Lovell v. Oahe Elec. Co-op.

• Decision Date: 20 March 1986
• Docket Number: No. 14497,14497
• Parties: Roger LOVELL; Earl Lovell and Blanche Lovell, husband and wife, Plaintiffs and Appellees, v. OAHE ELECTRIC COOPERATIVE, Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 396

382 N.W.2d 396

Roger LOVELL; Earl Lovell and Blanche Lovell, husband and wife, Plaintiffs and Appellees, v. OAHE ELECTRIC COOPERATIVE, Defendant and Appellant.

No. 14497.

Supreme Court of South Dakota.

Argued Nov. 27, 1984.

Decided Feb. 12, 1986.

Rehearing Denied March 20, 1986.

Thomas M. Maher of Maher, Carter & Bode, Pierre, for plaintiffs and appellees.

E.D. Mayer of Riter, Mayer, Hofer & Riter, Pierre, and Leo P. Flynn, Milbank, for defendant and appellant.

FOSHEIM, Chief Justice (on reassignment).

Defendant Oahe Electric Cooperative (Coop) appeals from a judgment rendered against it in favor of Plaintiffs Earl, Blanche, and Roger Lovell (Lovells). We reverse.

In May, 1980, Coop constructed a high voltage line across Lovell's farm. This line was twenty-seven feet, two inches above the ground and set off about five or six feet east of an existing well. In October, 1981, Earl and Roger were pulling a pipe and rod from the well when it came in contact with the transmission line. Earl and Roger were holding the pipe when it touched the line and received severe burns. A jury awarded Lovells $115,902 for personal injuries and property damage.

Coop initially contends that since it complied with the minimum standards of the National Electrical Safety Code (NESC), it could not be negligent as a matter of law. ¹ Coop's experts testified that all requirements of the NESC code were complied with during construction of the transmission lines. Lovell's expert testimony indicated that Coop violated three separate sections of the NESC ² and that alternatives in construction of the lines were available which would have complied with the safety purposes of the NESC.

Coop's argument, that if it did not violate any standards of the NESC when it constructed the electric line then there is no negligence on its part, is less than correct. As a general rule "where a particular statutory or regulatory standard is enacted to protect persons in the plaintiff's position or to prevent the type of accident that occurred, and the plaintiff can establish his relationship to the statute, unexplained violation of that standard renders the defendant negligent as a matter of law." Weeks v. Prostrollo Sons, Inc., 84 S.D. 243, 248, 169 N.W.2d 725, 728-29 (1969) (quoting Richardson v. Gregory, 281 F.2d 626 (D.C.Cir.1960)). This is true provided the violation is the proximate cause of injury to the person for whose protection the statute or ordinance was enacted. Alley v. Siepman, 87 S.D. 670, 674, 214 N.W.2d 7, 9 (1974). The distinction between mere "evidence of negligence" and "negligence per se" is very marked in that with the former there must be an adjudication as to whether or not the statute violation constitutes negligence whereas in the latter, negligence necessarily follows proof of the violation. Weeks, 84 S.D. at 249, 169 N.W.2d at 729 (quoting Kelly v. Huber Baking Co., 145 Md. 321, 335-40, 125 A. 782, 788 (1924)).

In Albers v. Ottenbacher, 79 S.D. 637, 116 N.W.2d 529 (1962), we said:

Negligence is the breach of a legal duty. It is immaterial whether the duty is one imposed by the rule of the common law requiring the exercise of ordinary care or skill not to injure another, or is imposed by a statute designed for the benefit of a class of persons which included the one claiming to have been injured as the result of nonperformance of the statutory duty. The measure of legal duty in the one case is to be determined upon common law principles, while in the other the statute fixes a standard by which the fact of negligence may be determined.

Id. at 641, 116 N.W.2d at 531.

Under common law, negligence is the failure to exercise ordinary care under the circumstances. Wittmeier v. Post, 78 S.D. 520, 526, 105 N.W.2d 65, 68 (1960). Ordinary care is that which an ordinarily prudent or reasonable person would exercise under the same or similar circumstances. Granflaten v. Rohde, 66 S.D. 335, 339, 283 N.W. 153, 155 (1938). It is commensurate with existing and surrounding hazards. Id. The greater the danger, the greater is the care required, so that a very high degree of danger calls for a very high degree of care, which, however, amounts to ordinary care in view of the situation and circumstances. Id. The settled law in South Dakota, as evidenced by Ward v. LaCreek Electric Association, Inc., 83 S.D. 584, 163 N.W.2d 344 (1968), is that the distributor of electrical energy must exercise ordinary and reasonable care under all the circumstances to prevent injury.

