Ferriss v. Chugach Elec. Ass'n Inc.

• Decision Date: 17 December 1976
• Docket Number: No. 2323,2323
• Citation: 557 P.2d 763
• Parties: James W. FERRISS, Appellant, v. CHUGACH ELECTRIC ASSOCIATION, INC., a corporation, and Texaco, Inc., a corporation, Appellees.
• Court: Alaska Supreme Court

Page 763

557 P.2d 763

James W. FERRISS, Appellant, v. CHUGACH ELECTRIC ASSOCIATION, INC., a corporation, and Texaco, Inc., a corporation, Appellees.

No. 2323.

Supreme Court of Alaska.

Dec. 17, 1976.

James K. Tallman, Anchorage, for appellant.

Kenneth P. Jacobus, Anchorage, for appellee Texaco.

Timothy M. Stone, Anchorage, for appellee Chugach Elec.

Before BOOCHEVER, C. J., and RABINOWITZ, CONNOR, ERWIN and BURKE, JJ.

OPINION

BURKE, Justice.

This is an appeal from the trial court's granting of motions for directed verdicts in favor of both defendants in an action for personal injuries. The plaintiff, James W. Ferriss, was injured on November 3, 1970, when a piece of angle iron he was holding came into contact with a high voltage age electrical power line. Ferriss was employed by Rotta Sheet Metal Works, Inc. (Rotta). Rotta was a contractor engaged by Defendant Texaco, Inc. (Texaco), to install metal canopies above gas pumps at Texaco service stations throughout Alaska. The accident occurred while such a canopy was being constructed at the Texaco station located at the intersection of International Airport Road and the Old Seward Highway, in Anchorage. At the time of his injury, Ferriss was standing atop a 14-foot, 3-inch canopy and was holding a length of angle iron.

The power lines which passed over the newly constructed canopy consisted of a four wire system, one of which was effectively grounded. The other three 'phase wires' carried 7,200 volts potential between each wire and the ground, and the potential between any two of the 'phase wires' was over 12,000 volts. The wires were not insulated. The authority to run the high voltage lines across the Texaco service station lot had been acquired by defendant Chugach Electric Association, Inc., (CEA), owner of the lines, by an easement. The lines had been installed on January 21, 1966, four years prior to the construction of the canopy and the accident which is the subject matter of this case.

Ferriss was apparently aware of the existence of the wires, although he attached little significance to them. Whether Ferriss had been warned about the potential danger posed by the power lines is disputed; he maintains that no such warning was issued to him. About 3:00 P.M. on November 3, 1970, while atop the partially completed canopy, Ferriss swung a piece of angle iron he was holding into contact with the power lines above him. Ferriss was hospitalized for injuries suffered as a result of electric shock.

Ferriss filed his complaint against Texaco and CEA in superior court. The case was removed to the United States District Court for the District of Alaska on the motion of defendant Texaco. Subsequently, on motion of the plaintiff, the case was remanded to the superior court.

In the superior court the case eventually came on for trial by jury. At the close of all evidence the trial court directed verdicts in favor of both defendants and judgments were entered accordingly. Ferriss has appealed seeking reversal of the two judgments entered below. He contends that the trial court erred in granting the defendants' motions for directed verdicts.

In reviewing the trial court's rulings in favor of the defendants, we must view the evidence presented in the light most favorable to the party against whom the motions for directed verdicts were made and we must afford him all inferences which the evidence fairly supports. ¹

As we recently stated in Bachner v. Rich, 554 P.2d 430 (Alaska 1976):

The moving party is entitled to a directed verdict only if it can be said that fairminded jurors in the exercise of reasonable judgment could reach but one conclusion on the issue in controversy. If such reasonable persons could reach differing conclusions, a jury question or question of fact exists, and the motion for a directed verdict should be denied. ²

If there were no such question posed by the evidence, then the defendants were entitled to judgment on the law and the granting of their motions for directed verdicts against the plaintiff was proper. Because liability against each defendant is premised on distinct and separable legal theories, the propriety of the trial court's granting of each of the motions for a directed verdict will be reviewed individually.

DIRECTED VERDICT IN FAVOR OF DEFENDANT CHUGACH ELECTRIC

ASSOCIATION, INC.

