City of Fountain v. Gast

• Decision Date: 02 October 1995
• Citation: 904 P.2d 478
• Parties: CITY OF FOUNTAIN, Petitioner/Cross-Respondent, v. Charles GAST, Respondent/Cross-Petitioner. NO. 93SC534.
• Court: Colorado Supreme Court

Page 478

904 P.2d 478

CITY OF FOUNTAIN, Petitioner/Cross-Respondent, v. Charles GAST, Respondent/Cross-Petitioner.

NO. 93SC534.

Supreme Court of Colorado,

En Banc.

Oct. 2, 1995.

As Modified on Denial of Rehearing

Nov. 6, 1995.

Hall & Evans, L.L.C., Alan Epstein, Denver, William F. Eggert, Denver, for Petitioner/Cross-Respondent.

Melat, Pressman, Ezell & Higbie, Glenn Pressman, Alan Higbie, Robert J. Frank, Colorado Springs, for Respondent/Cross-Petitioner.

Justice MULLARKEY delivered the Opinion of the Court.

We granted certiorari to consider a case brought against the City of Fountain (Fountain) by Charles Gast who was injured when an irrigation pipe he was holding came in contact with an overhead electric transmission line owned and operated by Fountain. Gast v. City of Fountain, 870 P.2d 506 (Colo.App.1993). The issues before us are whether Fountain, in its capacity as an electric utility, owed Gast a duty to warn of the danger posed by storing irrigation pipe under a transmission line, and whether the court of appeals erred in holding that the statutory duty to take reasonable measures to protect persons on the ground excluded raising power lines to a safe height.

On an appeal by Fountain, the court of appeals reversed the jury verdict entered in favor of Gast and remanded the case for a new trial. The court found that Gast asserted Fountain was negligent in two respects: Fountain's failure to elevate the height of the transmission line and its failure to warn customers of the dangers of contacting transmission lines with irrigation pipe. Id. at 508. The court addressed these questions of duty as matters of law and concluded that Fountain had a duty to warn but did not have a duty to elevate the height of its transmission line. Id. at 508-11.

We reject the court of appeals' analysis. The trial court did not find the two duties of care articulated by the court of appeals. Rather, the trial court provided the jury with instructions based upon: (1) the highest degree of care to protect the public from the dangers of electricity, see Yampa Valley Elec. Ass'n, Inc. v. Telecky, 862 P.2d 252, 254 (Colo.1993) (describing the standard of care applicable to an electric utility as " 'the highest degree of care which skill and foresight can attain consistent with the practical conduct of its business under the known methods and the present state of the particular art.' ") (quoting Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 376-77, 41 P. 499, 501 (1895)), and (2) compliance with the standards articulated under the National Electrical Safety Code (NESC). Neither a duty to warn nor a duty to elevate line height was imposed on Fountain by the trial court.

Thus, we conclude that the court of appeals erred in setting aside the jury verdict. We reverse and remand the case for further proceedings consistent with this opinion.

I.

Gast, who was then 17 years old, sustained serious burns and neurological injuries in a 1985 accident which occurred when he tilted a 30-foot aluminum irrigation pipe in order to dislodge a rabbit trapped inside. While he was looking down, the pipe came into contact with uninsulated overhead electric transmission lines owned and maintained by Fountain. The resulting electrical shock caused Gast's injuries. Gast filed suit against Fountain claiming that its negligence was the cause of his injuries. Fountain answered, asserting that Gast's own negligence was the sole cause of the accident.

The 7200-volt electric transmission system in question was initially constructed in 1964 by a rural electric association and purchased by Fountain in 1968 or 1969. The system consists of four uninsulated lines strung between two poles at a height of approximately 20 feet. The two poles were 326.3 feet apart, and only one pole was on the Gast property. The lines did not cross the Gast property but rather terminated there. A transformer on the Gast property reduced the voltage to 240 or 480 volts for operation of an irrigation pump and also provided 220 volt service to the family home by way of an underground line.

Gast's father acquired the property in 1976. Since sometime before 1970, three acres of the parcel have been irrigated occasionally by using 30-foot lengths of aluminum irrigation pipe. When not in use, the pipe is stacked and stored on the property.

