Groen v. Tri-O-Inc.

• Decision Date: 29 June 1983
• Docket Number: TRI-O-INC,No. 17684,17684
• Citation: 667 P.2d 598
• Parties: David L. GROEN and Rocky Mountain Helicopters, Inc., Plaintiffs and Appellants, v., Defendant and Respondent.
• Court: Utah Supreme Court

Page 598

667 P.2d 598

David L. GROEN and Rocky Mountain Helicopters, Inc. Plaintiffs and Appellants, v. TRI-O-INC., Defendant and Respondent.

No. 17684.

Supreme Court of Utah.

June 29, 1983.

Robert M. McDonald, Suzanne M. Dallimore, Salt Lake City, for plaintiffs and appellants.

H. James Clegg, David G. Williams, Salt Lake City, for defendant and respondent.

OAKS, Justice:

This is an action for personal injury and property damage sustained in a helicopter crash. Judgment was entered on a special verdict for the defendant. On appeal, plaintiffs contend that (1) the verdict of no negligence was not supported by the evidence, (2) the jury was guilty of misconduct, and (3) the district court erred in refusing to instruct the jury on implied and express warranties of fitness.

Defendant Tri-O-Inc. (Tri-O) is an electrical contractor. At the time of the accident, it had a contract to erect electrical towers and string power line in Colorado. It was necessary to string part of the line by helicopter, an operation called "flying wire." Tri-O contracted with plaintiff Rocky Mountain Helicopters, Inc. (Rocky Mountain), to perform the necessary helicopter work. Under the terms of the work order, Rocky Mountain was to supply a helicopter and pilot, and Tri-O was to supply all other equipment necessary to string the wire. Rocky Mountain sent two of its pilots, plaintiff Groen and Joe Candlish, to the job site to perform the contract. Groen, an experienced pilot, was Rocky Mountain's safety officer. He was to teach Candlish how to fly wire.

"Flying wire" requires a helicopter to fly sideways alongside electrical towers. The helicopter threads a 100-foot length of lead rope connected to a steel cable along the towers by laying it into "travellers," which hang from the tower arms. (Later, this cable will be used to pull a larger cable and finally the permanent heavy conductor line through the travellers, where the line is affixed to the insulators on the tower.) There is no precise technique for flying wire. The key elements are precision and an ability to pull the cable at a constant rate of speed. The helicopter's speed varies depending on many factors, including weather conditions, the terrain, and the distance between towers.

Tri-O, through its superintendent, Kenneth Clinger, chose a 1/2-inch polypropylene twisted rope ("PD-10") as the lead rope with which to fly the wire. Groen had flown wire previously, using "Sampson" rope, which was larger in diameter ( 3/4 inch) and of a different construction (braided rather than twisted). When Groen arrived at the job site, he requested Sampson rope. Clinger told him that he had none in stock but he agreed to supply it and sent a runner to Denver for it.

In the meantime, Clinger asked Groen to get him "out of a bind." Tri-O had already obtained a permit to perform a flying operation across the freeway and had arranged with the Highway Patrol to control traffic. Tri-O needed Groen to fly wire up to and across the freeway to meet this schedule. Groen was concerned about the strength of the PD-10 rope and repeatedly asked if Clinger was "sure" it would "be strong enough." Clinger, who claimed to be knowledgeable about ropes, assured him that it was.

Relying on these assurances, Groen flew with the PD-10 rope. The first day, conditions were ideal and the work went well. On the second or third day, he flew wire up to and across the freeway. On the far side of the freeway, the rope snagged on the tower arm and broke. Whipsawing back toward the helicopter, it wrapped around the mast with such velocity that it bent the control rods that run alongside the mast, making it impossible to control the angle of the blade. The whirling blade pitched downward, cutting off the tail of the helicopter. The helicopter plummeted approximately 125 feet to the ground, where it crashed, bounced, and crashed again. Groen landed squarely on the base of his spine, suffering permanently disabling injuries. The helicopter was destroyed.

In this action against Tri-O, Groen sought compensation for his personal injuries, medical expenses, and lost earnings; Rocky Mountain sought the value of its helicopter. After the district court refused to give plaintiffs' requested jury instructions on breach of implied and express warranties, the case went to the jury solely on the theory of negligence.

