Grant v. Arizona Public Service Co., 15761-PR

• Decision Date: 28 June 1982
• Docket Number: No. 15761-PR,15761-PR
• Citation: 133 Ariz. 434,652 P.2d 507
• Parties: Sharon GRANT, personal representative of the estate of Koy Grant, deceased; Sharon Grant individually and on behalf of Jason Grant and Jared Grant, minors, Plaintiffs-Appellees, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation, Defendant-Appellant.
• Court: Arizona Supreme Court

Page 507

652 P.2d 507

133 Ariz. 434

Sharon GRANT, personal representative of the estate of Koy Grant, deceased; Sharon Grant individually and on behalf of Jason Grant and Jared Grant, minors, Plaintiffs-Appellees, v. ARIZONA PUBLIC SERVICE COMPANY, an Arizona corporation, Defendant-Appellant.

No. 15761-PR.

Supreme Court of Arizona, In Banc.

June 28, 1982.

Supplemental Opinion Oct. 7, 1982.

Rehearing Denied Oct. 5, 1982.

Charles M. Brewer, Ltd. by Charles M. Brewer, Stuart J. Reilly, Phoenix, for plaintiffs-appellees

Snell & Wilmer by George H. Lyons, Loren W. Counce, Jr., Phoenix, for defendant-appellant.

Gerald W. Alston, Browder & Kenney by Robert W. Browder, Norton, Burke, Berry & French by William P. French, O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by Ralph E. Hunsaker, Robbins & Green by Michael J. O'Grady, Daughton, Feinstein & Wilson by Donald Daughton, Fennemore, Craig, von Ammon & Udall by Philip E. von Ammon, Gust, Rosenfeld, Divelbess & Henderson by Richard A. Segal, Jennings, Strouss & Salmon by Gary L. Stuart, Wentworth & Lundin by John E. Lundin, Evans, Kitchel & Jenckes by Burton M. Apker, Ryley, Carlock & Ralston by George Read Carlock, C. A. Carson, Phoenix, Howard H. Karman, Casa Grande, Chandler, Tullar, Udall & Redhair by Jack Redhair, Slutes, Browning, Sakrison & Grant by Tom Slutes, William D. Browning, Johnson, Dowdall & Payne by J. Mercer Johnson, Lesher, Clausen & Borodkin by Robert O. Lesher, Murphy & Hazlett by Carl Hazlett, Tucson, amicus curiae.

FELDMAN, Justice.

Sharon Grant brought this action to recover damages for the wrongful death of her husband, Koy Grant. The trial court entered judgment in favor of the plaintiffs on a jury verdict of $1,000,000 in favor of Ms. Grant and $250,000 to each of her two children. The court of appeals reversed, Grant v. Arizona Public Service, --- Ariz. ---, 652 P.2d 548 (App.1981). We granted Grant's Petition for Review and now vacate the opinion of the court of appeals and affirm the judgment of the trial court. This court has jurisdiction pursuant to A.R.S. § 12-120.24.

Grant died on February 3, 1976, as the result of electrocution. At the time of his death, he was a carpenter employed by Kensington West-Mayo Construction Company (Kensington). Kensington was the prime contractor for the City of Phoenix in the construction and installation of a new storm sewer. The construction work involved use of a backhoe to excavate a large trench in 15th Avenue, which runs in a north-south direction, and the use of a crane to lift sections of 6-foot diameter storm sewer pipes from the ground drop Power lines under the control of respondent Arizona Public Service (APS) ran in a north-south direction on the west side of 15th Avenue, 35 feet above ground level. Thus, they were parallel to and at the west edge of the sewer line excavation. The lines were uninsulated and carried 12,000 volts. At various points along 15th Avenue, branches from the main north-south power line on the west side of 15th Avenue ran east, crossing the street and the trench excavation. The diagram below, similar to Exhibit 340 in evidence, depicts the excavation site:

and set them in the trench. The crane operated on the east side of the trench with its boom extending to the west, and moved north along the east side of the trench as the work proceeded from south to north. After the crane had laid the pipe in a section of trench, the trench was closed with earthmovers and the men and equipment proceeded north to the next section of work, where the process was repeated.

