Furman v. Rural Elec. Co., 93-13

• Decision Date: 18 February 1994
• Docket Number: No. 93-13,93-13
• Citation: 869 P.2d 136
• Parties: Betty Joann FURMAN, as the personal representative of the Estate of Howard G. Furman, deceased, Appellant (Plaintiff), v. RURAL ELECTRIC COMPANY, a Wyoming corporation, Appellee (Defendant).
• Court: Wyoming Supreme Court

Page 136

869 P.2d 136

Betty Joann FURMAN, as the personal representative of the Estate of Howard G. Furman, deceased, Appellant (Plaintiff), v. RURAL ELECTRIC COMPANY, a Wyoming corporation, Appellee (Defendant).

No. 93-13.

Supreme Court of Wyoming.

Feb. 18, 1994.

Jack Gage and Robert T. Moxley, Cheyenne, for appellant.

Bruce A. Salzburg of Herschler, Freudenthal, Salzburg, Bonds & Rideout, P.C., Cheyenne, for appellee.

Before MACY, C.J., and THOMAS, CARDINE, GOLDEN and TAYLOR, JJ.

GOLDEN, Justice.

This appeal arises from a wrongful death suit against appellee Rural Electric Company (REC). Appellant Betty Joann Furman (Furman) alleged negligent construction and maintenance of a high voltage power line caused the death of her son Howard Furman (decedent). Decedent was electrocuted when the aluminum surveying rod he was using contacted a high voltage power line. The jury returned a verdict finding REC zero percent at fault. Furman appeals, asserting that the trial court erred by admitting a toxicology report showing that decedent used marijuana and in instructing the jury.

We affirm.

Appellant states the issues as:

I. Was it an error of law or abuse of discretion to admit legally unreliable defense testimony which falsely implied that the decedent was under the influence of marijuana and amphetamines at the time of the incident leading to his death?

II. Was it an error of law to instruct the jury that the decedent's employer under the circumstances of the case had a duty to prevent the incident which took decedent's life?

III. Was it an error of law for the trial court to refuse jury instructions, tendered by the plaintiff, which defined the defendant's duty of care as a higher duty, commensurate with the ultrahazardous activity involved?

IV. Were the jury instructions cumulatively unfair, prejudicial to the plaintiff, and erroneous, which minimized the defendant's duty and over-emphasized the decedent's duty for self-preservation?

FACTS

Initially, we address appellant's violations of our rules of appellate procedure and determine whether appellant's case can be reviewed by this court. See State, Game & Fish Comm'n v. Thornock, 851 P.2d 1300, 1304 (Wyo.1993). Appellant's first violation was a brief submitted by counsel which did not contain a statement of facts. The Wyoming Rules of Appellate Procedure require that the brief of appellant shall contain "a statement of the facts relevant to the issues presented for review with appropriate references to documents listed in the index of the transmitted record." WYO.R.APP.P. 7.01(e)(2). A failure to comply with the rules of appellate procedure is ground for such action as this court deems appropriate, "including but not limited to: citation of counsel or a party for contempt; refusal to consider the offending party's contentions; assessment of costs; dismissal; or affirmance." WYO.R.APP.P. 1.03.

Counsel is admonished to comply with appellate rules; however, the facts in this record are straightforward and appellant's violation of the rules did not detract from our review. We therefore have proceeded to consider appellant's issues. Thornock, 851 P.2d at 1304.

Appellant's second violation was a reply brief submitted by counsel which repeated its principal brief. A reply brief is "limited to those new issues and arguments raised by the brief of appellee." WYO.R.APP.P. 7.03. Because appellant's reply brief stated that it would "emphasize again" and "reexamine," it was disregarded by this court.

On August 13, 1990, Howard Furman (decedent) was electrocuted when an aluminum survey rod he was handling contacted a high voltage power line owned by REC. The decedent was working as part of a summer survey crew for the Wyoming Highway Department (Highway Department). On the morning of his death, the decedent's crew was surveying near the intersection of Campstool Road and Interstate 80, about five miles east of Cheyenne, Wyoming. Decedent was to mark survey monuments with a twenty-five foot, telescoping aluminum rod with a prism placed on top, while the rest of the crew would aim a geodimeter at the elevated prism and record its location. The twenty-five foot rod was necessary because the other crew members' view of the monuments was blocked by a difference in elevation and an intervening highway overpass. After marking and recording the location of one monument, the decedent, working alone, moved to a second monument which was located underneath a 7,200 volt power line.

