Fetty v. Seward County Rural Public Power Dist.

• Court: Nebraska Supreme Court
• Writing for the Court: HASTINGS; CAPORALE; WHITE
• Citation: Fetty v. Seward County Rural Public Power Dist., 471 N.W.2d 756, 238 Neb. 672 (Neb. 1991)
• Decision Date: 19 July 1991
• Docket Number: No. 89-362,89-362
• Parties: Walter FETTY, Appellee, v. SEWARD COUNTY RURAL PUBLIC POWER DISTRICT, Appellant.

Page 756

471 N.W.2d 756

238 Neb. 672

Walter FETTY, Appellee, v. SEWARD COUNTY RURAL PUBLIC POWER DISTRICT, Appellant.

No. 89-362.

Supreme Court of Nebraska.

July 19, 1991.

Syllabus by the Court

1. Negligence. The determination of contributory negligence is generally a matter for the trier of fact.

2. Negligence: Words and Phrases. Contributory negligence is conduct for which a plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury and which, concurring and cooperating with actionable negligence on the part of the defendant, contributes to the injury.

3. Negligence. An actor is contributorily negligent if (1) he or she fails to protect himself or herself from injury, (2) his or her conduct concurs and cooperates with the defendant's actionable negligence, and (3) his or her conduct contributes to his or her injuries as a proximate cause.

Steven E. Guenzel, of Barlow, Johnson, DeMars & Flodman, Lincoln, for appellant.

John M. Guthery, of Perry, Guthery, Haase & Gessford, P.C., and Thomas Dawson, Lincoln, for appellee.

HASTINGS, C.J., BOSLAUGH, WHITE, CAPORALE, SHANAHAN, GRANT, and FAHRNBRUCH, JJ.

CAPORALE, Justice.

In this political subdivisions tort claims action, the defendant-appellant, Seward County Rural Public Power District, challenges the judgment obtained against it and in favor of the plaintiff-appellee, Walter Fetty. The power district asserts the trial court erred in, among other things, failing to find that Fetty was contributorily negligent in a degree sufficient to bar his recovery as a matter of law. The record sustaining that assignment of error, we reverse and remand with the direction that the cause be dismissed, without consideration of the power district's other claimed errors.

In 1979, Fetty and his wife purchased a going gasoline and sundries retail business in Seward County, which they thereafter expanded by adding camping facilities. As part of the addition, a second electrical service was provided by the power district to supplement the service it originally provided in 1966. The electrically energized wires for both services originated at a transformer pole, spanned to a support pole, and thence spanned to the west side of the metal building from which the business was conducted, at which point the services were connected to wires exiting conduits leading to two separate meters affixed to the building.

Each service consisted of two insulated energized wires, that is, wires carrying 120 volts of electrical current, wrapped around one uninsulated, nonenergized ground wire. Among other things, the ground wire provided support for the energized wires. The two services were affixed to the building adjacent to one another at a point more than 11 feet above ground and between the conduits. From this building connection point, the energized wires of each service, no longer wrapped around the ground wire, looped away from each other and were spliced to the conduit wires, which were insulated. Each of the splices connecting the energized wires to the conduit wires was encased in an aluminum connector, which appears to have been not more than 6 inches in length, thereby energizing the conduit wires. The encased wire splices on the 1979 service were insulated with tape which had deteriorated. The encased splices on the 1966 service were not insulated at all. There is testimony that because of oxidation, an encasing connector "could very well look like an insulator to an average person that doesn't know the difference."

During the afternoon of May 8, 1986, while on an aluminum ladder painting between the conduits, which apparently were several feet apart, Fetty, then 61 years old, suffered an electrical shock when his left hand came into contact with one of the splices on the 1966 service. The charge knocked Fetty from his position near the top of the ladder, which was stationed against the left conduit, to the ground, as the result of which he sustained injury.

Fetty is a college graduate, knew that electrical powerlines are dangerous and ought not be touched, and exhibited familiarity with the process of arc welding, which uses electricity to heat and melt metals. He also knew that aluminum conducts electricity. He, nonetheless, being aware of the energized wires and never having noticed the connectors, assumed that it would be safe to work around the wires.

The record reveals that one coming into contact with an electrically energized wire would not suffer a shock unless he or she also came into contact with a grounding source. It is for that reason that employees of the power district use fiberglass ladders, which will normally not carry a current.

For purposes of our analysis, we assume, without deciding, that the power district was negligent in failing to insulate the connectors when they were installed and in thereafter failing to properly inspect and maintain them. The question is whether the power district is correct in claiming that in comparing its negligence to that of Fetty, Fetty was contributorily negligent in a degree sufficient to bar his recovery as a matter of law.

Neb.Rev.Stat. § 25-21,185 (Reissue 1989) provides:

In all actions brought to recover damages for injuries to a person or to his property caused by the negligence ... of another, the fact that the plaintiff may have been guilty of contributory negligence shall not bar a recovery when the contributory negligence of the plaintiff was slight and the negligence ... of the defendant was gross in comparison, but the contributory negligence of the plaintiff shall be considered by the jury in the mitigation of damages in proportion to the amount of contributory negligence attributable to the plaintiff; and all questions of negligence ... and contributory negligence shall be for the jury.

We have said:

Contributory negligence is conduct for which a plaintiff is responsible, amounting to a breach of the duty which the law imposes upon persons to protect themselves from injury and which, concurring and cooperating with actionable negligence on the part of the defendant, contributes to the...