Ferguson v. Northern States Power Co.

• Decision Date: 16 January 1976
• Docket Number: No. 44671,44671
• Citation: 239 N.W.2d 190,307 Minn. 26
• Parties: Scott FERGUSON, a Minor, by David L. Ferguson, His Father and Natural Guardian, et al., Appellants, v. NORTHERN STATES POWER COMPANY, Respondent.
• Court: Minnesota Supreme Court

Page 190

239 N.W.2d 190

307 Minn. 26

Scott FERGUSON, a Minor, by David L. Ferguson, His Father and Natural Guardian, et al., Appellants, v. NORTHERN STATES POWER COMPANY, Respondent.

No. 44671.

Supreme Court of Minnesota.

Jan. 16, 1976.

Syllabus by the Court

1. Before a person injured upon coming in contact with high-voltage transmission lines while trimming trees can be found guilty of contributory negligence, it must be established that the conduct was negligent in the face of a known danger.

2. In apportioning causal negligence under our comparative negligence statute, the apportionment must be made among all parties who have been determined by the jury to be causally negligent.

3. In the event of a five-sixths verdict, those jurors who dissent from a finding of causal negligence on the part of one or more of the parties are disqualified from participating in the apportionment of causal negligence.

4. Appeal by defense counsel to the prejudice and passions of the jury in closing argument, when coupled with other errors, is ground for new trial.

Rischmiller & Wasche and Robert Wm. Rischmiller, Minneapolis, for appellants.

Gordon W. Shumaker, St. Paul, and Joseph T. Burkard, Minneapolis, for Minnesota Trial Lawyers Assn., amicus curiae, seeking reversal.

Pollock, Pollock & Fay, Edward I. Pollock, Los Angeles, Cal., and Edward J. Kionka, Belleville, Ill., for The Association of Trial Lawyers of America, amicus curiae, seeking reversal.

Meagher, Geer, Markham, Anderson, Adamson, Flaskamp & Brennan, O. C. Adamson II, Mary Jeanne Coyne and R. Gregory Stephens, Minneapolis, for respondent.

Lindquist & Vennum, Maclay R. Hyde, and Harry C. Piper III, Minneapolis, for Minnesota Municipal Utilities Assn. Inc., amicus curiae, seeking affirmance.

LeVander, Gillen, Miller & Magnuson and Harold LeVander, Jr., So. St. Paul, for Minnesota Assn. of Electric Cooperatives, amicus curiae, seeking affirmance.

Field, Arvesen, Donoho, Lundeen & Hoff and Cyrus A. Field, Fergus Falls, for Otter Tail Power Co.; Springer, Carstedt & Kurlander and William D. Carstedt, Chicago, Ill., for Interstate Power Co.; and Hanft, Fride, O'Brien & Harries and William P. O'Brien, Duluth, for Minnesota Power & Light Co., amici curiae, seeking affirmance.

Heard before SHERAN, C.J., and OTIS, KELLY and TODD, JJ., and reheard and decided by the court en banc.

YETKA, Justice.

This appeal arises out of an action in Hennepin County District Court to recover damages for injuries sustained by plaintiff Scott Ferguson as a result of coming in contact with a tree branch which fell upon an uninsulated 8,000-volt power line while Scott was trimming trees in the backyard of his suburban-Minneapolis home, and consequential damages sustained by his father, plaintiff David L. Ferguson. The power line was owned and maintained by the defendant, Northern States Power Company (NSP). The case was tried before a jury, which returned a special verdict finding all parties causally negligent and assessing plaintiffs' negligence in excess of 50 percent. Judgment was ordered for defendant, and plaintiffs' motion for judgment n.o.v. or a new trial was denied. We reverse.

The 8,000-volt transmission line was one of four power lines located at the rear of plaintiffs' residential lot. It was strung approximately 5 to 7 feet above the other lines, which were service lines which carried ordinary household current, and a total distance of 28 feet above the ground at the point where the accident occurred. The photographs admitted in evidence show that the power lines crossing plaintiffs' backyard pass through several trees.

The lines were installed in September 1955. Although the poles from which these lines are hung were located within the 5-foot utility easement at the rear of plaintiffs' lot, the lines themselves actually encroach upon plaintiffs' lot up to a distance of 5 feet at the point where the accident occurred.

In 1964 plaintiff David Ferguson planted seven poplar trees along the eastern edge of his lot. One of these trees was located 2 1/2 feet north of the encroaching power lines. As these rapidly-growing trees matured, plaintiffs cut them back several times prior to the accident.

