Koch v. NORRIS PUBLIC POWER DIST.
| Decision Date | 21 August 2001 |
| Docket Number | No. A-00-375.,A-00-375. |
| Parties | Verdell KOCH and Priscilla Koch, husband and wife, Appellants, v. NORRIS PUBLIC POWER DISTRICT, Appellee. |
| Court | Nebraska Court of Appeals |
Elizabeth A. Govaerts, of Vincent M. Powers & Associates, Lincoln, for appellants.
Douglas J. Peterson, of Knudsen, Berkheimer, Richardson & Endacott, Lincoln, for appellee.
Verdell Koch (Koch) and Priscilla Koch sued the Norris Public Power District (Norris) for damages they suffered from a fire that started when a high voltage powerline maintained by Norris fell into their field and started a fire. The Koches appeal from the trial court's order granting a directed verdict in favor of Norris upon the basis that the doctrine of res ipsa loquitur did not apply to establish Norris' negligence as the cause of the powerline falling. We conclude that the facts in this case do establish a prima facie case under res ipsa loquitur on Norris' negligence, and therefore we reverse, and remand for a new trial.
The Koches sued Norris under the State Tort Claims Act, Neb.Rev.Stat. § 81-8,209 et seq. (Reissue 1996). Norris did not dispute that the powerline fell and started the fire on October 26, 1996. Norris stipulated that the fire burned 86.6 acres of the Koches' field and did at least $41,243.25 in damages by burn-ing the Koches' corn and other property. There is evidence of additional damages to which Norris did not stipulate, but since this appeal is concerned only with liability, we shall not summarize that evidence. There is little if any dispute over the facts, only their legal significance. Only two witnesses, Koch and Kevin Pollard, a Norris engineer, testified at trial.
The Koches live on their 500-acre farm in rural DeWitt, Nebraska. Koch was 50 years of age at the time of trial, and he had lived on that farm his entire life. The powerline from which the line fell was south of the Koches' farmstead, and the break occurred about three-fourths of a mile from that farmstead. Photographs of the powerline show it to be a two-wire line on wooden poles with each line attached to the pole by insulators with one line being approximately a yard above the other. Other photographs show two parallel powerlines in the air with visible splices evidencing that a length of wires of unknown length, but at least several feet in length, was spliced into one line. Answers to request for admissions show the distance between the two poles where the line broke was 325 feet.
Pollard had worked for Norris as an engineer for 16 years. Through him, Norris introduced a strand of wire which Pollard testified was like the powerline that fell. This line is composed of several strands of aluminum wire wrapped around a steel core. Pollard testified the wire gets its strength from the steel core. A photograph of a frayed powerline in the area that was still in its place was introduced into evidence for demonstrative purposes. This photograph showed some of the strands of the powerline were parted. Pollard testified that the damage displayed by this photograph was done by vandals (apparently with a bullet). He testified that the damaged wire remained in place because the steel core was still intact and only the aluminum strands were parted.
Koch testified that he saw the powerline approximately 2 days before the fire and did not observe any problems. He testified that the weather shortly after noon on October 26, 1996, just before the fire, was sunny and windy. He estimated the wind was blowing at 40 miles per hour. He was working on a grain bin which was situated about 2 miles from where the fire occurred when he noticed that the bin's fan stopped running and that power went out at the farmhouse too. He saw black smoke rising from the field approximately 2 miles south. He called the fire department, and the fire was put out, but not before it did considerable damage. He admitted that he had no direct knowledge of the cause of the powerline's breaking.
Koch had never seen weather factors damage the lines along the field, but he admitted that he remembered tornadoes and ice storms which had caused damage to powerlines in the past. On October 26, 1996, dove and squirrel hunting seasons were open, but Koch had not seen any hunters or anyone else shooting at the powerlines that day or the day before. He does not drive the road in the area every day, but he did not see any cars in the area. He admitted that he had previously seen where vandals had shot at signs and powerlines in the past. After the fire, he did not observe any rifle or shotgun shells in the area of the burned field.
