Campbell v. Baltimore Gas and Elec. Co.

• Citation: 619 A.2d 213,95 Md.App. 86
• Decision Date: 01 September 1992
• Docket Number: No. 732,732
• Parties: Robert B. CAMPBELL, Jr. v. BALTIMORE GAS AND ELECTRIC COMPANY. William SIEGLEIN v. BALTIMORE GAS AND ELECTRIC COMPANY. ,
• Court: Court of Special Appeals of Maryland

Page 86

95 Md.App. 86

619 A.2d 213

Robert B. CAMPBELL, Jr. v. BALTIMORE GAS AND ELECTRIC COMPANY.

William SIEGLEIN v. BALTIMORE GAS AND ELECTRIC COMPANY.

No. 732, Sept. Term, 1992.

Court of Special Appeals of Maryland.

Feb. 1, 1993.

H. Thomas Howell (William F. Gately and Howell, Gately, Whitney & Carter, on the brief), Towson, for appellant, Campbell

Donald F. Rogers, Baltimore, for appellant, Sieglein.

Laurie R. Bortz and Stephen J. Rosasco, Baltimore, for appellee.

Argued before GARRITY, BLOOM and DAVIS, JJ.

GARRITY, Judge.

This case arises out of an accidental contact between an aluminum ladder being raised by appellant and an overhead electrical line operated by BG & E. Following a jury verdict in favor of appellant, the trial judge granted BG & E's Motion for Judgment NOV, ruling that appellant was barred from recovering because he had been contributorily negligent as a matter of law.

BACKGROUND

On the morning of April 7, 1986, William Sieglein, Mark Jenkins, and Robert B. Campbell, Jr., respectively owner, foreman, and employee of Sieglein Roofing and Siding Co., Inc. (S.R.S.C.), arrived at a residential property in Baltimore County, Maryland, where they were to install aluminum siding. After arriving at the site, Sieglein walked around the house with Jenkins, explaining what work was required. Campbell, meanwhile, unloaded materials from the company truck. Sieglein thereafter left the premises without discussing the work with Campbell and without saying anything regarding the overhead electrical wires near the house. ¹

Sieglein testified that in advance of siding work he usually visited the job site in order to prepare an estimate and determine whether any overhead utility wires, most typically a 110-volt "service drop" line connecting the electrical system of a house to the utility's high voltage lines, needed to be moved before commencing work. There was evidence The layout of overhead electrical wires at the subject job site on the day of the accident consisted of five overhead electrical lines grouped together approximately 9 1/2 feet from the east side of the house and two to three feet beyond a chain link fence marking the boundary of the property. In addition, there was a single line that was several feet higher than the group of lines and ran slightly diagonal to these other lines. ³ This line was closer to the house but still beyond the fence marking the boundary of the property. All of the wires were in plain view on a clear day.

that it was standard procedure for Sieglein to contact BG & E to move an overhead line dangerously close to a work site. ²

After viewing the overhead lines, Sieglein determined that the lines were safely away from the house by at least ten feet and, therefore, he did not notify BG & E of the siding work or request that the lines be moved while the aluminum siding was installed. Jenkins, the foreman, based on his own observations, concluded that the overhead lines would not interfere with the installation and posed no danger. Campbell testified that he also noticed the overhead lines. He assumed the lines carried electricity, but since they appeared to be safely beyond the fence marking the property line, Campbell began work without any further consideration of the proximity of the lines to the job site.

The job that day consisted primarily of the installation of soffit and siding beneath a roof eave running along the east The Sieglein crew had apparently failed to notice the distribution line. It was closer to the house and a few feet higher than the cluster of five other overhead lines that were outside the fence that had been observed by Sieglein and the two Sieglein employees present on the job site that day.

