Campbell v. ITE Imperial Corp.
| Citation | 107 Wn.2d 807,733 P.2d 969 |
| Decision Date | 12 March 1987 |
| Docket Number | No. 51816-5,51816-5 |
| Parties | , 55 USLW 2518, Prod.Liab.Rep. (CCH) P 11,412 Steven E. CAMPBELL and Candice R. Campbell, husband and wife, Appellants, v. ITE IMPERIAL CORPORATION, Respondent. |
| Court | Washington Supreme Court |
Stafford, Frey & Mertel, John G. Cooper, Marcus B. Nash, Seattle, for appellants.
Lane, Powell, Moss & Miller, Thomas C. Sorenson, John McKay, Seattle, for respondent.
Bertha B. Fitzer, Tacoma, amicus curiae for respondent Washington Ass'n of Defense Counsel.
The principal issue in this case is whether the negligence of appellant's employer in failing to warn of or protect appellant from respondent's allegedly unsafe product constitutes an intervening act legally sufficient to operate as a superseding cause? Under the facts of this case, we hold that the employer's negligence does not constitute a superseding cause, and that the trial court erred in giving a jury instruction on superseding cause.
The facts of this case are largely undisputed. On August 29, 1980, appellant Steve Campbell was working as a wireman with a crew for Snohomish County Public Utility District 1 ("PUD") at the 52nd Street Substation in Everett. The crew had performed certain maintenance upon the substation over a period of 3 days pursuant to a written switching order, under which certain portions of the substation were de-energized to permit the performance of that maintenance.
The crew completed the scheduled maintenance well in advance of the time expected. Accordingly, the crew contacted Systems Dispatch, a central clearing facility that controls all work being done in the field, to advise Systems Dispatch that the crew had completed the original work, and to secure an additional safety clearance to perform further maintenance on the substation. This additional maintenance included the cleaning of the roof bushings which are situated on top of the metal-clad switchgear.
On the day in question, the cleaning of the roof bushings included: (1) the "main bushings" through which electricity normally is conducted, and (2) the "auxiliary bushings" which normally are not used. Paint overspray and grime had accumulated on the auxiliary bushings, and the crew was instructed to wipe them clean with steel wool.
The substation has certain "feeder lines" which emerge from it to supply power to PUD customers. While the crew performed the scheduled maintenance, electrical power was not flowing through the feeder lines, and PUD customers were being provided power from another substation elsewhere in the district. However, a circuit breaker on one of those feeder lines was closed to allow power to be "backfed" from another substation to the 52nd Street substation for purposes of allowing the crew to use various electrical tools to perform their initial maintenance procedures. This back feeding caused both the main bushings and the auxiliary bushings to be energized while the initial maintenance was being performed.
The crew foreman contacted Systems Dispatch to de-energize the back-fed circuit so that the crew could safely clean the roof bushings. Following normal procedures, the foreman--in radio contact with Systems Dispatch--went through the standard procedures to de-energize the substation. This consisted of breaking the particular circuit that supplied the back-fed power to the substation, a procedure performed by Campbell. Following this procedure, Systems Dispatch advised the foreman that the crew could test the lines, install their grounds and proceed with their work.
After the crew tested the lines and installed the grounds, Campbell then proceeded to clean the main bushings. Upon completion of that task, and with the approval of his foreman, Campbell walked down the roof of the metal-clad switchgear to the auxiliary bushings. He reached down with a pad of steel wool in his hand to begin cleaning those bushings, only to be jarred by a high-voltage surge of electricity. Campbell was severely injured.
The auxiliary bushings remained energized after going through the normal shutdown procedures because a design feature connected those bushings to a feeder line at a point beyond the circuit breaker. As a result, the auxiliary bushings remained energized by the "back feeding" from the other substation providing power to customers. Thus, contrary to what the crew--and apparently Systems Dispatch--believed, the opening of the circuit breaker did not de-energize the auxiliary bushings.