By special verdict, the jury found that neither defendant Tri-O nor plaintiff Groen was negligent. In a separate verdict, the jury found that general and special damages totaling $212,000 would compensate Groen for his injuries. (The parties had already stipulated that the helicopter's value was $37,500 and that this amount would compensate Rocky Mountain.) A judgment was entered in favor of defendant Tri-O, no cause of action; no damages were awarded. Thereafter, plaintiffs moved for judgment notwithstanding the verdict, and alternatively for a new trial. The court denied both motions, and plaintiffs took this appeal.

I. Evidence to Support Verdict

The jury was instructed that defendant Tri-O had a duty to use reasonable care in selecting, furnishing, and inspecting the rope and in informing Groen of any known defects or facts that would affect the reasonable safety of the rope, and that the failure to exercise such reasonable care would constitute negligence. ¹ On appeal, plaintiffs contend that the jury's finding that Tri-O had not been negligent was unsupported by the evidence, and, indeed, that it was contrary to the weight of the evidence.

It is the exclusive province of the jury to determine the credibility of the witnesses, weigh the evidence, and make findings of fact. Williams v. Lloyd, 16 Utah 2d 427, 429-30, 403 P.2d 166, 167 (1965); Joseph v. W.H. Groves Latter-Day Saints Hospital, 10 Utah 2d 94, 99-100, 348 P.2d 935, 938 (1960). Where the evidence is conflicting and the jury is properly instructed, we do not upset those findings of fact on appeal except upon a showing that the evidence, viewed in the light most favorable to the verdict, so clearly preponderated in appellant's favor that reasonable persons could not differ on the outcome of the case. Ute-Cal Land Development Corp. v. Sather, Utah, 605 P.2d 1240, 1245 (1980); Nelson v. Watts, Utah, 563 P.2d 798, 799 (1977).

The record at trial contained ample evidence from which the jury could have found either party negligent or neither party negligent.

There was abundant evidence that polypropylene rope is commonly used in flying wire. Two construction superintendents experienced in erecting electrical towers and stringing wire testified that pilots on their projects usually used polypropylene rope, and the pilot who invented the flying method used by Groen testified that, given a choice, he always used polypropylene rope, though usually larger than 1/2 inch in diameter.

At the meeting between Groen, Candlish, and the Tri-O superintendent, Clinger, in the show-up yard on the first morning, Clinger informed Groen that the lead rope had been used before. However, at trial, both Groen and Clinger admitted that it was not common practice to replace the lead rope every day. Typically, such ropes are changed whenever they begin to show signs of wear or damage visible on inspection. Clinger testified that in the industry ropes are used from two weeks to eight months depending on the amount of wear they suffer. Clinger inspected the rope visually, and Groen also inspected it thoroughly hand over hand every morning before he began to fly, including the morning of the accident. Neither man found any apparent defect. Hence, there was substantial evidence from which the jury could have concluded that Tri-O was not negligent in selecting or furnishing polypropylene rope to Groen or in failing to inform him of its previous use.

The cause of the accident was also disputed. The record indicates that flying wire is inherently dangerous work that few pilots undertake for any length of time. It was undisputed at trial that snags are a common and perhaps unavoidable occurrence. Although it was uncontroverted at trial that Groen was an excellent, experienced pilot with a general reputation of competence in flying wire, there was also substantial credible evidence that he flew much faster than other pilots fly even with ideal conditions in weather, terrain, and distance between towers. Groen testified that at the time of the accident he was going approximately 25 to 30 miles per hour and that it was his practice to fly as fast as conditions permitted. Tri-O's representatives testified that they had observed other pilots fly wire between 10 and 20 miles per hour and that they had never seen any other pilot fly as fast as 30 miles per hour. The inventor of the flying method testified that threading a traveller at 18 to 20 miles per hour would have been the upper limit of safety and that it is probably the best practice to fly between 10 and 12 miles per hour, slowing down to 8 miles per hour at towers, where snags are more likely.

Plaintiffs argue that Tri-O's representatives, who observed Groen flying while in radio communication with him, were negligent in failing to warn him against flying at such high speeds with the PD-10 rope. However, Groen himself, Clinger, and Tri-O's line foreman all testified that the job was "going great" with no cause for concern right up until the accident. Moreover, all three testified that speed and technique in flying the helicopter were solely within the pilot's discretion and expertise and that as the "pilot in command," Groen was the final authority with regard to operation of the aircraft. The jury was so instructed.

The expert witnesses for both sides were in conflict on the fitness of the rope. Plaintiffs' experts testified that when new the rope had a breaking strength of 4,400 pounds and would have broken at 25 miles per hour. However, at the time Groen began using it, the rope showed signs of wear and had lost 40...