Bouziden v. Alfalfa Elec. Co-op., Inc.

• Citation: 16 P.3d 450,2000 OK 50
• Decision Date: 27 June 2000
• Docket Number: No. 90,622.,90,622.
• Parties: Rosemary BOUZIDEN, Steve Bouziden, David Bouziden, Chris Bouziden, Eddie Kletke, Jeff Kletke, Lee Brandt, Norman Schaeffer, Bryce T. Benson, Keith Rose, David Wolgamott, Dennis Meyer, Elmer Meyer, Harold Lohmann, Randy Lohmann, Don Hughes, Bruce Sternberger, Leon Sternberger, Lloyd Sutton, Bar Boot Ranch, Inc., Brent Diel, Berta Diel, and Pearl Marie McMurphy, individually and as trustee of the Don McMurphy Trust, for themselves and as class representatives for all others similarly situated, Plaintiffs/Appellants, v. ALFALFA ELECTRIC COOPERATIVE, INC., Defendant/Appellee.
• Court: Oklahoma Supreme Court

16 P.3d 450

2000 OK 50

Rosemary BOUZIDEN, Steve Bouziden, David Bouziden, Chris Bouziden, Eddie Kletke, Jeff Kletke, Lee Brandt, Norman Schaeffer, Bryce T. Benson, Keith Rose, David Wolgamott, Dennis Meyer, Elmer Meyer, Harold Lohmann, Randy Lohmann, Don Hughes, Bruce Sternberger, Leon Sternberger, Lloyd Sutton, Bar Boot Ranch, Inc., Brent Diel, Berta Diel, and Pearl Marie McMurphy, individually and as trustee of the Don McMurphy Trust, for themselves and as class representatives for all others similarly situated, Plaintiffs/Appellants, v. ALFALFA ELECTRIC COOPERATIVE, INC., Defendant/Appellee.

No. 90,622.

Supreme Court of Oklahoma.

June 27, 2000.

Rehearing Denied September 26, 2000.

E.W. "Bill" Shaw, Matthew Neill Davis, Larry D. Lahman, Mitchell & DeClerck, P.L.L.C., Enid, Oklahoma, Donald L. Benson, Morford & Benson, Alva Oklahoma, Edward E. Sutter, Alva, Oklahoma, and Thomas G. Blakley, Blakley Law Firm, Enid, Oklahoma, for Plaintiffs/Appellants.

Ronald D. Wood, Richard T. McGonigle, Kevin S. Hoskins, Wood & McGonigle, P.L.L.C., Tulsa Oklahoma, for Defendant/Appellee.

Larry Derryberry, Patrick D. Shore, Derryberry, Quigley, Solomon & Naifeh, Oklahoma City, Oklahoma, for Oklahoma Association of Electric Cooperative, amicus curiae, on certiorari. BOUDREAU, Justice:

¶ 1 This is an appeal from a judgment on a jury verdict in favor of defendant, Alfalfa Electric Cooperative, Inc. (AEC), in a negligence suit, certified as a class action. Plaintiffs, Rosemary Bouziden, et al., as individuals and representatives of approximately 150 families (plaintiffs), sought damages for loss of property due to a wildfire that spread over some 80,000 acres. Three questions are presented on certiorari: 1) Did AEC owe a non-delegable duty of care to the plaintiffs imposed either by the law of easements or because AEC was engaged in an inherently dangerous activity; 2) Did the trial court correctly allow the jury to decide whether an independent-contractor relationship existed between AEC and O & M; and 3) Did the trial court err by instructing the jury on independent, intervening cause? We answer the first question in the negative and the second and third in the affirmative. Accordingly, we vacate the opinion of the Court of Civil Appeals, Division I, and reverse the judgment of the district court and remand this cause for further proceedings consistent with this opinion.

I. Factual Background

¶ 2 This negligence class action arose out of the following basic facts. Since 1978, AEC had contracted with O & M Power Line Construction Co. (O & M) to replace its utility poles. For several years, the contract between AEC and O & M was in writing. For 1996, the written contract had been orally extended. The basic terms of the contract provided that AEC would identify the poles to be replaced and O & M would perform the work at its discretion; AEC would supply the new utility poles and O & M would provide all necessary tools, equipment, and labor; O & M would be paid for each completed project upon AEC's inspection and approval of the work; and either party could terminate the contract at will.

¶ 3 On February 22, 1996, O & M was changing out utility poles in a branch line off AEC's main transmission line in Woods County, Oklahoma. The branch line was on AEC's easement running through rangeland approximately fifteen miles north of Freedom, Oklahoma. The line had not been energized for about two years.

¶ 4 The job required a digger truck, a large truck equipped with a large auger or digger unit, an overhead boom, and stabilizing outriggers. To get to the utility poles, the truck had to traverse rough terrain, with steep canyons and thickets. O & M positioned the truck and then used a winch to position the new poles in front of the truck. Shortly thereafter, a fire started underneath the truck. Attempts to drive the truck over the poles were unsuccessful. The truck ignited and the fire spread to the surrounding brush and grass.