At this second monument, the decedent somehow contacted the power line with the extended prism pole. No one witnessed the accident. The crew went to the decedent only after being unable to contact him on their two-way radios. When they arrived, they found the decedent lying in the field next to the monument.

A warning sticker on the aluminum rod stated that it was not to be used during electrical storms or near electrical lines. The decedent had demonstrated an awareness of the danger presented by use of the rod because he had previously refused to use it during a threatening thunderstorm. Decedent had been trained about other existing methods which could have been used to locate this monument and did not require use of the aluminum pole. Also, the Highway Department's safety policy required certain safety measures before use of the rod around electrical power sources.

The monument and the REC-owned power lines above it were located next to the entrance to eastbound Interstate 80 from Campstool Road but were on the outside of the Interstate's control-of-access fence. REC's power line was, at the time and place of contact, somewhere between eighteen feet, one and one-half inches and eighteen feet, two and one-quarter inches above the ground. Because the pole was dismantled after decedent was found and, before measurement of its length at the time of the accident, an investigator reconstructed the pole's length based upon burn marks. The burn marks indicated that the pole's length at the time of contact was twenty feet, seven inches.

The National Electric Safety Code (NESC) is a document created to establish national standards for the construction, installation and maintenance of electricity. WYO.STAT. § 37-3-114 (1988) requires the Public Service Commission to "adopt * * * the provisions of the current edition of the National Electric Safety Code * * *." It was undisputed that the 1973 edition of the NESC applied to these wires and that this 7,200 volt line was hanging one foot below the 1973 NESC minimum clearance standard of nineteen feet. REC's expert testified that even if the wire had been at the 1973 NESC height of nineteen feet, the rod and prism, being extended to twenty feet, seven inches, would still have contacted the wire.

REC's chief engineer testified concerning the actual installation of the wire contacted by the decedent. He stated that the installation designs called for the wire to clear the ground by twenty-three feet. He could not state why the wire was five feet below that design height at the time decedent contacted it, although he gave three possible explanations, including improper installation. If the line had been installed at the height of twenty-three feet as designed, decedent's survey rod, which was extended to a height of twenty feet and seven inches at the time of the accident, would not have come in contact with the power line.

An autopsy performed on the decedent revealed the presence of cannabinoids, the active ingredients in marijuana, and phenylpropanolamine, a stimulant found in over-the-counter cold medicines. The autopsy and toxicology report did not reveal when the decedent had been exposed to marijuana or how he was exposed to it. This information was admitted into evidence over Furman's objection.

On October 29, 1992, a jury returned a verdict finding REC zero percent at fault, attributing thirty percent of the fault to decedent and seventy percent to the Highway Department. Furman appeals from this verdict.

DISCUSSION

A. Admissibility of Toxicologist's Report

Furman contends that the district court abused its discretion when it admitted a toxicology report which offered little probative value and was substantially outweighed by its unfair prejudicial effect. Furman also contends there was inadequate foundation for the admission of the report.

The report was performed as part of decedent's autopsy and showed the presence of amphetamines and cannabinoids (marijuana) in the decedent's urine at the time of his death. The admitted evidence included the toxicology report and testimony from a Cheyenne pathologist describing the amphetamine class as actually phenylpropanolamine, a common cold medicine ingredient found in Dimetapp. Cross-examination revealed that the pathologist could only determine the drugs were present, but could not state an opinion whether decedent was under the influence of either at the time of his death.

Questions of admissibility of evidence are within the sound discretion of the trial court, and its decisions will not be overturned absent a clear abuse of discretion. Buckles v. State, 830 P.2d 702, 705 (Wyo.1992). The trial court did not abuse its discretion in this case because the toxicology report was relevant as a possible explanation of why decedent raised the pole into the high voltage line. Evidence is relevant if it tends to make any fact of consequence more or less probable than it would be without that evidence. WYO.R.EVID. 401; Buckles, 830 P.2d at 706. All relevant evidence is admissible, except as otherwise provided by statute, by these rules, or by other rules prescribed by the Supreme Court. Evidence which is not relevant is not admissible. WYO.R.EVID. 402; Buckles, 830 P.2d at 706.

The issue was why decedent disregarded his own knowledge, training, and the warning on the pole and raised it into the high voltage line. Furman had offered an explanation through the testimony of a "human factors engineer"...