Liscombe v. Potomac Edison Co.

• Decision Date: 01 September 1984
• Docket Number: No. 148,148
• Citation: 303 Md. 619,495 A.2d 838
• Parties: Robert D. LISCOMBE v. The POTOMAC EDISON COMPANY et al. ,
• Court: Maryland Court of Appeals

Page 619

303 Md. 619

495 A.2d 838

Robert D. LISCOMBE v. The POTOMAC EDISON COMPANY et al.

No. 148, Sept. Term, 1984.

Court of Appeals of Maryland.

July 23, 1985.

Hans S. Goerl and Scott L. Schubel, Hagerstown (Wachs, Boone, Goerl & Bannon, P.A., Hagerstown, on brief), for appellant.

John H. Bolgiano, Baltimore (Smith, Somerville & Case, Baltimore, on brief), for appellee, The Potomac Edison Co.

William J. Foote, Jr., Rockville (Francis J. Ford and Ford & O'Neill, Rockville, on brief), for appellee, The Hagerstown Block Co.

Argued before MURPHY, C.J., SMITH, ELDRIDGE, COLE, RODOWSKY and McAULIFFE, JJ., and W. ALBERT MENCHINE, Associate Judge of the Court of Special Appeals (retired), Specially Assigned.

W. ALBERT MENCHINE, Judge, Retired Specially Assigned.

Robert D. Liscombe (Liscombe) filed suit in the Circuit Court for Washington County against Potomac Edison Company (Potomac) and Hagerstown Block Company (Hagerstown) for compensatory and punitive damages for electric shock injuries allegedly caused by the gross negligence of the defendants. In due course separate motions for summary judgment were filed by Potomac and by Hagerstown on the ground that there was no genuine dispute as to any material fact and that each was entitled to judgment because Liscombe was guilty of contributory negligence as a matter of law.

The trial court granted the motions of Potomac and Hagerstown, declaring in the course of a memorandum opinion: "We find as a matter of law that Plaintiff is guilty of contributory negligence." Liscombe appealed to the Court of Special Appeals. We granted certiorari before consideration by that Court.

Liscombe makes three contentions on appeal, namely:

1. The circumstances are such that the issue of contributory negligence properly is a matter for determination by the trier of facts,

2. Alternatively, that contributory negligence is not a defense where the tort, as here contended, is based upon alleged wanton or reckless conduct, and

3. Alternatively, that Potomac and Hagerstown are liable under the doctrine of last clear chance.

1. Contributory negligence as a matter of law

Maryland Rule 2-501 authorizes the trial court to grant summary judgment when there is no genuine dispute as to any material fact and the party in whose favor judgment is entered is entitled to judgment as a matter of law. In the subject case the trial judge found that there was no genuine dispute as to any material fact and entered summary judgment against Liscombe. On review we are concerned with whether there was a dispute as to any material fact and if not, whether the moving party was entitled to judgment as a matter of law. In considering the duly shown facts, all reasonable inferences deducible therefrom must be considered in a light most favorable to the party opposing the motion and against the party making the motion. Washington Homes v. Inter. Land Dev., 281 Md. 712, 717-18, 382 A.2d 555, 557-8 (1978) and cases there cited.

The undisputed facts are these:

Potomac installed, operates and maintains high voltage lines that pass over the rear lot line of premises occupied by Hagerstown. The land occupied by Hagerstown has been utilized in the conduct of a ready mix concrete plant since 1975. The land contains buildings and equipment for the mixing of various components used in the industry.

Storage facilities on the land consisted of bins for the storage of those components and an area in the rear of the land for the dumping of such materials when the bins were full. This dumping area included a section that lay under the high voltage lines.

Materials were brought to the scene by trucks of two types: (1) ordinary dump trucks with body affixed to the truck itself, and (2) tractor-trailer dump trucks. The overhead lines formed no threat to the ordinary dump truck when its body was elevated to deposit materials on the stock pile. Tractor-trailer dump trucks, however, when elevated to unload the materials contained in the trailer, reached a height where contact between its body and wires could occur.

The precise height of the wires from the ground does not appear from the record.

When elevated, the bed would reach the high voltage line. That line consisted of an uncharged lower ground wire with three charged lines above it. At the time of Liscombe's injury flags had been placed on the lines to provide greater visibility to the lines by persons at ground level.

