments and pleadings of Northwestern. McGraw-Edison later filed a written statement stipulating for purposes of the motion for summary judgment that the reclosers were defective in design and/or manufacture, and that the defects were the proximate cause of the plaintiff's injuries.

The Andersons filed a motion for reconsideration of the motion for summary judgment on April 7, 1986; but on May 27, 1986, the trial court sustained its prior ruling as it pertained to Northwestern and granted the motion for summary judgment previously filed by McGraw-Edison. On appeal, the Court of Appeals affirmed the trial court's grant of summary judgment on the basis that Terry Anderson voluntarily assumed the risk of injury by returning to his truck to attempt to turn off the valve to the propane tank.

I

SUMMARY JUDGMENT ON THE ISSUE OF ASSUMPTION OF THE RISK

CONTRAVENES THE OKLAHOMA CONSTITUTION, art. 23, § 6,

WHERE THE PLAINTIFF PRESENTS FACTS TENDING TO CONTRADICT A

FINDING OF VOLUNTARY ASSUMPTION OF A KNOWN RISK.

The Oklahoma Constitution, art 23, § 6, requires that the defense of assumption of the risk "shall in all cases whatsoever, be a question of fact, and shall, at all times, be left for the jury." This mandatory language has been strictly followed. ³ However, two narrowly defined judicial exceptions to the absolute rule of submission of the issue to the trier of fact have developed. These exceptions are set forth in Flanders v. Crane Co., 693 P.2d 602, 606 (Okla.1985), upon which both the appellants and appellees rely as authority for their positions. In Flanders, we stated the general principle that in cases where assumption of the risk and contributory negligence are issues, art. 23, § 6, requires that they always be submitted to a jury except under two narrowly defined situations: (1) where a plaintiff fails to present evidence tending to show primary negligence on the part of the defendant; or (2) where, upon the undisputed facts, reasonable people exercising fair and impartial judgment could not reasonably reach different conclusions concerning the issues. ⁴

The appellees argue that Terry Anderson falls within both exceptions to the general rule that assumption of the risk should be left to the trier of fact. Northwest and McGraw-Edison first allege that the Andersons failed to show any evidence of primary negligence on the part of either the electric company or the manufacturer; and, second, that under the undisputed facts reasonable minds could not fail to find that Anderson assumed the risk of injury when he returned to his truck to try and shut off the valve of the propane tank knowing that the gin poles were in contact with the power lines.

A PRIMARY NEGLIGENCE

On the first issue--primary negligence--the appellants attached to their brief in opposition to the motion for summary judgment an affadavit by an expert in the field of electricity enumerating five areas in which he felt violations of good engineering practices and negligent operation and maintenance by Northwestern and McGraw-Edison contributed directly to Anderson's injury. ⁵ The appellees argue that this statement was insufficient to show any indication of primary negligence on their parts because the electrical lines were a mere condition which a negligent plaintiff encountered. ⁶ However, the expert's statements indicate that good engineering practices require some minimal protection to the general public. This evidence alone was sufficient to survive the appellees' motion for summary judgment on the issue of negligence.

B POSSIBILITY OF DIFFERING CONCLUSIONS

Northwestern and McGraw-Edison next argue that no issue was raised on assumption of the risk because reasonable persons exercising fair and impartial judgment could not have found that Anderson did not assume the risk of injury when he returned to his truck knowing that the gin poles were in contact with the power lines. However, the defense of assumption of the risk applies only where the person alleged to have assumed the risk is found to have known or have been charged with knowledge of the danger. ⁷ Additionally, familiarity with existing physicial conditions which are responsibile for a party's injury or mere knowledge of the danger without full appreciation of the risk will not bar recovery. ⁸

Terry Anderson testified that he was not sure that the electricity was off when he attempted to turn off the propane valve. However, he also testified in his deposition that he did not believe that he would be electrocuted when he reached for the propane valve because: (1) although the gin poles were entangled in the...