¶ 5 The conditions in the area were near drought and O & M could not extinguish the fire. With the assistance of the Freedom Volunteer Fire Department, the fire was nearly contained. However, the wind speed increased and the fire escaped the fire breaks. The fire spread across approximately 80,000 acres of extremely dry rangeland and crop land in northern Woods County, Oklahoma, and southern Comanche County and Barber County, Kansas, before it was ultimately contained some two days later.

¶ 6 This negligence action was filed to recover damages for loss of buildings, fences, livestock, machinery and equipment, crops, and native grassland caused by the wildfire. AEC and O & M were named as defendants. The action was brought on behalf of the plaintiffs as individuals and as representatives of approximately 150 families who suffered loss caused by the wildfire. The trial court certified the class and the plaintiffs/appellants as class representatives. Prior to trial, O & M's liability insurance carrier paid an amount equal to the policy limits into the court and O & M was dismissed as a party defendant.

¶ 7 Before the trial court, plaintiffs contended that, as a matter of law, AEC's responsibility for the performance of work on its easement was not delegable to a third-party contractor and requested a jury instruction that AEC was liable for the negligent acts of O & M. The court refused to give the instruction. Instead, the trial court instructed the jury on the basic elements of an independent contractor relationship and the general rule that one is not liable for the acts and omissions of an independent contractor. The jury returned a verdict in favor of AEC and the trial court entered judgment thereon. Plaintiffs timely appealed.

¶ 8 In their petition in error, plaintiffs contended that the trial court erred by failing to hold, as a matter of law, that AEC's responsibility for the manner in which work was performed on its easement and right of way could not be avoided by delegating the work to a third party. Plaintiffs also attacked the sufficiency of the evidence produced at trial to support a finding that AEC and O & M entered into an independent contractor relationship. Finally, plaintiffs argued that the trial court erred in instructing on the issue of intervening cause.

¶ 9 In support of the argument that AEC could not avoid liability by delegating the work to an independent contractor, plaintiffs relied upon the "non-delegable duty exception" to the independent-contractor tort rule expressed in Minnetonka Oil Co. v. Haviland, 55 Okla. 43, 155 P. 217 (1916), and its progeny Shell Pipe Line Corp. v. Curtis, 1955 OK 212, 287 P.2d 681, and Cities Service Gas Company v. Christian, 1957 OK 247, 316 P.2d 1113, 1115. While recognizing that these cases involved claims by the holders of the servient estate, plaintiffs argued that Oklahoma Ry. Co. v. Boyd, 140 Okla. 45, 282 P. 157 (1929), extended the non-delegable nature of the duty, not only to the holder of the servient estate, but to all other third parties.

¶ 10 In response, AEC contended that Minnetonka and its progeny impose a non-delegable duty upon the dominant estate holder to use the easement in a manner that will not cause harm to the servient estate holder only. AEC argued that the holding in Boyd is premised upon the law relating to riparian landowners and not the law of easements.

¶ 11 The Court of Civil Appeals held that AEC owed a non-delegable duty of care to any third party and the duty of care could not be delegated to an independent contractor. While acknowledging that most of the easement cases discussing non-delegable duties involved claims by owners of the servient estate against the dominant tenant, the Court of Civil Appeals observed that none of those cases expressly limited its pronouncement to claims for damages suffered by the servient estate holders. The Court of Civil Appeals concluded that the trial court should have applied Boyd. Recognizing that O & M's status as an independent contractor and AEC's vicarious liability for O & M's negligence were the central factual and legal issues at trial, the Court of Civil Appeals found that failure to properly instruct the jury very probably affected the result and reversed the judgment entered on the jury verdict. The Court of Civil Appeals did not consider the issues raised and argued by plaintiffs concerning the status of the relationship between AEC and O & M and the insufficiency of the evidence to allow an intervening cause instruction. We granted AEC's petition for writ of certiorari.

II. AEC did not owe plaintiffs a non-delegable duty imposed either by the law of easements or because AEC was engaged in an inherently dangerous activity.

A. The independent contractor rule.

¶ 12 An independent contractor is one who agrees to perform a certain service without the control, supervision, or direction of his employer in all matters connected with the performance of the service except the result or product of the work.¹ Generally, an employer is not liable for the negligent acts or omissions of an independent contractor committed in the course of performing the contracted service.² This non-liability rule is based on the notion that since the employer has no right of control over the manner and method in which the service is performed, the employer is not answerable for an injury resulting from the manner in which the independent contractor carries out the details of the work.³

B. AEC, as the owner of an easement, did not owe a non-delegable duty to the plaintiffs.

¶ 13 The independent-contractor rule of non-liability has been eroded by well-recognized exceptions. One exception is that an employer who performs work through an independent contractor is liable for damages to third persons caused by the negligence of the independent contractor where the employer owes a non-delegable contractual or defined legal duty to the injured party.⁴ In cases of non-delegable duty, an...