Barrett v. Foster Grant Co., Civ. A. No. 2944.

• Decision Date: 23 December 1970
• Docket Number: Civ. A. No. 2944.
• Citation: 321 F. Supp. 784
• Court: U.S. District Court — District of New Hampshire
• Parties: Ronald A. BARRETT, Plaintiff, v. FOSTER GRANT CO., Inc., Defendant and Third-Party Plaintiff, v. TRANSFORMER SERVICE, INC., Third-Party Defendant.

321 F. Supp. 784

Ronald A. BARRETT, Plaintiff, v. FOSTER GRANT CO., Inc., Defendant and Third-Party Plaintiff, v. TRANSFORMER SERVICE, INC., Third-Party Defendant.

Civ. A. No. 2944.

United States District Court, D. New Hampshire.

November 5, 1970.

On Rehearing December 23, 1970.

William Maynard, Maynard, Dunn & Phillips, Concord, N. H., Paul J. Liacos, Peabody, Mass., for plaintiff.

Lawrence E. Spellman, Sulloway, Hollis, Godfrey & Soden, Concord, N. H., for Foster Grant Co., Inc.

Paul E. Nourie, Wiggin, Nourie, Sundeen, Pingree & Bigg, Manchester, N. H., for Transformer Service, Inc.

OPINION

BOWNES, District Judge.

This is a tort action brought by an employee of an independent contractor, Transformer Service, Inc., against the owner of electrical transformers, Foster Grant Co., Inc., upon which the plaintiff was working when he incurred severe electrical burns allegedly due to the negligence of the defendant-owner. The defendant-owner brought a third-party complaint against the independent contractor alleging reliance upon representations of the contractor as to the performance of the work, breach of express and implied warranty, and a right of indemnity. Jurisdiction is based on diversity of citizenship. 28 U.S.C. § 1332. The plaintiff is a resident of New Hampshire, Foster Grant Co., Inc., is a Delaware corporation with its principal place of business in Massachusetts, and the third-party defendant, Transformer Service, Inc., is a New Hampshire corporation. The amount in controversy exceeds $10,000.

THE FACTS

Foster Grant is a large plastics manufacturer with sunglasses being one of its principal products. At the time of the accident, February 5, 1968, it owned and operated sixteen electrical transformers in conjunction with its manufacturing process at its plant in Leominster, Massachusetts. Three of these transformers have a direct bearing on the facts of the accident. These three, along with four others, were located at the rear of one of the buildings in an area enclosed by a chain link fence. They were located together in a "bank" on the left-hand side of the fenced-in area. Pl's. Ex. 4. Four signs were posted on different sections of the fence stating "Danger - High Voltage." The transformers are identified as number twenty, twenty-one, and twenty-two; twenty-one being the middle transformer and the one on which the plaintiff was working when he was electrocuted; twenty being the transformer on the left; and twenty-two, the transformer on the right looking at the "bank" from outside the fence. D. F.G. Ex. 2. These transformers had been purchased by Foster Grant in 1951 from the Massachusetts Electric Company and they were in the same position and essentially in the same condition on the day of the accident as when originally purchased. The transformers were used to reduce the voltage of the electrical current as received from the main transmission line to a lower voltage so it could be used to power air compressors.

For purposes of this case, it can be stated that there are two sides to a transformer, the high voltage side and the low voltage side. Two high voltage lines run to each transformer and are attached to it on the fence side of the transformer which is the "high" side in the context of this case. Pl. Ex. 3. These high voltage lines constitute a serious danger of electrocution to anyone coming in contact with them. Two low voltage lines emerge from the transformer on the building side approximately opposite the point of attachment of the high voltage lines. D. F.G. Ex. 3. The lines on the low voltage side of the transformer do not constitute the hazard that the lines on the high side do because of the reduced current being carried by them. The danger posed by the high voltage lines is primarily due to the fact that for most of their length from the transmission line to the transformer, they are completely bare, i. e., are not insulated in any way. D. F.G. Ex. 2; Pl. Ex. 14; Pl. Ex. 3. Anyone coming in contact with these bare wires would, therefore, receive a severe electrical shock.