The auxiliary bushing connection to the feeder line was obscured from the workmen's view, and the crew had no knowledge that the bushing was connected in this fashion. This unusual wiring configuration was manufactured by the respondent, ITE Imperial, as part of the switchgear equipment, and was installed under its supervision. ITE Imperial failed to provide any warning that the bushings could remain energized from a source outside the substation after normal shut-down procedures were followed. ITE Imperial acknowledged, however, that such a warning would not interfere in any manner with the usage or function of the equipment. Immediately after the incident giving rise to Campbell's injuries, the PUD grounded all auxiliary bushings within the system to prevent any such occurrences in the future.
Campbell contends the pertinent switchgear was not reasonably safe without a warning because the auxiliary bushings on which he was injured are wired to the load side of one of the circuit breakers in the switchgear. The PUD, Campbell's employer, allegedly specified this design when it ordered the equipment from respondent. This fact does not appear in the record because the trial court excluded it by order in limine. The court, however, was advised of this fact, and Campbell did not contradict ITE Imperial's representations to this effect until this appeal.
Campbell commenced this action on theories of strict product liability, negligence and breach of warranty. At trial, Campbell elected to proceed solely on the theory of strict liability in tort. 1 Campbell testified as to the facts of the accident, injuries sustained and economic loss. The parties stipulated to the amount and reasonableness of the medical expenses.
Campbell's experts testified that ITE Imperial's product, incorporating a design configuration with the auxiliary bushings connected beyond the circuit breaker, was not reasonably safe unless accompanied by a warning. They also testified that a circuit breaker or switch between the auxiliary bushing and the connection would render the equipment safer, because back feeding from a power source outside the substation could not occur with that switch or circuit breaker open. They testified that such a configuration was both advisable and feasible from the manufacturer's standpoint. In fact, some of the other PUD switchgear at the time had such a circuit breaker in place. Finally, they testified that the manufacturer should have provided an insulating cap on top of the auxiliary bushing.
At the close of testimony, the trial court instructed the jury that if Campbell's employer, the PUD, was negligent in failing to discover and warn of the defect and take appropriate precautions, and if the PUD's negligence was "so unanticipated that it can be said to fall without the realm of reasonable foreseeability" by the manufacturer, then the PUD's negligence would constitute a superseding cause, thus relieving ITE Imperial of liability. The jury returned a general verdict in favor of respondent.
Thereafter, the trial court denied Campbell's motion for judgment notwithstanding the verdict on the issue of liability and for a new trial on damages only, or, in the alternative, for a new trial. Campbell appealed directly to this court. We reverse and remand for a new trial on liability and damages.
Campbell's primary contention is that ITE Imperial cannot avoid liability for failing to provide an adequate warning on the switchgear by claiming that the PUD should have protected him from the equipment. According to Campbell, the failure of the PUD to prevent his injury is not, as a matter of law, an intervening act that is legally sufficient to operate as a superseding cause. In short, Campbell argues that the trial court should not have instructed the jury on superseding causation.
Section 440 of Restatement (Second) of Torts (1965) defines superseding cause as "an act of a third person ... which by its intervention prevents the actor from being liable for harm to another which his antecedent negligence is a substantial factor in bringing about." In determining whether an intervening act constitutes a superseding cause, the relevant considerations under Restatement (Second) of Torts § 442 (1965) are, inter alia, whether (1) the intervening act created a different type of harm than otherwise would have resulted from the actor's negligence; (2) the intervening act was extraordinary or resulted in extraordinary consequences; (3) the intervening act operated independently of any situation created by the actor's negligence. Accord, Herberg v. Swartz, 89 Wash.2d 916, 927-28, 578 P.2d 17 (1978).
Pursuant to § 447(a) of Restatement (Second) of Torts, even if the intervening act of the third person constitutes negligence, that negligence does not constitute a superseding cause if "the actor at the time of his negligent conduct should have realized that a third person might so act". In fact,
[i]f the likelihood that a third person may act in a particular manner is ... one of the hazards which makes the actor negligent, such an act whether innocent, negligent, intentionally tortious, or criminal does not prevent the actor from being liable for harm caused thereby.
Restatement (Second) of Torts § 449 (1965). See also Restatement (Second) of Torts § 447, Comment on Clause (a) (1965).
In Herberg v. Swartz, supra, the owner of a hotel ridden with numerous fire code...
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