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

By December of 1975, work had progressed to a point near the intersection of 15th Avenue and Watkins Road. At this intersection, a "special construction feature" (described At the time of the accident, Grant was in the bottom of the excavation doing his assigned work of attaching the piling to the excavation wall. A fellow employee was standing on the ground above the west side of the excavation holding a tag line. He inadvertently pulled the tag line so that it came into contact with the power lines. High-voltage electricity traveled down the crane lines, electrocuting Grant.

below in more detail) required that the trenching excavation be made considerably wider and deeper. A subcontractor, Lester Construction Company (Lester), was engaged to install sheet piling for shoring to prevent the cave-in of the west excavation wall. Lester was using a crane, no larger than the Kensington crane, to raise the pieces of metal sheet piling from the ground, position them over the excavation, lower them into the hole and hold them in a vertical position next to the west bank, while the workmen in the hole anchored the lower end of the piling to a frame positioned at the bottom of the excavation. Like the Kensington crane, the Lester crane was positioned at the east side of the excavation, with the boom extended above and to the west of it, at an angle of approximately 60? from the ground. As the crane hook, lines and sheet piling descended from the top end of the crane boom to the bottom of the excavation, the crane lines passed within a few feet of APS power lines at the edge of the west bank.

The trial court denied APS' motion for a directed verdict, sent the case to the jury on the theory of negligence and instructed the jury on punitive damages. The jury awarded compensatory damages but did not make an award of punitive damages. The court of appeals found that the cumulative effect of errors at trial was prejudicial and denied APS a fair trial. It therefore reversed and remanded for a new trial. The various issues raised by APS will be considered separately and additional facts will be given where appropriate.

APS' MOTION FOR A DIRECTED VERDICT

APS argues that the trial court erred by denying its motions for summary judgment and for a directed verdict. We agree with the court of appeals that denial of these motions was not error.

As the court of appeals indicated, the law requires a distributor of electric power to take precautions reasonably commensurate with the dangers involved whenever the distributor can reasonably anticipate that persons may come into contact with its lines. Mason v. Arizona Public Service, 127 Ariz. 546, 551-52, 622 P.2d 493, 498-99 (App.1980). APS argues that it neither had knowledge of the specific danger nor opportunity to take steps to avoid injury to plaintiff. APS cites many cases holding both that a public utility has no "duty" to anticipate that a contractor or its workmen in the vicinity of high-voltage lines will use a crane that may come into contact with the lines, and that a utility which has no reason to foresee that workmen on the ground are endangered by lines high above ground level cannot be held negligent for simply maintaining such lines.

This argument, although correct in principle, is not applicable to the facts of this case. The plans here called for the construction of a box culvert at the intersection of 15th Avenue and Watkins, and it was during the construction of that box culvert that the contact between the crane cable and the power lines occurred. ¹ This "special construction feature" was detailed on the plans which were given Arizona Public Service; in fact, APS' gas division had removed its underground gas lines from the APS said they could remove the [branch] lines ... that service Starlight Company [on the east side of the excavation] but could not do anything with the [main] lines on the west side, but they will continue to brace the poles as needed. ²

utility easement shared with the power lines and had relocated the gas line a distance of some feet to the west. In addition, there was evidence that Kensington's construction superintendent, Clarke, and APS' safety liaison officer discussed use of a crane to set piles on the west side of the excavation. Testimony also indicated that on December 16, 1975, APS warned the contractor about the hazards of a crane working near the high-voltage lines located at Watkins and 15th Avenue. The city inspector who was present at a meeting between the APS representative and the construction superintendent on December 19, 1975, made a diary entry as follows:

In addition, the inspector testified regarding a conversation he heard about de-energizing the lines in order to protect the workmen in case there was contact with the crane. That testimony was as follows:

[W]hat did Mr. Clarke tell Mr. Miller [the APS representative]?

A. Mr. Clarke told him to the effect that he had to build something down under the big line, which wasn't exposed at that time, and that he was also going to have to drive some piling in that area.

Q. Do you remember, does anything else stick in your mind as to what Mr. Clarke told Mr. Miller on that occasion at this vicinity?

A. Well, they were still discussing, which, I couldn't hear every word of the conversation, I was getting ready to leave. But, I heard Mike holler, or kind of holler, raise his words, and he says, "Well, can't you kill the God damn thing?" I don't talk like that, I'm sorry, but, that's what he said, couldn't he kill [de-energize] the damn thing.

Q. Pointing to these lines running on the west side of 15th Avenue?

A. Yes, sir.

Clarke claimed that APS told him that "nothing could be done" because of the need to continue service to downstream power customers. APS claimed it told Clarke it could take precautions if he made a proper request. Because we must view the evidence in the light most favorable to sustain the verdict and judgment, Lane Title & Trust Co. v. Brannan, 103 Ariz. 272, 279, 440 P.2d 105, 112 (1968), we assume the jury properly accepted Clarke's version.

In addition to the testimony that would have allowed the jury to conclude that APS was aware of the actual danger, there was ample testimony from which the jury could have concluded that APS should have been...