Ballinger v. Gascosage Elec. Co-op., No. 72068

• Court: United States State Supreme Court of Missouri
• Writing for the Court: BLACKMAR; RENDLEN, HIGGINS and COVINGTON, JJ., and SATZ; HOLSTEIN; ROBERTSON; BILLINGS
• Citation: 788 S.W.2d 506
• Parties: Brent N. BALLINGER, Appellant, v. GASCOSAGE ELECTRIC COOPERATIVE, Tel-Elec Company, Respondents.
• Docket Number: No. 72068
• Decision Date: 17 April 1990

Page 506

788 S.W.2d 506 Brent N. BALLINGER, Appellant,
v.
GASCOSAGE ELECTRIC COOPERATIVE, Tel-Elec Company, Respondents. No. 72068. Supreme Court of Missouri,
En banc. April 17, 1990.

Page 507

Dale L. Beckerman, Spencer J. Brown, Mimi E. Doherty, Kansas City, for Gascosage.

Timothy Gammon, B.H. Clampett, Craig S. Oliver, Springfield, for Tel-Elec.

Thomas Strong, Steven D. Herrell, Jeffrey W. Bates, Springfield, for Ballinger.

BLACKMAR, Chief Justice.

The plaintiff, an unskilled electrical construction worker, recovered judgment for $1,500,000 on a jury verdict against Gascosage Electric Cooperative and its contractor, Tel-Elec Company. Both defendants appealed, and the plaintiff appealed from the refusal of his requested punitive damage instruction. ¹ The Court of Appeals, Southern District, reversed and remanded for new trial, treating the multiple issues in a comprehensive opinion. It transferred the case to us "because of the general interest and importance of a question involved in the case or for the purpose of re-examining the existing law." Mo. Const. art. V, § 10; Rule 83.02. We now assume jurisdiction of the entire case as on initial appeal. We affirm on the appeals of Gascosage and the plaintiff, but reverse and remand for further proceedings on Tel-Elec's appeal. We borrow freely from Judge Flanigan's well-crafted opinion without using quotation marks.

1. The Facts

On November 1, 1983, the plaintiff, while working as a "groundman," was seriously injured by an electrical shock. The accident occurred during the course of a renovation project known as the "Iberia Rephase,"

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which included the installation of 19 new poles to replace the poles supporting a single phase line carrying 7,200 volts of electricity. The new poles, numbered from west to east, spanned a distance of approximately one mile on the north side of, and generally parallel to, Highway 42 west. The single phase line, consisting of one energized line called the "hot phase" and a "neutral," was to be replaced by a three phase line consisting of three energized lines, or conductors, and one neutral.

On August 16, 1983, Gascosage and Tel-Elec entered into a contract for Tel-Elec to construct the Iberia Rephase. The contract provided that the work was to be done "hot," that is, with the three phase line being strung while the "hot phase" of the single phase line remained energized so that the electrical service to customers would not be interrupted.

Eazy Construction Company was not a party to the action but played an important role in the litigated event. The precise business relationship between Tel-Elec and Eazy must be determined by further evidentiary hearing, but the parties agree that Eazy, and not Tel-Elec, did all the work on the Iberia Rephase, and that the plaintiff had been hired as a groundman by Eazy on October 28, 1983.

The accident occurred in the afternoon of November 1, 1983. The "A" and "C" conductors had been tightened up and the crew was working on the "B" conductor. To remove the excess slack a lineman up in a "cherry-picker" would attach a rope handline to the conductor. The rope ran through a set of pulleys on the pole to a pickup truck to which it was attached. The truck would pull the slack out of the conductor. The excess length of conductor ran down the backside of the pole, and was rolled up on a wire take-up reel.

At the time of the accident plaintiff was tending the wire take-up reel located near pole 1. He had his left hand on the reel and his right hand on the B conductor. While the B conductor was being pulled by the truck it came into contact with the hot phase at a point between pole 9 and pole 10. It became energized and as a result Ballinger sustained serious and multiple injuries.

Plaintiff's trial theory was that the accident was caused by the negligence of Eazy and that Tel-Elec and Gascosage were both vicariously liable for Eazy's negligence under the "inherently dangerous activity" doctrine. Basing its verdict on Instruction 8, quoted below, the jury found the issues in favor of plaintiff and against Gascosage and Tel-Elec, finding that they were both responsible for the conduct of Eazy and 100 percent at fault, and that the plaintiff was without fault. The verdict assessed his damages at $1,500,000.