Gast claimed that Fountain was negligent in failing to recognize and take steps to resolve the hazard posed by the use and storage of irrigation pipe near the electrical lines. Specifically, Gast alleged that Fountain violated certain portions of the NESC in its maintenance of the electrical lines and failed to meet its duty of highest care as an electric utility.

The jury entered a general verdict finding Fountain to be 60% negligent and Gast to be 40% negligent. The court of appeals reversed and remanded the case for a new trial. It held that Fountain had no duty to elevate the electrical lines but did have a duty to warn the property owner of the danger posed by storing pipe under the electrical lines.

II.

Electric power companies which erect and maintain power lines are under a duty to exercise the highest degree of care to protect the public from the dangers of electricity. Federal Ins. Co. v. Public Serv. Co., 194 Colo. 107, 112, 570 P.2d 239, 242 (1977). However, power companies are not liable for occurrences which cannot be reasonably anticipated and are not insurers against all accidents and injuries. Henderson v. Kansas Power & Light Co., 184 Kan. 691, 339 P.2d 702, 706 (1959).

The NESC guidelines outline minimum standards for the industry and can be used as evidence of a utility's compliance with applicable industry standards. Yampa Valley, 862 P.2d at 257. ¹ Compliance with NESC standards does not conclusively establish that the highest degree of care was exercised but is merely one circumstance to be considered in determining the highest degree of skill and care. Id.; Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 591 (Colo.1984).

The relevant jury instructions given in this case provided: ²

12. An electrical utility company transmitting electricity through overhead wires is not required to protect against any and all possible eventualities. Such a requirement would make the utility company an insurer.

The term "insurer" means one who guarantees safety to any one.

13. You are instructed that an electric utility is presumed to possess special knowledge and skill in electricity which it must utilize for protection of its patrons, and that in determining whether the utility has exercised reasonable care and caution the jury must be aware that the required level of care increases as the danger increases.

14. One carrying on an inherently dangerous activity such as the distribution [of electricity] must exercise the highest possible degree of skill, care, caution, diligence and foresight with regard to that activity, according to the best technical, mechanical, and scientific knowledge and methods which are practical and available at the time of the claimed conduct which caused the claimed injury. The failure to do so is negligence.

. . . . .

21. The negligence of the defendant, City of Fountain, is not a cause of any injuries to the plaintiff, Charles Gast, unless injury to a person in the plaintiff's situation was a reasonably foreseeable consequence of that negligence. The exact or precise injury need not have been foreseeable, but it is sufficient if the defendant, with the highest duty of care, under the same or similar circumstances, would have anticipated that injury to a person in the plaintiff's situation might result from the defendant's conduct.

. . . . .

26. At the time of the occurrence in question in this case, the following National Electrical Safety Code provisions were in effect as the law of the State of Colorado:

§ 210--All electric supply and communication lines and equipment shall be of suitable design and construction for the service and conditions under which they are to be operated.

§ 211--All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.

§ 213(A)(2)--Lines and equipment shall be systematically inspected from time to time by the person responsible for the installation.

§ 230(E)--The clearances required by this section shall be maintained at the specified values.

§ 214(A)--To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.

A violation of any of these sections of the National Electrical Safety Code constitutes negligence.

If you find such a violation, you may only consider it if you find that it was the cause of the claimed injuries. ³

These jury instructions properly explained Fountain's duty of care as established by our case law. Initially, the jury was cautioned that Fountain was not an insurer and could not guarantee a customer's safety under any and all circumstances. As an electric utility, Fountain was correctly held to the highest duty of care consistent with the industry's best available knowledge and technology. Various sections of the NESC were cited to the jury as setting forth the minimum standards which Fountain must meet to satisfy its duty of care. Causation instructions were given in both the NESC instruction (number 26) and in a separate instruction (number 21). Because the jury returned a general verdict of negligence against Fountain, we cannot determine whether the jury found that Fountain had violated the minimum standards set forth in the NESC or whether the jury found that Fountain satisfied the NESC standards but nevertheless failed to meet the highest...