Pursuant to SDCL 47-21-75, the NESC provides the minimum requirements an electric cooperative must meet in construction of transmission lines. Although both parties' experts agreed there was no specific section of the NESC dealing with construction of lines near wells, Lovells claim the Coop violated the purposes and intent of the safety code by constructing the line near a well. We do not agree.

National Electrical Safety Code Rule 200 states that the Code was not intended as a design specification, but rather a practical safeguard in accordance with accepted practice for given local conditions. In other words, it is to accommodate the realistic use of electric power on farms and ranches in rural areas. This necessarily contemplates the construction and operation of overhead electric lines in the proximity of silos, wells, grain bins, irrigation pivots, and other areas where the use of elevated equipment is often required.

The position of Lovells would in effect impose strict liability upon the Coop and make it an insurer for the safety of the user. This we have declined to do. Ward, 83 S.D. at 590-91, 163 N.W.2d at 347.

Proof of compliance with the standards furnished by the NESC, however, is not conclusive on the trier of fact on the question of defendant's due care. Actionable negligence may exist even though the utility involved complied with the requirement of the safety code. Nelson v. Iowa-Illinois Gas & Electric Co. 160 N.W.2d 448 (Iowa 1968); see also Wray v. Benton County Public Utility District, 9 Wash.App. 456, 513 P.2d 99 (Wash.Ct.App.1973); compare Foreman v. Atlantic Land Corp., 271 S.C. 130, 245 S.E.2d 609 (1978). What constitutes due care and other questions relating to negligence and contributory negligence are generally questions of fact for the jury. Hitzel v. Clark, 334 N.W.2d 37, 38 (S.D.1983); Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983). That deference, however, is not absolute.

Under our comparative negligence statute ³ a plaintiff may recover if his negligence was slight in comparison with the negligence of the defendant. SDCL 20-9-2. When facts show that the plaintiff, beyond reasonable dispute, was guilty of negligence more than slight, it is the function of the trial court to hold, as a matter of law, for the defendant. Starnes v. Stofferahn, 83 S.D. 424, 432-33, 160 N.W.2d 421, 426 (1968). The comparison is made with the negligence of the defendant, rather than with the ordinarily prudent person. Crabb v. Wade, 84 S.D. 93, 97-98, 167 N.W.2d 546, 549 (1969). However, the norm of conduct of an ordinary, reasonably prudent person must be considered in determining the extent to which each party fell below that standard and, thus, was found negligent or contributorily negligent. Nugent v. Quam, 82 S.D. 583, 594-95, 152 N.W.2d 371, 377 (1967).

In Associated Engineers, Inc. v. Job, 370 F.2d 633 (8th Cir.1966), which also involved electric power lines, the Eighth Circuit Court of Appeals, following decisions of this court, said:

[T]hree factors may properly be considered in appraising the quality of a plaintiff's negligence: the precautions he took for his own safety; the extent to which he should have comprehended the risk as a result of warnings, experience, or other factors, and the foreseeability of injury as a consequence of his conduct.

Id. at 641. When these factors are applied to the undisputed facts it is difficult to envision how Roger and Earl could have been more negligent. The record has been searched in vain for a single measure they took for their own safety. The reader is left only with sympathy and compassion. They were intimately familiar with the location of the well, the height of the transmission line and the depth of the well. They fully comprehended the hazard created when grounded metal contacts an electric line. They did precisely what Coop had publicly warned people not to do, warnings which Earl acknowledged he had seen. A simple phone call to Coop would have caused the current to be cut while the well pipes were pulled. There was no evidence questioning the actual construction or maintenance of the poles or line.

Assuming the issue was properly before the jury, the trial court correctly instructed the jury concerning the standard of care as recommended by this court in Ward, 83 S.D. at 590-91, 163 N.W.2d at 342. The trial court, however, should have directed a verdict for Coop because reasonable minds could but conclude as a matter of law that the Lovells' negligence was more than slight in comparison with any negligence of the Coop. Under these facts, to hold otherwise would effectively invalidate the comparative negligence statute.

Coop also claims that Lovells assumed the risk in choosing to pull the well pipe near a functioning transmission line without uncoupling the sections. The question of whether a plaintiff assumed the risk, like contributory negligence, is ordinarily a jury question. Berg v. Sukup Manufacturing Co., 355 N.W.2d 833, 835 (S.D.1984).

The jury was correctly instructed on the issue of assumption of the risk:

It is the law that a person cannot be heard to complain of a dangerous condition, situation or conduct when such person with knowledge thereof voluntarily places himself in a position or voluntarily continues in a position wherein he knows of hazard of injury or damage to himself from such dangerous condition, situation or conduct. In such a case, such person is...