Martel v. Montana Power Co.
| Decision Date | 05 April 1988 |
| Docket Number | No. 85-251,85-251 |
| Citation | 231 Mont. 96,752 P.2d 140,45 St.Rep. 460 |
| Parties | Terry Hawthorne MARTEL, Plaintiff and Appellant, v. MONTANA POWER COMPANY, Defendant and Respondent. |
| Court | Montana Supreme Court |
R. Keith Strong (argued), Church, Harris, Johnson & Williams, Great Falls, for plaintiff and appellant.
Lon T. Holden (argued), and Curtis G. Thompson (argued), Great Falls, for defendant and respondent.
Eric Thueson, Helena, for amicus curiae, Rowan Ogden.
Plaintiff Martel appeals the jury's special verdict finding the defendant Montana Power Company (MPC) 25% negligent; himself 75% negligent; and setting his damages at $290,000. He also appeals the order denying his motion for a new trial.
We affirm in part, reverse in part and remand with instructions.
The following issues were raised on appeal:
1. Did the trial court err when it declined to instruct the jury that contributory negligence is not a defense to willful and wanton misconduct?
2. Did the trial court destroy the protection of the National Electrical Safety Code (NESC) when it:
a) gave only one instruction on the NESC and refused several others on specific NESC provisions b) instructed the jury that comparative negligence was a defense under these circumstances?
c) failed to instruct the jury that the NESC was only a minimum standard?
3. Did the trial court err when it refused to tell the jury the effect of comparative negligence on its verdict?
4. Did the trial court err when it allowed into evidence an interpretation of a construction standard which MPC did not have and had not used for design until the time of trial, and which had been received from its counsel just before trial?
5. Did the trial court err in allowing MPC to use the expert testimony of an employee involved with the suit months before trial, but identified only seven days before trial, when another expert had been identified as the power company's primary expert and when appellant declined to make use of a continuance the trial court offered him?
6. Did the trial court err in granting MPC's motion to dismiss appellant's claim charging MPC with misrepresentation and bad faith under both the common law and the Unfair Trade Practices Act for its method of investigating and adjusting this accident?
On July 7, 1979, Terry Martel suffered permanent injuries as a result of being electrocuted when some portion of his body came within a few inches of an electric power transmission line carrying 100,000 volts. Martel testified that he had two beers with friends after they arrived at the old Piedmont Substation south of Whitehall, Montana. Martel was 19 at the time of the accident. The substation sits at the end of a short road off a county roadway.
After one other person climbed the tower, Martel also climbed it. A dispute in the facts exists as to whether Martel reached out to the line but the evidence is clear he did not touch the line. In any event, his proximity to the line caused electricity from the line to arc to his body causing serious injury.
The substation has a tower which supports the transmission line. The tower is crossed with metal brackets and sits on top of a concrete footing sunk in the ground. To climb it one must take a step from the ground to the footing, then to a bracket 17"' from the concrete footing, then to another bracket 2' 3 3/4"" above, then to a bolt step 4' 6 1/4"' above that. Beyond that is a series of bolt steps leading to the top of the tower. No barricades surrounded the tower. A wooden sign was near the tower. The sign had been painted over but the word "danger" was still visible.
The Milwaukee Road built the substation prior to 1920 and MPC acquired it in 1974. MPC employees drove by the tower site at least once a month to examine the site. One employee and the Whitehall town marshal Rand McLester offered testimony that neither had ever seen children or any other unauthorized people on the tower.
Issue 1. Did the trial court err when it refused an instruction that contributory negligence is not a defense to willful or wanton misconduct?
Near the end of the plaintiff's case-in-chief the trial court ruled that plaintiff established a prima facie case of willful or wanton misconduct on the part of defendant power company. Although the court instructed the jury that they could find that MPC had acted willfully or wantonly, the court refused plaintiff's proposed instruction that comparative negligence was not an issue if they found the defendant had acted willfully or wantonly. The trial court correctly refused this instruction.
