Gast v. City of Fountain

• Decision Date: 01 July 1993
• Docket Number: No. 91CA1673,91CA1673
• Citation: 870 P.2d 506
• Parties: Charles GAST, Plaintiff-Appellee and Cross-Appellant, v. CITY OF FOUNTAIN, Defendant-Appellant and Cross-Appellee. . V
• Court: Colorado Court of Appeals

Page 506

870 P.2d 506

Charles GAST, Plaintiff-Appellee and Cross-Appellant, v. CITY OF FOUNTAIN, Defendant-Appellant and Cross-Appellee.

No. 91CA1673.

Colorado Court of Appeals,

Div. V.

July 1, 1993.

As Modified on Denial of Rehearing

Aug. 5, 1993. ^*

Certiorari Granted (Petitioner and

Cross-Petitioner) April 4, 1994.

Melat, Pressman, Ezell & Higbie, Alan Higbie, Colorado Springs, for plaintiff-appellee and cross-appellant.

Hall & Evans, Alan Epstein, Denver, for defendant-appellant and cross-appellee.

Opinion by Judge RULAND.

Defendant, City of Fountain, appeals from a judgment entered upon a jury verdict in favor of plaintiff, Charles Gast. Plaintiff cross-appeals from the trial court's order regarding prejudgment interest. We reverse and remand for a new trial.

Plaintiff, then 17 years of age, sustained severe injuries in August of 1985 when he tilted an aluminum irrigation pipe in order to dislodge a rabbit trapped inside, and the pipe came into contact with uninsulated electric transmission lines owned and maintained by defendant. Plaintiff filed suit against defendant claiming that its negligence was the cause of his injuries. Defendant answered, asserting that plaintiff's own negligence was the sole cause of the accident.

The record reflects that the 7200-volt electric transmission system in question was initially constructed in 1964 by a rural electric association. The system consists of four lines attached to poles. Three of the lines carry electricity and a fourth does not. The system was acquired by defendant in either 1968 or 1969.

The lines cross a parcel acquired by plaintiff's father in 1976 and the lines carrying electricity are situate at an elevation of approximately 20 feet above the ground. Since before 1970, three acres of this parcel had been irrigated from time-to-time by the 30-foot pipes for agricultural purposes. When not in use, the pipes were stacked and stored directly beneath the transmission lines.

Employees of defendant made some inspections of the lines. However, records of the inspections were not maintained, and no regular schedule for inspections was adopted. Employees also made regular visits to the parcel to read the electric meter and, on one occasion, to repair a transformer. The pipes stored beneath the lines were in plain view from the location of the meter and the transformer and had been so since 1976.

Plaintiff claimed that defendant was negligent in failing to recognize and take steps to resolve the obvious hazard posed by the irrigation pipes stored beneath the lines. Specifically, plaintiff relied upon alleged violations of the National Electrical Safety Code relative to elevation of the lines. In the alternative, plaintiff asserted that the Code and the industry standards were violated by defendant's failure to adopt and promote a general safety campaign consisting of mailing information to its customers of the inherent dangers in contacting the lines with long objects and to observe the pipes and require the property owner to remove the pipes from under the lines.

At the close of trial, the jury entered a general verdict finding defendant 60% negligent and plaintiff 40% negligent.

I

Defendant first argues that the trial court erred in denying its motion for directed verdict because plaintiff did not establish a prima facie case of negligence under either of his theories. Defendant, in effect, requested a directed verdict on the grounds that plaintiff had established no duty by it to protect against the type of accident that caused his injuries and that the accident was not foreseeable. We agree with one of defendant's contentions.

The issue of whether defendant owed a legal duty to plaintiff under the facts here is a question of law as is the scope of any duty legally perceived to apply. Bath Excavating & Construction Co. v. Wills, 847 P.2d 1141 (Colo.1993).

Several factors are relevant in making this determination including the risk involved, the foreseeability and likelihood of injury as weighed against the social utility of defendant's conduct, the magnitude of the burden required to guard against the injury, and the consequence of placing the burden upon the defendant. Greenberg v. Perkins, 845 P.2d 530 (Colo.1993).

