Brashear v. Puget Sound Power & Light Co., Inc.
| Decision Date | 04 August 1983 |
| Docket Number | No. 49358-8,49358-8 |
| Citation | 667 P.2d 78,100 Wn.2d 204 |
| Court | Washington Supreme Court |
| Parties | Allan M. BRASHEAR, an incompetent, and James A. Feldman, his guardian, Respondents, v. PUGET SOUND POWER & LIGHT COMPANY, INC., a corporation, Petitioner. |
Perkins, Coie, Stone, Olson & Williams, Charles C. Gordon, Paul B. Goodrich, Heidi L. Sach, Seattle, for petitioner.
Abbey, Fox & Jaffe, Mark Jaffe, Martin D. Fox, Seattle, for respondents.
Petitioner, Puget Sound Power and Light Company, challenges the Court of Appeals decision which reversed a defense verdict in its favor. The Court of Appeals held that judgment notwithstanding the verdict was proper and that petitioner was required to exercise the highest standard of care in a case involving the maintenance of a lamp serviced by a 120-volt current. We reverse on both issues but find, as did the Court of Appeals, that the jury was improperly instructed on the issue of proximate cause. We therefore remand for a new trial on all issues.
This case arises from the following facts:
On December 9, 1978, respondent Allan Brashear, an experienced cable installer employed by Viacom Cablevision, went to a Mercer Island home to make a routine installation. The work required that respondent climb a utility pole owned and maintained by petitioner.
The cable wiring was located 22 feet above the ground. The utility pole also supported a street lamp located 3 feet below the cable. It was served by a 120-volt current.
Respondent ascended the pole without either donning a safety harness or putting on insulated gloves. Upon reaching the street lamp, respondent tested it to see if it would support his weight. Then, with one hand on the street lamp respondent reached for a telephone cable with the other. The simultaneous contact with a grounded cable and the street lamp resulted in respondent receiving an electrical shock. His hand remained clamped onto the cable until he lost consciousness several seconds later. He then fell from the pole and sustained serious injuries from the resulting impact with the ground.
Later investigation revealed that birds had nested inside the street lamp. The wet nesting materials had short-circuited the lamp, causing a 90-volt differential between the lamp casing and the grounded telephone cable.
Respondent filed suit against petitioner, alleging negligence in (1) failing to equip the street light with guards that would prevent the entry of birds; (2) failing to inspect with sufficient frequency to discover the nests; (3) failing to ground the lamp case so as to prevent a voltage differential of this sort from occurring; and (4) failing to warn the public of dangers associated with its poles.
Petitioner denied negligence and alleged that respondent was contributorially negligent in (1) failing to use proper safety equipment; (2) failing to test the street lamp for voltage with a voltage meter; and (3) making simultaneous contact with a possible voltage source and a ground. Petitioner also alleged that the negligence of respondent's employer was the proximate cause of respondent's injuries.
The jury found, in answer to interrogatories, that Puget Power was negligent but that its negligence was not the proximate cause of respondent's injuries. The court denied respondent's motion for judgment notwithstanding the verdict and entered judgment on the verdict dismissing the complaint. On appeal, the Court of Appeals, Division One, reversed. Brashear v. Puget Sound Power & Light Co., 33 Wash.App. 63, 651 P.2d 770 (1982). It found that the jury's verdict was not supported by substantial evidence and entered a judgment notwithstanding the verdict. It remanded the case for a new trial on the issues of contributory negligence and damages. We granted Puget Power's petition for review. We now reverse in part and affirm in part.
The Court of Appeals found first that the jury had been improperly instructed on the issue of proximate cause. With this conclusion we agree. The issue arises from the trial court's failure to give plaintiff's proposed instruction based on WPI 12.04, which states:
There may be more than one proximate cause of the same occurrence. If you find that the defendant was negligent and such negligence was a proximate cause of the injury or damage to the plaintiff, it is not a defense that some other cause or the act of some other person or company who is not a party to this lawsuit may also have been a proximate cause.
However, if you find that the sole proximate cause of injury or damage to the plaintiff was some other cause or the act of some other person or company who is not a party to this lawsuit then your verdict should be for the defendant.
The official comment to this instruction suggests that the instruction is appropriate when the act of some person who is not a party to the suit may have concurred with defendant's negligence to produce the injury. Here, both defendant's and plaintiff's theories suggested that the accident may have been caused by third persons. Thus, under the facts of this case, the instruction would have been appropriate.
Petitioner argues, however, that instruction 23, based on WPI 15.01, was sufficient to inform the jury that the event could have more than one proximate cause. That instruction provides:
The term "proximate cause" means a cause which in a direct sequence, unbroken by any new independent cause, produces the injury complained of and without which such injury would not have happened.
There may be one or more proximate causes of an injury.
Clerk's Papers, at 77. Under the circumstances of this case, we hold that it was error not to give the WPI 12.04 instruction. We believe the failure to give this instruction given the complexity of the proximate cause issue, caused confusion. Although WPI 15.01 did alert the jury of the possibility of multiple proximate causes, it did not inform the jury as to the effect that such a finding has upon defendant's liability. WPI 12.04 avoids such confusion by instructing the jury that the act of another person, though a proximate cause of the accident, does not excuse the defendant's negligence unless the other party's negligence was the sole proximate cause of the plaintiff's injuries. The failure to give a properly requested, adequate set of instructions on the issue of proximate cause thus was prejudicial. See generally Jonson v. Chicago, M., St. P., & P. R.R., 24 Wash.App. 377, 380, 601 P.2d 951 (1979). We believe that this prejudice warrants remanding the case for a new trial.
The Court of Appeals concluded, on the other hand, that an apparent inconsistency in the verdict justified its entering a judgment notwithstanding the verdict in plaintiff's favor. The Court of Appeals was concerned because the jury found that petitioner was negligent but that the negligence was not the proximate cause of respondent's injuries. It resolved this inconsistency by holding as a matter of law that proximate cause existed. The case was then remanded for trial only on the issues of damages and plaintiff's contributory negligence.
Petitioner challenges the Court of Appeals' resolution of the inconsistency by arguing that the verdict is inconsistent only if the jury finds petitioner negligent in permitting its lamp to become energized. Petitioner argues that under one of the plaintiff's other theories of negligence, i.e., failure to warn, the verdict would not be inconsistent. Petitioner urges since this is a permissible inference, the jury verdict should be reinstated. We disagree.
The standard for a judgment notwithstanding the verdict was recently outlined in Hojem v. Kelly, 93 Wash.2d 143, 145, 606 P.2d 275 (1980). There, the court noted:
A motion for a judgment n.o.v. should not be granted unless the court can say, as a matter of law, that there is neither evidence nor reasonable inference therefrom sufficient to sustain the verdict. All evidence must be viewed in the light most favorable to the party against whom...
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