Jamestown Sand & Gravel v. Tri-County Elec. Co-op., Inc., TRI-COUNTY

• Decision Date: 27 July 1984
• Docket Number: TRI-COUNTY,No. 10595,10595
• Citation: 351 N.W.2d 727
• Parties: JAMESTOWN SAND & GRAVEL, a corporation, Plaintiff and Appellant, v.ELECTRIC COOPERATIVE, INC., a corporation, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 727

351 N.W.2d 727

JAMESTOWN SAND & GRAVEL, a corporation, Plaintiff and Appellant, v. TRI-COUNTY ELECTRIC COOPERATIVE, INC., a corporation Defendant and Appellee.

Civ. No. 10595.

Supreme Court of North Dakota.

July 27, 1984.

Hjellum, Weiss, Nerison, Jukkala, Wright & Paulson, Jamestown, for plaintiff and appellant; argued by John Hjellum, Jamestown.

Zuger & Bucklin, Bismarck, for defendant and appellee; argued by James S. Hill, Bismarck.

GIERKE, Justice.

This is an appeal by Jamestown Sand & Gravel, Inc. (Jamestown) from a judgment of the District Court of Stutsman County dismissing, on its merits, Jamestown's action against Tri-County Electric Cooperative, Inc. (Tri-County). We affirm.

Jamestown is a sand and gravel producing and marketing business. The seasonal operation, which runs approximately eight months of each year, generally ceases to operate during November and commences again the following March.

During 1973, Jamestown entered a ten-year agreement with Tri-County to have that electrical cooperative supply it with 480 high voltage power. During February 1981, an electrical shed owned by Jamestown was destroyed by fire resulting in damages to Jamestown of allegedly more than $33,000. Jamestown filed this action alleging that the damages it suffered were caused by Tri-County's negligent failure to "de-energize" or "turn off" the high voltage power being supplied to its facility. After an evidentiary hearing, the trial court determined that Tri-County had incurred no legal duty to terminate the power being supplied to the Jamestown operation. The trial court further determined that, assuming Tri-County had a duty to terminate the power, Jamestown did not prove that the failure to terminate the power supply was a proximate cause of the fire or the resultant damages.

We conclude that the following issue, raised by Jamestown, is dispositive of this appeal, making it unnecessary to discuss any other issue:

Whether or not the trial court erred in its determination that Tri-County did not have a legal duty to terminate the high voltage power being supplied by it to the Jamestown facility.

In a negligence action, the determination of whether or not a duty exists is a question of law to be resolved by the court. DeLair v. County of LaMoure, 326 N.W.2d 55 (N.D.1982). On appeal, conclusions of law by the trial court are fully reviewable by this Court without regard to Rule 52(a), N.D.R.Civ.P. See, Midland Diesel Service & Engine v. Sivertson, 307 N.W.2d 555 (N.D.1981). However, findings of fact made by the trial court upon which a legal conclusion is based will not be set aside by this Court on appeal unless they are clearly erroneous. Rule 52(a), N.D.R.Civ.P.

The relevant provisions of the 1973 contract by which Tri-County agreed to supply high voltage power to Jamestown state:

"2. Payment.

"a. ... Notwithstanding any provision of the Schedule and irrespective of Consumer's requirements for or use of electric power and energy, the demand for billing purposes hereunder shall be not less than 200 kilowatts for any billing period. In any event the Consumer shall pay to the Seller not less than $600.00 per month for 8 months/year or an annual minimum of $4800.00 for service or for having service available hereunder during the term hereof.

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"4. Continuity of Service.

"The Seller shall use reasonable diligence to provide a constant and uninterrupted supply of electric power and energy hereunder....

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"6. Term.

"This Agreement shall become effective on the date first above written and shall remain in effect until 10 years following the start of the initial billing period and thereafter until terminated by either party giving to the other 3 months' notice in writing."

The trial court concluded that the written agreement did not obligate Tri-County to terminate the high voltage power supply to Jamestown during the four winter months each year that its sand and gravel business was not operating or at any other time during the ten-year term of the contract.

Jamestown concedes that the written contract, by its terms, does not obligate Tri-County to disconnect the power being supplied to Jamestown under that agreement. Jamestown...