Campbell v. Alabama Power Co.
| Decision Date | 21 December 1979 |
| Citation | 378 So.2d 718 |
| Parties | Alice Patricia CAMPBELL, widow of Walter Campbell, II, deceased, etc. v. ALABAMA POWER CO. 78-561. |
| Court | Alabama Supreme Court |
Joseph M. Matranga, Beth Marietta, Mobile, for appellant.
James J. Duffy, Jr., Carroll H. Sullivan, of Inge, Twitty, Duffy & Prince, Mobile, S. Allen Baker, Jr., of Balch, Bingham, Baker, Hawthorne, Williams & Ward, Birmingham, for appellee.
This is an appeal from a summary judgment granted in favor of the Alabama Power Company (APCo) in a wrongful death action. We affirm.
For approximately a month prior to August 8, 1973, employees of Jo-Col, Inc., a subcontractor, were involved in grading streets and laying storm sewer lines in what was to be Coronado Estates, a new subdivision in Mobile. This involved the use of heavy equipment, including bulldozers, backhoes, scrapers, and a crane.
After clearing trees and undergrowth from the area, Jo-Col employees had graded the roadbed for the cul-de-sac at Coronado Court. The sewer pipes had been placed on the side of the graded street. Obie Johnson, a Jo-Col employee, was operating a backhoe, digging the hole for the sewer pipe installation. J. C. Jordan, another Jo-Col employee, was operating a forty foot crane which was being used to hook up the pipes and place them in the hole. The crane had been used for this job only two or three days. Walter Campbell, in either his first or second day of employment with Jo-Col, was fastening the sewer pipe to the hook on the end of the crane line. He was also serving as a "flagman" or "second set of eyes" for Mr. Jordan to avoid dangers above and to each side of the crane, especially power lines.
At the time of the accident APCo maintained a 7,200 volt uninsulated power line across the Coronado Court area. The line measured 33 feet 4 inches at the point of low sag where it crossed the cul-de-sac roadbed of Coronado Court. All the Jo-Col employees knew this was an electric line and that they could be injured if the crane being used came into contact with the line. Mr. Jordan and Campbell had a discussion earlier about the necessity of avoiding contact with the line.
Between 10:00 and 11:00 a. m. the morning of August 8, Walter Campbell was hooking the crane line to a piece of pipe when the boom of the crane came in contact with the uninsulated power line. Mr. Campbell was electrocuted.
APCo did not receive a request to service the subdivision and a copy of the subdivision plat until August 21, almost two weeks after the accident. After internal processing, an APCo work order was issued on the Coronado Estates subdivision in November, 1973.
Alice Patricia Campbell, widow of Walter Campbell, on her own behalf and on the behalf of their minor children, filed suit against APCo alleging that its negligence and wantonness resulted in Mr. Campbell's death. On May 24, 1974, the trial court granted APCo's motion to dismiss with leave to Mrs. Campbell to amend. Mrs. Campbell amended her complaint to include counts for negligence and wanton conduct in the construction, inspection, operation, maintenance and/or control of the high voltage electrical power line involved in the accident. APCo then filed a motion to dismiss the amended complaint, which was denied.
After an extended period of time during which both sides changed counsel and substantial discovery took place, on March 13, 1979, APCo filed a motion to compel Mrs. Campbell to answer certain interrogatories concerning expert witnesses and violations of the National Electrical Safety Code. That motion was granted. APCo also filed a motion for summary judgment. At the hearing on the motion for summary judgment, Mrs. Campbell filed supplemental answers to the interrogatories indicating that she did not plan to present expert testimony in the case and did not contend that APCo had violated any code or regulation such as the National Electrical Safety Code. After arguments on the motion, the court took the motion supported by Mrs. Campbell's answers to APCo's interrogatories and the depositions of Robert Rhem, an employee of APCo, and J. C. Jordan and Obie Johnson, employees of Jo-Col, under submission giving Mrs. Campbell an opportunity to present an affidavit on the notice furnished by Jo-Col to APCo of the hazard. No affidavit was submitted, and on April 2, the trial court granted APCo's motion for summary judgment. After withdrawing her motion to vacate the order of summary judgment Mrs. Campbell appeals.
The issue presented for our consideration is whether the evidence presented established that there was no dispute concerning notice of construction to APCo which would lead it to reasonably anticipate someone would come in contact with its uninsulated electric lines.
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