Ferriss contends that the trial court erred in ruling that the evidence presented was insufficient, as a matter of law, to hold CEA liable for his injuries. To merit a reversal of the judgments entered below, he must persuade us that reasonable people could have drawn different inferences and conclusions from the evidence presented at trial. Ferriss has advanced three theories of liability against CEA on which, he claims, there was sufficient evidence presented to submit the case to the jury. These theories involve two sections of the National Electrical Safety Code ³ (the Code) and the standard of due care required of carriers of electrical power.

Section 234C of the Code. ⁴ Section 234C of the Code requires an eightfoot minimum vertical clearance between any 'structure' and any supply conductor having a voltage of between 300 and 8700 volts. First, Ferriss contends that since the construction of the canopy reduced the clearance between CEA's power lines and the nearest 'structure' to less than the required eight-foot minimum distance, the maintenance of the wires at their previous elevation constituted a violation of this section of the Code. Ferriss then borrows language from the Restatement of Torts (Second) and concludes that this violation of the Code renders CEA strictly liable for his injuries.

Admittedly, Comment b to Section 424 of the Restatement of Torts (Second) states that '. . . if the duty imposed . . . (by statute or regulation) . . . is an absolute one, the employer is subject to liability for the failure of the contractor to provide the required safeguard or protection. . . .' But, a close examination of appellant's argument quickly reveals that he has misapplied his section of the Restatement in constructing his argument. Comment b to Section 424 is directed towards employers and independent contractors, and failure by contractors to comply with the mandatory requirements of safety statutes or regulations for the benefit of their employees. Contrary to appellant's contention, the relationship between him and CEA, if there is one, is not the type to which this section of the Restatement is addressed. Thus, Section 234 C of the Code and Section 424 of the Restatement of Torts (Second) provide no legal basis for submitting the issue of CEA's strict liability for Ferriss' injuries to the jury.

Section 213A of the Code. ⁵ This section of the Code requires that electrical lines and equipment be systematically inspected from time to time by the person responsible for the installation. Ferriss contends that there was sufficient evidence of a violation of this section by CEA to warrant the submission of the question of CEA's liability for his injuries to the jury. We disagree. The uncontroverted evidence admitted at trial clearly indicates that the canopy had been installed just prior to the day on which Ferriss was injured. In fact, the canopy had risen to a height which rendered the distance from the top of the canopy to the wires in violation of the Code on the day before he was injured.

While Section 213A of the Code does require systematic inspections by owners or operators of electrical installations, such inspections are required, in the words of the Code, only 'from time to time'. There was no evidence presented at trial from which a reasonable jury could have concluded that a systematic inspection of its installations, by CEA, from time to time, would have advised the power company of the dangerous condition created by the construction of the canopy in close proximity to its wires. Thus, the trial court was correct in ruling that there was no question of fact to be decided by the jury with respect to CEA's liability, based on Section 213 A of the Code, for Ferriss' injuries.

Breach of Duty. Finally, Ferriss for his injuries should have been submitted to the jury for a determination of whether the company breached its common law duty of due care to him. In granting the defendant's directed verdict against Ferriss, the trial court ruled that there was insufficient evidence presented from which a reasonable jury could have concluded that CEA knew or should have known that its wires posed a hazard to persons such as Ferriss.

This court has addressed the question of the duty owed by providers of electrical energy with respect to its power lines and installations before. The standard of care required of a person maintaining wires carrying electricity in the State of Alaska was defined in Larman v. Kodiak Electric Association, 514 P.2d 1275 (Alaska 1973). There we adopted the standard which had been previously enunciated by the California Supreme Cour in Polk v. City of Los Angeles, 26 Cal.2d 519, 159 P.2d 931 (1945). We stated in Larman the following:

On the subject of negligence the standard of care is, that one maintaining wires carrying electricity is required to exercise the care that a person of ordinary prudence would exercise under the circumstances. Among the circumstances are the well known dangerous character of electricity and the inherent risk of injury to persons or property if it escapes. Hence, the care used must be commensurate with and proportionate to that danger.

Specific application of that standard requires that the wires carrying electricity must be carefully and properly insulated lated by those maintaining them at all places where there is a reasonable probability of injury to persons or property therefrom. ⁶

Thus, the issue is whether CEA breached the standard of care adopted by this court in Larman by failing to insulate its power lines over the Texaco gas station. We view this issue as...