In 1954, Foster Grant hired Transformer Service as an independent contractor to recondition the oil that is used in its transformers. Oil is essential for the effective operation of a transformer and has to be reconditioned from time to time in order for the transformer to continue to function properly. The decision to hire Transformer Service for this work was made on behalf of Foster Grant by Mr. Harvey, its electrical engineer, and the person in charge of maintenance of its electrical installations. The main, if not the sole reason, for deciding to hire Transformer Service was because its reconditioning process did not require that the transformer be de-energized while the process was going on. De-energizing a transformer means shutting off the electrical current to and from it which, in turn, means that the manufacturing process dependent upon that current halts completely. De-energizing these transformers for oil reconditioning would have meant a total plant shut down of production for a period of three and one-half to four hours.

No investigation or check was made by Foster Grant as to the training, experience, and skill of the employees of Transformer Service, Inc. Foster Grant relied exclusively on the representations of Transformer Service through its salesman and its written material in making its decision to use its services. Mr. Harvey of Foster Grant did observe the work of the Transformer Service employees on the transformers over the years between 1954 and 1968, and considered the employees to be competent and efficient.

There was no written contract between Foster Grant and Transformer Service. The practice followed was for Transformer Service to check the oil in Foster Grant's transformers periodically and then send a written report to Foster Grant. Foster Grant would then decide whether or not to issue a purchase order designating that the oil be reconditioned in certain specified transformers. Upon receipt of such an order, Transformer Service would then proceed to recondition the oil as specified. Transformer Service did not enter into any written indemnity agreement with Foster Grant nor was plaintiff's exhibit 33 sent or given to it by Foster Grant at any time prior to the date of the accident.

A brief description of the oil reconditioning process is now in order. To understand this process, it is necessary first to define the basic parts of a transformer. They are: a "cover" on the top; a "collar" located between the "cover" and the body or "barrel" which contains the oil. In the reconditioning process, a suction hose is first attached to an outlet plug or faucet located at the bottom of the barrel. This hose is run from the transformer to a truck which contains the equipment and materials for reconditioning the oil. The oil is treated in the truck and then returned to the transformer through another hose which is attached to a metal adapter screwed into a hole in the collar. A metal inlet plug first has to be removed so that the hose and adapter can be inserted into the collar. Before the oil reconditioning process starts, a vent or breather plug located in the cover has to be removed so that air can flow into the barrel. The oil reconditioning process is a continuous one with the oil circulating from the transformer to the truck and then back again to the transformer and goes on until the person in charge determines by instruments in the truck that the oil needs no further treatment. The time involved varies from one-half to one and one-half hours depending upon the condition of the oil at the start.

On prior occasions when the employees of Transformer Service were on the premises of Foster Grant to either work on the transformers or take oil samples from them, it had been the practice of Foster Grant, through Mr. Harvey, to assign an electrician to stay with the employees while they were working within the fenced-in area. An employee by the name of Lord, who was an electrician, had been given this assignment on prior occasions and had been told on prior occasions to "be sure that the transformer fellows did not get into a dangerous area." Testimony of Harvey. Since the "transformer fellows" would be working within the fenced-in area, it is obvious that the only really dangerous area was in the vicinity of the bare high voltage wires. Most other companies who used the services of Transformer Service also sent a man to the transformer area to watch the men as they worked and to caution them if they got too close to the bare high wires. The bare wires on this "bank" could have been insulated by a crew of three men in four hours at a cost of about $400, not including the cost of plant shutdown. Such insulation would have prevented, or at least greatly reduced, the chances of electrocution to anyone coming in contact with the bare wires, and it would not have impaired the efficiency of the transformers in any way.

On February 5, 1968, the plaintiff was sent to the plant of Foster Grant at Leominster, Massachusetts, along with another employee of Transformer Service, Inc., Arthur Locke, to recondition the oil in transformers twenty, twenty-one, and twenty-two. Locke was in charge of the work and the plaintiff was his assistant. Although both men had extensive prior experience in reconditioning oil in transformers, they had no special training in electricity and no training as to the proper safety practices to be followed when working in close proximity to bare high voltage wires. In fact, the president of Transformer Service, Inc., characterized his employes as "plumbers" rather than electrical workers. There was an insulating blanket and electrical insulating gloves in the truck, but neither man had received any instructions in the use of them. The safety instructions that the plaintiff and Locke received at the time of the initial employment for Transformer Service,...