Bell v. East River Elec. Power Co-op., Inc.

Decision Date24 May 1995
Docket NumberNo. 18903,18903
PartiesCheryl BELL, Special Administrator of the Estate of Randy Bell, Plaintiff and Appellant, v. EAST RIVER ELECTRIC POWER COOPERATIVE, INC., and City of Wessington Springs, South Dakota, Defendants and Appellees. . Considered on Briefs
CourtSouth Dakota Supreme Court

Rick Johnson of Johnson, Eklund, Nicholson, Dougherty & Abourezk, Gregory, for plaintiff and appellant.

William F. Day, Jr., R. Alan Peterson of Lynn, Jackson, Shultz & Lebrun, P.C., Sioux Falls, for defendants and appellees.

KONENKAMP, Justice.

A man constructing a metal building on his property was electrocuted when he came close to an overhead high power line. In its suit the Estate introduced a written agreement between the power company and the former property owner, a railroad, asserting the agreement made the power company legally responsible for the death. The trial judge declined to direct a verdict on liability and the jury ruled the deceased had assumed the risk. The Estate appeals and we affirm.

FACTS

In March of 1959, East River Electric Power Cooperative, Inc. (East River) executed a Pole and Wire Agreement (Agreement) with the Chicago, Milwaukee, St. Paul and Pacific Railroad Company (Railroad) permitting East River to place poles and electrical transmission wires across the Railroad's property in Wessington Springs. The agreement stipulated the power lines would hang a minimum of 32 feet above the rail tops. East River agreed not to interfere with any improvements or facilities on the affected properties and to move its lines upon demand of the Railroad. East River further agreed to

release, indemnify and save harmless the Railroad, its successors and assigns, from and against all loss, damages, claims, demands, actions, causes of action, costs and expenses of every character which may result from any injury to or death of any person whomsoever[.]

The land covered by the agreement was eventually sold. On October 8, 1987, when Randy Bell acquired a portion of this property, no tracks ran beneath the power lines on his land.

In April 1991, Bell, an experienced carpenter, obtained a building permit from the City of Wessington Springs to construct a pole barn on his property. Under the plans he supplied to the city, the electrical lines would not cross over the proposed building. A building permit was issued, but an unplatted street which ran across Bell's property caused him to alter the direction and dimensions of the structure. Aware of this change, city employees assisted in a new survey of the property and moved a fire hydrant. The city electric superintendent used the city's pole digger to dig holes for the building directly beneath the power line. Though city officers were aware the pole barn would be built directly under East River's 34,500 volt transmission line, East River was never informed of the project. By September 4, 1991, the poles were set and the sides of the building were framed. Two months later, the tin sides and roof had been installed. The peak of the building stood 21' 1/2"' above ground. The power line crossed this point at 25'8"' leaving a 4'7 1/2"' clearance between the building's peak and the line. During construction, Bell and his crew repeatedly had to duck under and warn each other to be careful of the electrical line. As a part of routine maintenance, East River annually inspects its lines four times by air and one by ground. The December 1991 fly-over inspectors failed to notice the nearly completed pole barn beneath East River's transmission line.

On January 11, 1992, Bell was on the metal roof to install a ridge row on the peak. No one knows exactly what happened, as there were no witnesses, but at some point he was electrocuted. He never regained consciousness and died in a hospital eleven days later. Bell's wife, Cheryl, commenced suit on behalf of Bell's Estate against Wessington Springs and East River. The Estate's forensic expert concluded Bell was in a kneeling position working below the power line when electricity arced from the uninsulated line striking him in the head. Agreeing an arc could have occurred over a very short distance, East River's expert believed Bell's head touched the line or came within one-half inch of it, because flesh and hair were found imbedded in the wire.

