Ashby v. Northwestern Public Service Co.
| Decision Date | 30 September 1992 |
| Docket Number | No. 17530,17530 |
| Citation | 490 N.W.2d 286 |
| Parties | Jeffrey ASHBY, Plaintiff and Appellant, v. NORTHWESTERN PUBLIC SERVICE COMPANY, Defendant and Appellee. |
| Court | South Dakota Supreme Court |
Michael J. Schaffer and Marie E. Hovland of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiff and appellant.
Francis M. Smith of Woods, Fuller, Shultz & Smith, Sioux Falls, for defendant and appellee.
Jeffrey Ashby (Ashby) appeals from trial court's grant of summary judgment in favor of Northwestern Public Service (Northwestern). We affirm.
Ashby was an employee of Duke's Tree Service (Duke's), an independent contractor which was hired to perform tree-trimming services for Northwestern. Ashby worked as part of a two-man crew with Troy Madden (Madden). Madden operated the boom and trimmed trees while Ashby remained on the ground to pick up branches. On June 30, 1983, while working in Freeman, South Dakota, Ashby sustained severe burns when a 7,200-volt power line was severed during the tree-trimming operation and fell to the ground, coiling around him. This occurred when the boom, operated by Madden, came into contact with the line which caused it to sever.
There is evidence that prior to the accident, a Northwestern employee, Duane Stahl (Stahl), warned Madden and Ashby about safety around high voltage lines after observing the Madden/Ashby crew working in an unsafe manner. Madden and Ashby stated they did not recall any such warning. There is further evidence that Mervin Erickson (Erickson), the owner of Duke's, repeatedly warned his employees of the dangers involved with working around high voltage lines. Erickson also stated that his employees were aware of safety precautions, such as asking Northwestern to de-energize the line or requesting line hoses to insulate the lines, but neither Madden nor Ashby made any such request prior to the accident. The record reflects that both Ashby and Madden were aware of the dangers involved in working around high voltage lines and knew the precautions they could take. * Also, this danger was clearly obvious to both Ashby and Madden. Madden's deposition testimony is as follows:
Thus, by Madden's own testimony, either a request for de-energization or more careful maneuvering of the bucket could have prevented the accident.
Northwestern and Duke's entered into a contractual arrangement whereby Duke's was delegated sole authority over the manner of performance of the tree-trimming operation. Under the contract it was Duke's obligation to request de-energization of the power lines, and Duke's responsibility to provide any protective equipment or other safeguards. The contract specifically states: "[T]he responsibility for safety in all tree trimming and tree removal work shall be and remain with the Contractor [Duke's]."
Pursuant to the contract, Duke's carried worker's compensation insurance for its employees and Ashby has received the benefits from this. Ashby commenced an action against Northwestern on June 13, 1986. Northwestern filed a motion for summary judgment, which was granted by the trial court. In granting the motion, the trial court determined that there was no breach of any duty of care owed by Northwestern to Ashby, and Northwestern was not vicariously liable for any negligent acts on the part of independent contractor, Duke's, and its employee, Madden. Ashby appeals from that determination. Further facts will be discussed below.
I. Whether trial court erred in holding there was no breach of any duty of care owed by Northwestern to Ashby?
II. Whether Northwestern can be held vicariously liable for the negligence of Duke's and its employees?
III. Whether Northwestern's acts constituted negligence per se?
The standard of review for a grant or denial of summary judgment is well settled in this jurisdiction. As we recently set forth in Waddell v. Dewey County Bank, 471 N.W.2d 591 (S.D.1991), the principal considerations are as follows:
With these considerations in mind, we address the merits of Ashby's appeal.
I. Duty of Care
Ashby asserted several theories under which Northwestern owed him a duty of care, and then breached it. First, he alleged that Northwestern, as the owner of the property, owed Ashby a duty of care as a business invitee on its property. Second, he alleged that, pursuant to Sec. 414 of Restatement (Second) of Torts, Northwestern had a duty to exercise reasonably careful supervision of the job site, since it retained some measure of control over the project. Finally, Ashby alleged Northwestern had a non-delegable duty of care to him based on the "inherently dangerous" activity doctrine.
The trial court found Northwestern's duty to Ashby was to refrain from affirmative acts of negligence which increased the risk of any danger incident to his engagement in the tree-trimming operation, and to properly discharge any duties flowing from control of the operation retained by it, if any. The trial court then found Northwestern had not breached its duty of care to Ashby.
We first address Ashby's claim that he was a business invitee and, as such, was owed a duty of care commensurate with the danger presented. While we generally agree with this proposition, after reviewing the record in this case we conclude there was no genuine issue of material fact.
Ashby was a business invitee of Northwestern's and at the same time an employee of Duke's, the independent contractor. None of the South Dakota cases Ashby cites us to involve the relationship of owner, independent contractor, and employee of independent contractor. They instead involve third-party claimants and are thus inapplicable to the case at bar. Musch v. H-D Elec. Coop., Inc., 460 N.W.2d 149 (S.D.1990); Mitchell v. Ankney, 396 N.W.2d 312 (S.D.1986); Ward v. LaCreek Elec. Ass'n, 83 S.D. 584, 163 N.W.2d 344 (1968).
Ashby also cites us to Ruhs v. Pacific Power & Light, 671 F.2d 1268 (10th Cir.1982), wherein the court denied summary judgment to defendant power company in a lawsuit brought by a tree trimmer for personal injuries caused by electric shock. In Ruhs, however, the plaintiff had only a few days of experience in trimming trees around power lines, and he testified that to his belief the lines were not energized. Id. at 1272. On this basis, the 10th Circuit held a jury question was presented as to whether the risk to Ruhs was reasonably foreseeable, stating:
The duty to an invitee is that of reasonable care under all the circumstances, including the duty to take reasonable precautions to protect the invitee from dangers which are foreseeable from the arrangement or use.
Id. This is a far different factual scenario than Ashby presents.
In the present case, both Ashby and Madden admitted they knew the line was energized and contact with it would be dangerous. Ashby had been employed by Duke's for approximately one year, and Madden for at least three years. Erickson stated he had repeatedly advised all Duke's employees of the dangers of contact with high voltage wires. Erickson had also informed Ashby and Madden that they could get a line de-energized or get insulator hoses for the lines if they simply requested it.
This court has held that a master will not be held liable for failing to provide a safe work place, where the danger is obvious to an employee and can readily be observed by a person of ordinary intelligence. Jackson v. Van Buskirk, 424 N.W.2d 148 (S.D.1988). There is no question that Ashby and Madden knew of the danger of working around high voltage lines and these lines were easily observable through the eyes of both these individuals. This principle is applicable to the facts of this case, since to hold otherwise would be making Northwestern an insurer for the safety of its independent contractor's employees, which this relationship clearly does not call for. See Lovell v. Oahe Elec. Coop., 382 N.W.2d 396 (S.D.1986); Engleman v. Nebraska Pub. Power...
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