Kentucky Utilities Co. v. Auto Crane Co.

• Decision Date: 11 March 1983
• Citation: 674 S.W.2d 15
• Parties: KENTUCKY UTILITIES COMPANY, Appellant, v. AUTO CRANE COMPANY and Kentucky Machinery Company, Appellees. Charles E. DUNIGAN, Appellant, v. KENTUCKY UTILITIES COMPANY and Auto Crane Company, Appellees.
• Court: Kentucky Court of Appeals

Page 15

674 S.W.2d 15

KENTUCKY UTILITIES COMPANY, Appellant, v. AUTO CRANE COMPANY and Kentucky Machinery Company,

Appellees.

Charles E. DUNIGAN, Appellant, v. KENTUCKY UTILITIES COMPANY and Auto Crane Company,

Appellees.

Court of Appeals of Kentucky.

March 11, 1983.

Case Ordered Published by

Court of Appeals May 27, 1983.

Discretionary Review Denied by

Supreme Court Sept. 7, 1984.

Escum L. Moore, Jr., Turley, Savage & Moore, Lexington, for appellant, Charles E. Dunigan.

W.R. Patterson, Jr., John R. Martin, Jr., Landrum, Patterson & Dickey, Lexington, for appellee, Kentucky Machinery Co.

Robert L. Milby, Hamm, Milby & Ridings, London, for appellee, Auto Crane Co.

Lindsey W. Ingram, Stoll, Keenon & Park, Lexington, for appellant, Kentucky Utilities.

Before COOPER, HOWERTON and LESTER, JJ.

HOWERTON, Judge.

These appeals are from a summary judgment entered by the Laurel Circuit Court. The court concluded that Dunigan was contributorily negligent and that his negligence was a substantial contributing factor in causing his injuries. His complaint was dismissed with prejudice. The judgment further dismissed Kentucky Utilities' cross-claim against Auto Crane Company and its third-party complaint against Kentucky Machinery Company. Kentucky Utilities has filed its appeal merely to protect its rights against Auto Crane and Kentucky Machinery, in the event the summary judgment dismissing Dunigan's claim is reversed.

Dunigan presents four grounds for reversal. He argues that there are genuine issues of material fact concerning his contributory negligence and that it was, therefore, error for the trial court to grant a summary judgment. His second argument is that Kentucky Utilities Company violated a statutory safety standard and the defense of Dunigan's contributory negligence is unavailable to it. He next argues that since K.U. and Auto Crane are strictly liable, the defense of contributory negligence is not available. His final ground for reversal is that the appellees' conduct was wanton and in reckless disregard for his safety, and the defense of contributory negligence is not available to them.

Dunigan had been employed by Kentucky Machinery for three years. He was a field mechanic assigned to a large pickup truck equipped with a crane used to assemble heavy earth-moving equipment. Auto Crane was the manufacturer of the crane equipment. Dunigan had approximately six to eight months experience in using the crane. The boom could be moved up and down and could rotate 360?. It was operated by a hand-held remote control box connected to the crane by wires.

Dunigan had used the crane at a work site to attach a blade to a bulldozer. He was moving the boom back to its cradle when it came in contact with overhead electrical wires. Dunigan was severely injured and burned, and he has no memory of the accident.

Dunigan contends that he is entitled to a trial and that his expert witnesses could prove that the wires in question were located below the minimum vertical clearance prescribed by the National Electric Safety Code, which is the legal standard in Kentucky. He also contends that two expert witnesses would testify that it is difficult to see high-voltage wires and that, because of the difference in the size of the boom and the wires, an optical illusion is created which makes the wire appear to be a greater distance from the boom than it actually is.

The trial court considered the evidence from depositions and affidavits. Two employees for Auto Crane testified concerning the illusion. Dunigan's co-worker testified that he had not seen the wires but that he had never looked for them or even looked up. He admitted that if he had looked for the wires, he probably would have seen them. There were no trees or other structures obscuring the lines. Dunigan's own testimony revealed that he had operated the crane in the area of high-tension wires and that he remembered a warning sign being on the boom indicating that it should not be brought within 10 feet of a power line. He also testified that he knew it was dangerous to touch a power line with a boom.

The Public Service Commission investigated the accident and concluded that the ground clearance for the wires was adequate. They found no violation of the safety code or other regulations and made no recommendation.

Dunigan presented testimony from two experts who claimed the design and manufacture of the crane was defective or unsafe. Since the remote control device was not insulated, it created a dangerous condition for the user. They stated that protection could have been easily and inexpensively provided. They also testified that Auto Crane had a patent on a "proximity differential control" device designed to be installed on cranes to prevent contact and electrical shock.

Dunigan cites five Kentucky cases which recognize the proposition that contributory negligence is generally held to be a question for the jury. Each case is distinguishable for one reason or another. In Kentucky-Tennessee Light & Power Co. v. Priest's Adm'r, 277 Ky. 700, 127 S.W.2d 616 (1939), the danger was not obvious and the utility company erected the low-voltage wires across the lot where a shovel was operating. Priest had the right to assume that the wires were properly insulated when he attempted to move them. In Green River Rural Electric Cooperative Corp. v. Blandford, 306 Ky. 125, 206 S.W.2d 475 (1947), the high-tension wires were obscured in tree branches, and the plaintiff was not contributorily negligent when he pulled a pipe from a well and allowed...