The lengthy jury trial was held in October of 1987. In April of 1985, in a proceeding under the Workers' Compensation Act, the plaintiff had received a lump sum settlement payment of $90,000 in addition to benefits previously received. The transcript of the hearing at which the compromise settlement was approved lists Ballinger's employer as "Tel-Electric (sic) d/b/a Eazy Construction Company." That transcript contains a stipulation, to which the plaintiff and his attorney agreed, that on November 1, 1983, he "while in the employ of Tel-Electric, d/b/a Eazy Construction Company, sustained an accident arising out of and in the course of [his] employment."

Prior to the jury trial, Tel-Elec moved for summary judgment on the ground that the workers' compensation settlement was a bar to Ballinger's civil action against Tel-Elec. The plaintiff requested a separate trial on the "workers' compensation issues," as did Tel-Elec. Tel-Elec's motion stated that it was engaged in a joint venture with Eazy at the time of the accident. The trial court ordered a separate trial as sought, and the jury trial was not concerned with the workers' compensation issues.

After the verdict was returned, the trial court sustained the plaintiff's motion for summary judgment against Tel-Elec "on the issue of workers' compensation immunity," and denied Tel-Elec's motion for summary judgment. Judgment was entered in accordance with the verdict against both defendants, with a $100,000 credit for

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a prior settlement with a dismissed party. The three parties filed separate appeals.

2. Submissibility

Gascosage has three specifications as to why it considers that the plaintiff has not made a submissible case. The third, absence of evidence of negligence on the part of Gascosage, is ruled adversely to it for the reasons discussed in Part 3 of this opinion. We conclude that the others also lack merit.

Gascosage first asserts that Tel-Elec breached its contract by assigning its whole performance to Eazy, in violation of the contract provision against subcontracting more than 25% of the work. This argument fails for a number of reasons, the most evident being that the contract permitted subcontracting, rather than forbidding it. Gascosage cannot avoid liability simply because Tel-Elec may have exceeded the boundaries of its permission. See City of New York v. Benenson, 41 Misc.2d 20, 244 N.Y.S.2d 653, 657 (N.Y.Civ.Ct.1963). Cf. Porter v. Thompson, 357 Mo. 31, 206 S.W.2d 509, 511-12 (1947) (Employer still liable for employee's conduct even though contrary to his orders); Baker v. McGue-Moyle Dev. Co., 695 S.W.2d 906, 912 (Mo.App.1984). ²

It next argues that there is no evidence that the activity of installing new conductors in the vicinity of an energized line is an "inherently dangerous activity." It points to evidence that "hot" installations of this kind are a normal part of the installation and renovation of electrical transmission lines and are regularly done without incident. The essence of inherent danger, however, is the need for special precaution. It is not sufficient for the defendant to show that the work can be done safely. For authority we need go no further than Smith v. Inter-County Telephone Co., 559 S.W.2d 518 (Mo. banc 1977), holding that the digging of a narrow vertical trench, which may collapse and cause injury if it is not properly shored, may be found to be an inherently dangerous activity. What is said as to the pressures of a vertical wall of earth applies, a fortiori, to the powerful, speedy and capricious forces of electricity. Hofstetter v. Union Electric Co., 724 S.W.2d 527 (Mo.App.1986), involving a fall from the step of a ringer crane, is not at all in point.

The defendants do not question the sufficiency of the evidence to show that Eazy was negligent. We reject Gascosage's challenges to the submissibility.

It is argued that there was reversible error in allowing witnesses to testify, over objection, that the rephase project was "inherently dangerous." We disagree. The phrase consists of words in common use. A question is not necessarily objectionable simply because it is phrased in terms of one of the hypotheticals of an instruction. ³ It matters not that the court, in its discretion, might properly have sustained the objection to the question as put.

3. The Instruction on Vicarious Liability

The plaintiff's verdict directing instruction reads as follows:

In your verdict you must assess a percentage of fault to defendants Tel-Elec and Gascosage, whether or not plaintiff Brent Ballinger was partly at fault, if you believe:

First, the installation of new conductors near the energized conductor at the Iberia rephase was an inherently dangerous activity, and

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Second, during said installation, Eazy either:

failed to maintain proper clearance between the hot phase and the B phase, or

failed to keep the B phase under positive control, or

failed to adequately ground the B phase, or

failed to supply plaintiff Brent Ballinger with rubber gloves, and

Third, in any one or more of the respects submitted in paragraph Second, Eazy was thereby negligent, and

Fourth, such negligence directly caused or directly contributed to cause damage to plaintiff Brent Ballinger.

The term "inherently dangerous activity" as used in this instruction means an activity which necessarily presents a substantial risk of damage unless adequate precautions are taken.

In assessing any percentage of fault to Tel-Elec and Gascosage under this instruction, you must consider the fault of Eazy as the fault of both Tel-Elec and Gascosage.

The defendants argue that this instruction is...