After the fire, Koch discussed the fire with Glen Schmieding, the "[h]ead of Norris Public Power." Schmieding admitted to Koch that a Norris powerline fell down and caused the fire. Koch asked Schmieding if Norris had saved the line that fell. Schmieding called the Norris office. It took Norris employees some time to respond, but Koch was told that the broken line had been found in a Dumpster. Koch was later told that this line was destroyed by testing. (There is no evidence showing which tests were performed and for what purposes.)
Pollard's department inspected the fallen powerline. Pollard examined the ends of the wire that broke. The damage was "pretty much smoke." The end of the conductor was "burned." The aluminum wire was "smoky." "Most of [the] damage that [he] saw was external, and [he] would assume [the damage occurred] after the fire on the ground." He testified that the condition of the wire prevented him from determining whether the damage had been caused by a bullet and that the condition of the wire made it impossible to determine whether or not vandals had caused the line to fall. He could not establish one way or the other whether the damage was caused by vandalism.
Through the introduction of answers to requests for admissions, it was established that Norris' inspection of the line was "ongoing," but the last time the line had been "formally" inspected was November 19, 1996. Pollard admitted that powerlines do not ordinarily fall down and that something has to happen to cause them to fall down. He admitted that it is up to Norris to take care of and maintain the poles, the conductor, and the wires. Norris tells its customers not to climb the poles, and it is common knowledge that they do not do so. No one else is allowed to have any control over the wire. All maintenance of the wire is done by Norris, and inspection is done by an outside contractor. Koch testified that he had never seen anyone climbing those poles except employees of Norris.
Pollard admitted that there was no visible vandalism to the wire or any damage to the wire and that something normally causes lines to fall. Pollard testified that such events sometimes occur as the result of vandals or hunters shooting at the towers and powerlines. He further testified that Norris experiences approximately three outages per year due to vandals and hunters shooting at powerlines. As an example, Pollard explained that approximately 1 month before trial, vandals had shot down a powerline 11 miles north of the Koches' farmstead and that this resulted in an outage. He added, however, that not all acts of vandalism result in full outages. On cross-examination, Pollard admitted that he did not know whether any vandalism had been reported in the area of the Koches' farmstead before the incident leading to the present litigation. Norris did not treat the Koches' fire as vandalism because it could not tell from the burned line whether vandals were involved in the damage to the powerline.
After Koch's testimony, the Koches rested and Norris made a motion for directed verdict. The Koches had alleged specific acts of negligence and res ipsa loquitur as theories of recovery, and the trial court sustained the motion as to the negligence portion of the petition, but it reserved ruling on the res ipsa loquitur claim and took the matter under advisement. Norris proceeded to present its evidence through Pollard's testimony. After both sides rested, Norris renewed its motion for a directed verdict. The trial court took the matter under advisement and later entered a written order granting Norris' motion for directed verdict. The trial court found that insufficient evidence was introduced to prove Norris had exclusive control of the powerlines and that the incident would not have occurred without negligence by Norris. The Koches now appeal.
The Koches allege the trial court erred in (1) finding insufficient evidence that the powerline was in Norris' exclusive control and the incident would not have occurred without Norris' negligence and (2) requiring the Koches to show there was no possibility that a third party rather than Norris caused their injuries and further to conclusively rule out other reasonable possibilities for the powerline falling.
The court in Haag v. Bongers, 256 Neb. 170, 181-82, 589 N.W.2d 318, 328 (1999), stated:
In reviewing the action of a trial court, an appellate court must treat a motion for a directed verdict as an admission of the truth of all competent evidence submitted on behalf of the party against whom the motion is directed. Such being the case, the party against whom the motion is directed is entitled to have every controverted fact resolved in its favor and to have the benefit of every inference which can reasonably be deduced from the evidence.... A directed verdict is proper at the close of all the evidence only where reasonable minds cannot differ and can draw but one conclusion from the evidence, that is to say, where an issue should be decided as a matter of law.
(Citations omitted.)
The Koches submitted their entire case under a theory of res ipsa loquitur.
Res ipsa loquitur operates as a type of circumstantial evidence,...
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