We said in Derenberger v. Lutey (1983), 203 Mont. 485, 674 P.2d 485, 487-88, 40 St.Rep. 902, 906, that comparative negligence is inapplicable when the action is based on willful and wanton misconduct. In that case, we made a distinction between conduct that is willful and wanton and conduct that is merely negligent. When the defendant's conduct is willful and wanton, the plaintiff's own mere negligence could not be used to offset his recovery. We now conclude that this distinction is faulty and expressly overrule Derenberger.
Prior to the enactment of comparative negligence, the rule preventing comparison of willful and wanton conduct and mere negligence served to ameliorate the harshness of the defense of contributory negligence which would bar all recovery to the plaintiff. Fortunately, we now operate under a scheme of comparative negligence where there is no danger of a plaintiff's slight negligence barring all recovery against a willful and wanton or grossly negligent defendant. See Sec. 27-1-702, MCA as enacted in 1975 and amended in 1983. The rationale for the rule in Derenberger no longer exists.
It is more appropriate, then, as Justice Gulbrandson pointed out in his concurring and dissenting opinion in Derenberger, to adopt the interpretation from the state where our comparative negligence statute originated. The Wisconsin Supreme Court ruled that negligence in all its forms, gross, willful and wanton or ordinary, can be compared to and offset by each other under its comparative negligence statute. Bielski v. Schulze (1962), 16 Wis.2d 105, 114 N.W.2d 105, 111-114. In 1975, Montana adopted the Wisconsin statute. We hold, therefore, that all forms of conduct amounting to negligence in any form including but not limited to ordinary negligence, gross negligence, willful negligence, wanton misconduct, reckless conduct, and heedless conduct, are to be compared with any conduct that falls short of conduct intended to cause injury or damage. The trial court is affirmed on this issue.
Issue 2. Did the trial court destroy the protections of the NESC when it:
a) gave only one instruction on the NESC and refused several others on specific NESC provisions?
b) instructed the jury that comparative negligence was a defense under these circumstances?
c) failed to instruct the jury that the NESC was only a minimum standard?
Appellant Martel argues that failure to give the comparative negligence instruction as well as failure to give several other instructions regarding specific NESC provisions resulted in destroying the protections provided by the NESC. We agree with appellant's position that plaintiff's instructions no. 14 and 15 should have been given and, further, that the jury should have been instructed that the NESC was only a minimum standard. However, we agree with the trial court that the jury should have been instructed on comparative negligence as a defense under these circumstances.
2a.
Since 1917, the legislature has incorporated the NESC in one form or another into the Montana statutes and requires utilities in Montana to construct, install and maintain lines and equipment so as to reduce hazards to life as far as practicable. Section 69-4-201, MCA. A look at previous versions of Sec. 69-4-201 shows the legislature has also used the terms "future construction" since 1917. Since then the NESC has addressed the areas of electrical regulation involved in this case. Utilities, including MPC have understood it to be their duty to follow these standards. MPC witnesses testified they understood that a violation of these standards is contrary to Montana law.
Martel argues that NESC construction standards apply to this case and are controlling. MPC did not build the particular tower in question. However, its engineers testified that when MPC buys a facility, or when it contracts with someone else to build a facility for them, MPC has a duty to inspect to see that the facility complies with the NESC. Appellant's argument is correct.
Appellant claims that plaintiff's instructions no. 12, 13, 14 and 15 were wrongly denied and that the protections of the NESC were thereby destroyed. Instructions no. 12 and 13 were the 1973 NESC version and differed slightly from instructions no. 14 and 15, the 1977 NESC version.
Plaintiff's proposed instructions no. 14 and 15 stated as follows:
No. 14. The Montana Power Company must comply with the National Electrical Safety Code in its construction. Portions of the National Electrical Safety Code reads as follows:
"211. Installation and Maintenance All electric supply and communication lines and equipment supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as is practical.
214. Inspection and Tests of Lines and Equipment
A. When In Service.
Lines and equipment shall comply with these safety rules when placed in service.
Lines and equipment shall be inspected from time to time at such intervals as experience has shown to be necessary.
When considered necessary, lines and equipment shall be subjected to practical tests to determine required maintenance.
Any defects affecting compliance with this code revealed by inspection or tests, if not...
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