The Estate asserted the Agreement with the Railroad pledged East River would assume all liability for injuries and Bell as a successor to the Railroad was entitled to the Agreement's benefits. The trial court refused to accept this interpretation. The jury found both East River and Wessington Springs negligent and ruled such negligence was a proximate cause of Bell's injuries. The jury also determined, however, that Bell assumed the risk. Hence, no damages were awarded. Wessington Springs settled with the Estate, leaving open East River's indemnity claim against it. Bell's Estate seeks reversal against East River on the following issues:

I. Did the trial court err in refusing to allow Bell the benefit of the terms of the Pole and Wire Agreement?

II. Did the trial court err by instructing the jury on assumption of the risk?

III. Did the trial court err by instructing the jury on South Dakota electrical safety statutes?

I.
A. Pole and Wire Agreement as Contract of Absolute Liability

Bell's Estate argues East River's Agreement was functionally a contract of insurance:

[East River] further agrees to release, indemnify and save harmless the Railroad, its successors and assigns, from and against all loss, damages, claims, demands, actions, causes of action, costs and expenses of every character which may result from any injury to or death of any person whomsoever, ... when such injury, death, loss or damage is caused or contributed to by, or arises out of the existence of said wires, or the construction, installation, maintenance, condition, use or presence of the same upon said railroad premises, or the transmission of electric current by means of said wires.

Accordingly, the Estate moved for a directed verdict on liability. The trial court denied the motion and when the Estate read this clause to the jury during closing arguments, the court sustained East River's objection. No explanation for the trial court's decision can be found in the record. To counter the Estate's argument that the power line constituted a trespass, however, East River offered and the court admitted the entire Agreement into evidence. While acknowledging the Agreement was a license to run power lines across Bell's property, the Estate contends the Agreement should also have been considered for its reciprocal legal import, as a contract making East River legally responsible for Bell's death.

The Estate urges us to adopt the reasoning in Seymour v. Chicago & Northwestern Ry. Co., 255 Iowa 780, 124 N.W.2d 157, 162 (1963), interpreting similar language as here. In that case a railroad gave a license allowing a paving company to maintain facilities on the railroad's right-of-way. In a suit brought by an injured third person who collided with a train, the railroad sought to enforce the license agreement requiring the paving company to pay the injured person's damages. The Iowa Supreme Court stated:

It is not seriously contended that the [railroad] did not have the right to make the agreement, even to the point of holding the [paving company] liable if the operation of the railroad caused or contributed thereto.

Id. at 160. The Seymour court held the licensee contractually liable inasmuch as the agreement constituted an absolute promise to pay. As it may apply to our case, two circumstances distinguish Seymour: (1) There, the railroad was not negligent, and if it were, (2) the license agreement specifically stated the paving company would still be liable even if the operation of the railroad caused or contributed to the loss. The necessity of specific language to contractually shift negligence liability is illustrated in the next case.

In Chicago & N.W. Transp. Co. v. V & R Sawmill, 501 F.Supp. 278 (D.S.D.1980), a nearly identical license agreement was at issue. There, Judge Bogue acknowledged:

The general rule, which has been adopted in South Dakota and elsewhere in the Eighth Circuit, holds that to relieve a party of the consequences of its own negligence the language of the agreement must be clear and unequivocal. Becker v. Black & Veatch Consulting Engineers, 509 F.2d 42 (8th Cir.1974); Associated Engineers, Inc. v. Job, 370 F.2d 633 (8th Cir.1966); Bartak v. Bell-Gallyardt & Wells, Inc., 473 F.Supp. 737 (D.S.D.1979), rev'd on other grounds, 629 F.2d 523 (8th Cir.1980); Schull Construction Co. v. Koenig, 80 S.D. 224, 121 N.W.2d 559, 562 (1963). There is a split of authority on the question of whether the term "negligence" must actually appear in the agreement in order to relieve a party of the consequences of its own negligence. (Citations omitted.)

Id. at 281. Interpreting the licensing agreement in question, the court found the phrase, "even though the operation of the Railway Company's railroad may have caused or contributed thereto" sufficiently clear to establish an intent to provide a railway with indemnity for its own negligence.

Here, the Agreement instead provides East River will be responsible for damages resulting in death to "any person whomsoever" when such death is "caused or contributed to by, or arises out of the existence of said wires...." This clause, the Estate argues, is expansive enough to cloak Bell's own negligence. The language is indeed broad, but it does not unequivocally relieve Bell (as the Railroad's successor) of his own negligence. It makes no mention of negligence on the part of the railroad and is silent in coping with instances of loss caused or contributed to by the railroad. Moreover, with the jury having found Bell assumed the risk, no language in the Agreement explicitly allows recompense to persons who knowingly decide...

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