Jenks v. Hill

• Decision Date: 08 January 1981
• Docket Number: No. CIV-80-200-W.,CIV-80-200-W.
• Citation: 504 F. Supp. 1130
• Parties: Stephen O. JENKS and Marilyn Jenks, Plaintiffs, v. Ballard HILL; John Hill; Harmon Electric Association, Inc.; Western Farmers Electric Cooperative; and John Deere Company, a Delaware Corporation, Defendants.
• Court: U.S. District Court — Western District of Oklahoma

504 F. Supp. 1130

Stephen O. JENKS and Marilyn Jenks, Plaintiffs, v. Ballard HILL; John Hill; Harmon Electric Association, Inc.; Western Farmers Electric Cooperative; and John Deere Company, a Delaware Corporation, Defendants.

No. CIV-80-200-W.

United States District Court, W. D. Oklahoma.

January 8, 1981.

H. Keith Myers, Myers Mollison & Weber, Altus, Okl. and John M. Merritt, Oklahoma City, Okl., for plaintiffs.

Donald R. Wilson, Fenton, Fenton, Smith, Reneau & Moon, Oklahoma City, Okl., for defendant Ballard Hill.

Bob R. Scarbrough, Altus, Okl., for defendant John Hill.

Ronald R. Hudson, Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, Okl. and James P. Garrett, Garrett & Salter, Mangum, Okl., for defendant Harmon Elec. Ass'n, Inc.

Earl D. Mills and David W. Edmonds, of Foliart, Mills & Neimeyer, Oklahoma City, Okl., for defendant Western Farmers Elec. Co-op.

John C. Harrington, Jr., Oklahoma City, Okl., for defendant John Deere Co.

MEMORANDUM OPINION AND ORDER

LEE R. WEST, District Judge.

Defendant Western Farmers Electric Cooperative has moved for summary judgment pursuant to the provisions of Rule 56, F.R.Civ.P. Plaintiffs have filed a response thereto and the defendant has submitted a reply brief in support of its motion. The Court has considered the pleadings, the briefs, and the evidentiary materials submitted by both parties and makes the following determination.

On a motion for summary judgment, the Court must construe the facts in a way most favorable to the non-movant. United States v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962). The existence of any "genuine issue as to any material fact" precludes the grant of summary judgment. Rule 56, supra. Where different ultimate inferences may properly be drawn, the case is not one for summary judgment. Security National Bank v. Belleville Livestock Commission Co., Inc., 619 F.2d 840 (10th Cir. 1980). The party moving for summary judgment has the burden to show that he is entitled to judgment under established principles; and if he does not discharge that burden, he is not entitled to summary judgment. Security National Bank, 619 F.2d at 848. The party opposing summary judgment cannot rest on his pleadings when the motion is supported by affidavit setting forth such facts as would be admissible in evidence and demonstrating the absence of any material issue of fact and that the moving party is entitled to a judgment as a matter of law. Security National Bank, 619 F.2d at 848-49; Riggs v. British Commonwealth Corp., 459 F.2d 449, 451 (10th Cir. 1972).

The underlying action is one for negligence and manufacturer's products liability arising from an accident in which the plaintiff Stephen Jenks came into contact with an electric power line and suffered various physical injuries as a result. The complaint charges that Western Farmers was negligent in that it furnished electricity to Harmon Electric Association, Inc., when it knew or should have known that Harmon Electric did not maintain its electrical lines at a distance above the ground required to meet the standards of the National Electric Code or to accommodate the transportation of farm implements on the rural roads.

The defendant's motion for summary judgment rests on three distinguishable bases. First, Western Farmers adopts the motion for summary judgment submitted by its co-defendant Harmon Electric. This Court has previously overruled that motion which was dependent on a finding by the Court that the plaintiff Stephen Jenks was contributorily negligent as a matter of law and that such contributory negligence relieved the movant of any possible liability. For reasons fully enunciated in that Order dated December 31, 1980, this Court was unable to find that there was a lack of factual issues as to contributory negligence and therefore denied the motion for summary judgment. Similarly, to the extent that Western Farmers' motion for summary judgment rests on the arguments advanced by Harmon Electric, it must also be denied.

Western Farmers also briefly mentions in its argument for summary judgment that at the time of the injury, the plaintiff Stephen Jenks was in violation of 63 Okl.St. § 981 et seq., which in part prohibits any function or activity within six feet of any high voltage overhead electrical line or conductor. It may be summarily stated that this law does not confer immunity from tort liability upon electrical utility companies. An electrical company such as the movant must still exercise a high degree of care in conducting its operations. Kimery v. Public Service Co. of Okla., Okl., 622 P.2d 1066, Okl.Sup.Ct., 51 O.B.A.J. 2941, 2943, (1980). The plaintiff's alleged violation of the statute, if true, is not dispositive of Western Farmers' possible liability for negligence.

The third basis offered by Western Farmers as grounds for summary judgment is that Western Farmers is not liable for any negligence of Harmon Electric in the maintenance of the electrical line involved because Western Farmers had no idiosyncratic duty to inspect Harmon Electric's distribution system, and had no vicarious duty to inspect or repair since it had neither actual nor constructive notice of any negligence by Harmon Electric in the maintenance of the distribution system. In opposing the motion for summary judgment, the plaintiffs assert that Western Farmers had constructive notice because Harmon Electric's Secretary-Treasurer, Mr. Robert Stookesberry, also serves as a member of the Western Farmers Board of Directors. The plaintiffs further assert that any knowledge imputable to Harmon Electric is also imputable to Western Farmers because of Mr. Stookesberry's dual role.

A coherent reading of the uncontroverted allegations indicates that Western Farmers Electrical Cooperative is a generating and transmission cooperative. Most of the electricity sold by Western Farmers is generated at either their Moreland or Anadarko, Oklahoma, plants. They also purchase electric power from several other generating companies including Public Service Company of Oklahoma, Oklahoma Gas & Electric, and the Southwest Power Administration. Western Farmers sells electricity to 19 cooperative distribution systems. Each of the distribution cooperatives appoints one member to the Western Farmers Board of Directors. Western Farmers has no stock and is a nonprofit corporation. It is effectively owned by the 19 member cooperatives whose representatives to the Board of Directors determine the rates at which electricity will be sold to the member cooperatives. Western Farmers employs an engineering and maintenance crew to service its transmission lines and substations.

The general rule relating to the duty of a generating company which furnishes electricity to a distribution company which exercises exclusive control over the distribution system is stated at 26 Am.Jur.2d Electricity, Gas, and Steam § 107, p. 316, which reads in part:

According to a number of cases, a generating company which merely sells electric current to a distributing company which in turn distributes such current to its own patrons, the generating company having no control over the wires and appliances of the distributing company, is not liable for injuries or damage resulting from the condition of such wires and appliances, at least in the absence of knowledge of such condition....

There are few reported cases in Oklahoma law which involve this sort of relationship and question of liability. The two most relevant cases do indicate that the general rule would obtain in this state. The case of Minnesota Electric Light & Power Co. v. Hoover, 102 Okl. 270, 229 P. 285 (1924), concerned a generating company which sold electricity to a refinery. At trial, the question of ownership of the electrical lines and the resultant duty of inspection was sharply contested. Instructions to the jury revealed that the trial court concluded that it was immaterial whether the electrical company or the refinery owned the lines because the electrical company would be held to the duty of inspection in either event. The Oklahoma Supreme Court made an exhaustive survey of decisions from other states in determining the proper rule to be adopted to govern the liability of a generating company. The Supreme Court adopted the general rule and concluded...