In evaluating the issue of foreseeability in the context of a legal duty, if different inferences may be drawn from the evidence presented, that issue must be resolved by the jury. Sewell v. Public Service Co., 832 P.2d 994 (Colo.App.1991).

Other considerations may also be relevant in resolving the duty issue because the ultimate standard for assessing the actor's obligation is one of fairness. Specifically, the test is whether reasonable persons recognize and agree that a duty exists under the circumstances. Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987).

To the extent that the duty issue is resolved in plaintiff's favor, then, in reviewing the denial of defendant's motion for directed verdict, the evidence must be viewed in a light most favorable to the plaintiff as the non-moving party. Palmer v. A.H. Robins Co., 684 P.2d 187 (Colo.1984). As a result, every reasonable inference that may legitimately be drawn from the evidence must be construed in plaintiff's favor. Evans v. Webster, 832 P.2d 951 (Colo.App.1991). Finally, a directed verdict on the issue of negligence is not proper if the facts, or the inferences that may be drawn therefrom, are controverted. Hennigar v. Van Every, 139 Colo. 144, 337 P.2d 7 (1959).

A

We initially address the issue whether defendant had a duty to elevate the transmission lines in excess of the 20-foot elevation that existed on the date of the accident.

The jury was instructed that the applicable provisions of the 1961 National Electrical Safety Code "in effect as a law of the state of Colorado" required that:

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....

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.

The jury was further instructed that a violation of the Code constituted negligence.

Two experts were called to testify by plaintiff and two experts were called to testify by defendants relative to the proper elevation for the lines under the Code. One of plaintiff's experts testified that because this was a rural agricultural area, defendant could expect loaded hay wagons as high as 20 feet with the result that the lines should have been elevated to 27.5 feet in order to be safe for this activity. This expert also testified that, because 30-foot spans of irrigation pipe were in use, the Code required that the lines should be elevated to a height of 37.5 feet.

Plaintiff's other expert opined that the elevation of the lines was not in conformance with the Code and that those lines transmitting electricity should have been at least 22 feet high. However, he was also of the view that raising the lines to that height in this case would not have avoided this accident.

Both of defendant's experts testified that the elevation of the lines did comply with the Code and that, therefore, there was no violation of any duty on defendant's part under the circumstances. One of the experts stated that a 30-foot irrigation pipe when raised to its full vertical height would come in contact with "almost every line section in the United States across rural and agricultural lands."

Given this state of the record, we are unable to conclude that the elevation issue should have been submitted to the jury. Notwithstanding the dispute among the experts as to the proper interpretation of the Code, we are unable to conclude that defendant had a legal duty to elevate the lines further because of the presence of the irrigation pipe.

While we find no Colorado cases that have addressed this specific issue, we are persuaded by the opinion in Wilson v. Kansas Power & Light Co., 232 Kan. 506, 513-514, 657 P.2d 546, 552 (1983) on defendant's duty under these circumstances:

[T]he mere usage of metal irrigation pipe in a rural cultivated field does not, in and of itself, mandate alteration of existing electrical transmission lines otherwise satisfactorily designed and maintained. To hold that usage of irrigation pipe alone creates a duty on the power company to raise, bury, relocate or coat its lines would place an unreasonable and unrealistic burden on power companies. This obviously could not be complied with and would, in essence, elevate the power company to the status of an insurer.

Plaintiff presented no evidence seeking to establish that costs to defendant to elevate lines in agricultural areas where irrigation pipes are in use could reasonably be accommodated. See Icenogle v. Myers, 167 Ill.App.3d 239, 118 Ill.Dec. 95, 521 N.E.2d 163 (1988). Conversely, viewing together the testimony of the various experts, we find it apparent that the time and cost for such an undertaking throughout the various rural areas would be unreasonable.

B

We next address plaintiff's contention that defendant failed to recognize the hazard presented by storage of the irrigation pipe under the transmission lines and the asserted duty of defendant to take affirmative acts to inform the owner and require removal of the pipes and specific warnings as to the dangers inherent in storing the pipes in that area.

The jury was instructed relative to the Code pertinent to this issue as follows:

All electrical supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable.

Lines and equipment shall be systematically...