Liscombe had made deliveries to the Hagerstown site on 15 to 20 previous occasions. He acknowledged that he was aware of the existence of the power line at the point where the material was being dumped and would not deny that Hagerstown employees had on several occasions warned him "about the danger of the overhead wires." On November 25, 1981, Liscombe delivered a load of sand to the Hagerstown premises. Observing that the storage bins were full he proceeded to the material storage area. At that time the stock pile was somewhat depleted with the result that the loading edge of the materials pile lay directly under the wires.

The deposition of Liscombe shows that he backed the tractor-trailer into the pile. He got out of the tractor, stood facing its front and put the lever ¹ in motion that let the bed up, watching as it did so. He reached to stop the bed from going up so he could pull forward and continue raising it. He woke up in the hospital. He did not hold onto the lever during the ascent of the bed because "all [he] had to do was reach over and tap it and it would have went neutral or went all the way forward and dropped down." He did not know how close the bed got to the electric line when he decided he had better stop its ascent, acknowledging that he "knew it was getting up there and [he] had to stop it." He did not have his hand on the lever when he made the decision to stop the ascent of the bed because it was just within an arms length. He denied that he waited too long before stopping the ascending bed declaring that "when [he is] raising a bed, [he was] right there. And the slightest little thing doesn't look right, she comes down." At the time he went to stop the bed from ascending he did not know how far the bed was from the wire saying that "[He] don't even remember seeing the wires," adding that "stuff on that day is very blurry." He testified that he was told "there was no way that [he] could have seen whether the bed was in the wires because the sun was right there. The sun was hitting the wires, shining down to the wires through to the bed." He knew the wires were there. He was trying to keep the bed from getting too close to the wires and guessed that he "just didn't stop it in time." He did not know whether the bed touched the wire. He assumed that it would be dangerous to hit the wires with the truck. In the course of his deposition he gave this further account of the events immediately preceding his injury:

"Q. And when you backed your truck to dump it onto the stockpile, did you raise the bed of the dump truck up so that it came in contact with the wire?

A. I raised the bed up, but I wasn't--I mean I didn't realize that the bed had come in contact with the wires.

* * *

* * *

Q. And you would agree that, because you got your shock, your dump truck hit the wire.

A. I don't know. I heard a couple of stories on that, so I don't know.

Q. What stories?

A. I heard that--like I say, I don't know that much about electricity, so I am just going by what I heard. I heard that the bed was possibly was drawn to the wires. Now, I don't know whether there is any truth to this or not. I don't know.

* * *

* * *

Q. That's really the only rumor.

A. Yes, sir.

Q. Or story you heard. Well, let me put it this way: whether the electric wire drew the bed into the wire or the bed was raised to the wire, somehow or another the bed and wire came together; is that right?

A. As far as I know."

Disputed Facts

Liscombe contends that disputed facts in three areas compel determination by the trier of facts of the question whether he was guilty of contributory negligence, namely: (a) whether he had knowledge of a similar incident prior to the date of his injury, (b) whether the electrical charge entering his body through the trailer body was the result of actual contact with the wires or was produced by an arcing effect without such contact, and (c) whether the glare of sun light affected Liscombe's vision concerning the position of the rising body of the trailer viz-a-viz the charged wires.

a.

Prior knowledge of similar incident

In the course of his deposition, Liscombe gave the following testimony:

"Q. Well, you know that one of the men there, one of the truck drivers there had gotten a shock some weeks before you did.

A. I learned of that after my accident."

In a deposition, William Luther, the victim of the earlier episode testified that he spoke to Liscombe immediately before the latter's injury and thus described the conversation:

"Q. I want you to tell me to the best of your recollection, everything you said to him and everything he said to you at that time.

A. I remember saying, 'Don't fry your ass.' If you want to know what I say exactly, cause I had just done it, I said: 'Dump out far enough so you don't get into the wires,' He said: 'Don't worry about me.' "

Liscombe filed a subsequent affidavit in which he stated:

"I have no recollection of William R. Luther, Jr. (Chipmunk) telling me on the day of my accident 'Don't fry your ass.' I have no recollection of Mr. Luther making any comments to me at all about the wires and their danger, and I am almost certain that he did not. I did not know at any time before my accident that Mr. Luther had had an electrical accident at the same location."

b.

Arcing of the electrical charge

Doyle Sowers, an employee of Hagerstown testified that the trailer bed had gone through the bottom (ground) wire and was touching the top wires. The testimony of Liscombe in his deposition...