side of the house. The division of labor between Campbell and Jenkins was such that Campbell was engaged almost exclusively in cutting and bending soffit pieces that he then handed to Jenkins. Jenkins, in turn, took these materials up the ladder and completed the installation. The work progressed uneventfully until Jenkins needed to extend the 40 foot ladder in order to reach a point where the roof eave rose sharply to a peak. Jenkins called to Campbell, who was at a work table in the backyard, to come to the side of the house and help raise the ladder. Since the ladder weighed approximately 100 pounds and did not have a rope attached to the pulley normally used to extend the ladder, it was difficult and awkward to extend. On this day, the two men attempted to extend the ladder using a method Jenkins had devised and that the two men had used on numerous occasions without incident. Employing their unique but usual method of extending the ladder, Campbell positioned himself between the ladder and the fence. As he braced himself against the fence, while standing upon tilting cinder blocks with holes, Campbell held the ladder steady in an upright and vertical position. He did not look up towards the top of the ladder because the overhead wires appeared to him to be outside the fence. Jenkins, facing Campbell (facing away from the house and towards the overhead lines) looked up towards the overhead lines that appeared to be well outside the fence, but did not notice any wire overhead. While Campbell held the ladder steady in a vertical position, Jenkins extended the top section of the ladder upward. He then stepped up a rung on the ladder and pushed the top section farther upward. Jenkins then ascended up two (possibly more) additional rungs and repeated the procedure. As he extended the top section, he heard a noise and jumped off the ladder. The ladder had struck an overhead line later identified as an uninsulated 7,600 volt distribution line, which was approximately nine feet lower than the roof overhang. Tragically, Campbell was very seriously injured as a result of the ladder contacting the distribution line.

On November 19, 1987, appellant filed this action against BG & E in the Circuit Court for Baltimore City. In his Complaint, appellant alleged that he was injured when a forty-foot ladder he helped raise contacted an overhead electrical line, and that the injuries he sustained had been caused by the negligence of BG & E. ⁴ BG & E countered that Campbell was barred from recovering due to his own contributory negligence. In addition, BG & E filed a Third-Party Complaint against appellant's co-workers Mark Jenkins, and his employer, William Sieglein, t/a Sieglein Roofing and Siding Company, alleging that the negligence of Jenkins and Sieglein had caused the electrical contact accident.

In the aftermath of a two-week trial (Friedman, J., presiding), the jury rendered its verdict in response to questions presented in a special verdict sheet. It found negligence on the part of BG & E and Sieglein, no negligence by Jenkins ⁵ and no contributory negligence or assumption of risk by Campbell. The jury awarded Campbell $4,850,000 in damages. The trial court then dismissed the jurors and, treating BG & E's earlier Motion for Judgment (upon which it had reserved ruling) as a Motion for Judgment NOV, ruled that appellant was contributorily negligent as a matter of law and granted BG & E's Motion for Judgment NOV.

Campbell appeals from the court's granting of the Motion for Judgment NOV. BG & E cross-appeals, arguing that

should this court reverse the trial court's granting of the Motion for Judgment NOV, we should then further hold that the trial court erred in instructing the jury and should have given BG & E's proposed instructions on contributory negligence and assumption of the risk. Sieglein argues on appeal that the trial court erred in denying Sieglein's motions to dismiss and for summary judgment and in denying Sieglein's Motion in Limine.

QUESTIONS PRESENTED

Several issues, presented by three of the parties to the litigation, are now before this court, namely:

1. Whether the trial court erred in finding contributory negligence as a matter of law and granting BG & E's Motion for Judgment NOV.

2. Whether the trial court erred in refusing to instruct the jury on comparative negligence.

3. Whether the trial court erred in not instructing the jury on the issues of contributory negligence and assumption of the risk as requested by BG & E.

4. Whether the trial court erred in denying Sieglein's motion to dismiss and motion for summary judgment.

5. Whether the trial court erred in denying Sieglein's Motion in Limine.

ANALYSIS

1. Judgment NOV based upon Campbell's Contributory Negligence

Ordinarily, the question of whether the plaintiff has been contributorily negligent is for the jury, not the judge, to decide. Diffendal v. Kash and Karry Serv. Corp., 74 Md.App. 170, 536 A.2d 1175 (1988). For example, in Potomac Edison Co. v. State, 168 Md. 156, 177 A. 163 (1935), and State v. Potomac Edison Co., 166 Md. 138, 170 A. 568 (1934), the issue of contributory negligence was held to be properly left for determination by the trier of facts because the evidence permitted a reasonable conclusion that the decedent neither knew nor should have known that the wire was dangerous.

The trial court may, however, take the issue of contributory negligence from the jury and rule that there was contributory negligence as a matter of law when the undisputed facts of the case support such a finding as a matter of law. Le Vonas v. Acme Paper Board Co., 184 Md. 16, 40 A.2d 43 (1944).

In considering a Motion for Judgment NOV, a trial judge must consider all evidence and inferences in the light most favorable to the party against whom the motion is made. Md.Rule 2-519(b). On appeal, we must likewise assume the truth of all credible evidence and all inferences of fact reasonably deducible from it tending to sustain appellant's contentions. If, in doing so, we find any legally relevant and competent evidence, however slight, from which the jury could rationally have found in Campbell's favor, we must reverse the Judgment NOV. Franklin v. Gupta, 81 Md.App....