Bunker v. Association of Missouri Elec. Cooperatives, WD

• Decision Date: 11 August 1992
• Docket Number: No. WD,WD
• Citation: 839 S.W.2d 608
• Parties: Terry BUNKER, Appellant, v. ASSOCIATION OF MISSOURI ELECTRIC COOPERATIVES, Respondent, Federated Rural Electric Ins. Intervenor. 45380.
• Court: Missouri Court of Appeals

Page 608

839 S.W.2d 608

Terry BUNKER, Appellant, v. ASSOCIATION OF MISSOURI ELECTRIC COOPERATIVES, Respondent Federated Rural Electric Ins. Intervenor.

No. WD 45380.

Missouri Court of Appeals Western District.

Aug. 11, 1992.

Motion for Rehearing and/or Transfer to

Supreme Court Denied Sept. 29, 1992.

Application to Transfer Denied Nov. 24, 1992.

Jerold L. Drake, Grant City, Timothy Boxler, Kansas City, for appellant.

Allan D. Seidel, Trenton, David Phillip Madden, Kansas City, for respondent.

Edward Maschil Manring, Albany, for intervenor.

Before HANNA, P.J., and FENNER and ULRICH, JJ.

HANNA, Presiding Judge.

The appellant, Terry Bunker, was employed by Nodaway Worth Electric Cooperative (hereafter "Nodaway") as a groundman. Nodaway is a member of the Association of Missouri Electric Cooperatives (hereafter "the Association"), the defendant respondent. The Association is a non-profit organization which provides various services to its members, including safety training. Bunker brought suit against the Association alleging it failed to exercise reasonable care in furnishing educational services to him and his co-employees in safety matters which caused his injuries. The trial court granted defendant's motion for summary judgment on the grounds that there was no genuine issue of material fact. The events which gave rise to this litigation are as follows.

The plaintiff was hired by Nodaway in June 1981, at which time he was 21 years old and had a high school diploma. On March 27, 1983, an ice storm swept through Worth County and downed a "phase" line which the plaintiff's team was sent to repair. The team consisted of Mr. Fred Poppa, operations manager of Nodaway, Mr. Barry McClelland, and the plaintiff. The damage was done to a single phase system. This type of system consists of two wires, one on top of the other. The top line was a phase wire, which was energized; the bottom line was a neutral wire. The storm had broken the top line, or phase wire. The team cut down the phase wire and let it remain on the ground. It then used the existing neutral wire to replace the downed phase wire. Because the team had been working long hours, this was their last job, and it was a quick method of getting the power back on, they did not dispose of the phase wire or replace the neutral. The repair is described as an "open neutral." Service was restored to the area. This method of repair is not an acceptable procedure, although it is done.

Four days following the initial repair, the plaintiff, along with others, were sent to make final repairs to the downed line. Upon arrival, the plaintiff got out of his truck and began pulling the cut line out of the bushes where the phase line had been dropped when the open neutral repair was done. He apparently came in contact with a wire lopped over the phase wire. The downed line was touching the energized line causing it to be charged with 7200 volts of electricity. Although rubber gloves were in the truck, he did not wear them. Bunker received serious injuries.

Nodaway requires its employees to attend safety seminars provided by the Association. The plaintiff attended at least three of these seminars. The seminars deal with the importance of rubber gloves and protective gear.

Mr. Poppa, as operations manager, was in charge of all training for Nodaway, including safety instruction. Mr. Poppa was aware that the open neutral was not taught by the Association as an approved method of repair. Mr. McClelland had attended the seminars put on by the defendant Association and knew that leaving an open neutral repair was not safe. The Association recommended only one form of line repair, which was not the open neutral used by this team. Both Poppa and McClelland were aware of the risks associated with this short-cut method of repair. Indeed, every lineman deposed in this case knew the Association disapproved of the open neutral method and that the Association did not teach this type of repair.

It is conceded by plaintiff and argued by him that his injury would not have occurred if he had been wearing rubber gloves, if the line had been de-energized, or if the wire had been rolled up immediately after it was cut. All three of these procedures were taught in the safety seminars put on by the defendant Association.

To address an appeal from summary judgement this court must review the entire record in the light most favorable to the party against whom the court entered the judgement. Wood & Huston Bank v. Malan, 815 S.W.2d 454, 457 (Mo.App.1991). The trial court may enter summary judgement when the pleadings, depositions and admissions on file, together with the affidavits, if any, show that no issue of material fact exists and that the law entitles the moving party to a favorable judgment. Id.; Rule 74.04(c). To overcome a summary judgement motion, the party against whom judgement is sought must produce facts that demonstrate the existence of a genuine issue of material...