In the spring of 1971 David Ferguson determined that the poplar trees required trimming in order to assure proper growth. At that time the tree nearest the power lines was approximately 35 to 40 feet tall. After receiving a cost estimate of $150 from a professional tree trimmer, plaintiffs decided to do the job themselves. At no time prior to the accident did plaintiffs contact NSP regarding the proximity of the power lines to the poplar tree.

In trimming the poplar tree nearest the lines, plaintiffs propped a 24-foot aluminum extension ladder against the tree, secured at the top with a piece of rope. Before climbing the ladder, Scott and his father discussed the overhead electric wires:

'Q. * * * I will ask you what did you say to Scott?

'A. I said to Scott, 'The lower wire I am sure is the telephone wire, and that is no concern. The next three wires are like those that we work around when we paint the house. I am sure they are insulated, but stay away from them anyway. The top wire, I don't know what that is. It looks like it may be a support wire, but you will be below that regardless, so you don't need to worry about it."

On cross-examination David Ferguson again testified that he did not know the nature of the primary transmission line:

'Q. And of course you knew that there was electricity in some of these wires?

'A. I knew that there was electricity in the three wires.

'Q. How did you know there was electricity in the three wires?

'A. Because I am accustomed to seeing those coming into my house, working around them when I paint the house. I know that those are the wires that feed the electricity to my house.

'Q. You did not know what the top wire carried, if anything?

'A. No.

'Q. * * * Counsel asked if you saw any warning signs on any of these poles. You did not, did you?

'A. No, I did not.

'Q. You didn't need any warning signs on those poles to tell you that there was electricity in the three lines, did you?

'A. No, because I am accustomed to seeing warning signs of poles where there is high voltage.'

It is clear from that record that while Scott and his father were aware that three of the lines carried household current, they were not aware that the uppermost line transmitted 8,000 volts and was uninsulated.

Scott climbed the ladder to a height of 21 feet and began sawing branches. No consideration was given to the danger of branches falling upon the wires, but rather where and how the branches fell to the ground was left to chance. The record does not disclose exactly how Scott came in contact with the electric current. However, it appears that the accident occurred as a result of a falling branch becoming caught on the 8,000-volt primary line. ¹

The case was submitted to the jury on two theories of liability--trespass and negligence. The jury rejected trespass liability, apparently on the theory that plaintiffs had impliedly consented to the encroachment. Scott and his father were both found to be causally negligent by unanimous verdict of the jury, but only 10 of the 12 members of the jury found NSP to be causally negligent. Separate questions were submitted to the jury for apportioning causal negligence, first, as between David Ferguson and NSP and, second, as between Scott Ferguson and NSP. The jury's answers were unanimous. It found David Ferguson 75 percent causally negligent and NSP 25 percent, and Scott Ferguson 70 percent and NSP 30 percent. The jury found that neither Scott nor his father had assumed the risk. Damages for David Ferguson for medical expenses were $28,952.89, an amount agreed to by the parties, and for Scott Ferguson $250,000, a finding of five-sixths of the jury.

The decision of this case has been unusually troublesome for the court. The difficulty, we believe, lies in the enormity of the risk involved in the transmission of high-voltage electricity through residential neighborhoods, and the apparent lack of awareness of the extent of the danger on the part of those living there. The following comment of the Utah Supreme Court portrays the problem:

'A high tension transmission wire is one of the most dangerous things known to man. Not only is the current deadly, but the danger is hidden away in an innocent-looking wire ready at all times to kill or injure anyone who touches it or comes too near to it. For the average citizen there is no way of knowing whether the wire is harmless or lethal until it is too late to do anything about if.' Brigham v. Moon Lake Elec. Assn., 24 Utah 2d 292, 294, 470 P.2d 393, 395 (1970).

We considered the risk so unusual that we requested further argument, both from the parties and amici curiae, on whether the maintenance of an uninsulated high-voltage transmission line constitutes an 'abnormally dangerous activity,' thereby subjecting the owner of the line to strict liability for harm caused another as a result of coming in contact with the line. ² When the proposed Restatement sections quoted in footnote 2 below are applied to the circumstances of this case, a convincing argument can be made for holding the utility strictly liable. Moreover, spreading the cost of serious injury over all consumers of electricity is equitably more appealing. However, the court is persuaded by the amicus briefs which detail the severe economic consequences which may be sustained by the many small electric utilities in the state by the abrupt imposition of such a rule. We therefore decline to decide this issue at this time; however, we do call this matter to the attention of the legislature which is better equipped to resolve economic problems of this nature.

While we decline to impose strict liability in this case, we nevertheless are unable to affirm the judgment of the trial court. The problem lies in the...