Mickles v. Duke Power Co.

• Decision Date: 03 November 1995
• Docket Number: No. 433PA94,433PA94
• Parties: Deborah Robertson MICKLES, Individually, and as the Administratrix of the Estate of Fred David Mickles v. DUKE POWER COMPANY, Klein Tools, Inc., and Buckingham Manufacturing, Inc.
• Court: North Carolina Supreme Court

Page 206

463 S.E.2d 206

342 N.C. 103

Deborah Robertson MICKLES, Individually, and as the Administratrix of the Estate of Fred David Mickles v. DUKE POWER COMPANY, Klein Tools, Inc., and Buckingham Manufacturing, Inc.

No. 433PA94.

Supreme Court of North Carolina.

Nov. 3, 1995.

Robinson Maready Lawing & Comerford, L.L.P. by William F. Maready and Clifford Britt, Winston-Salem, for plaintiff-appellee.

Duke Power Company by W. Edward Poe, Jr., and Jeff D. Griffith, III, Charlotte; and Adams Kleemeier Hagan Hannah & Fouts by Daniel W. Fouts, W. Winburne King III, and Edward L. Bleynat, Jr., Greensboro, for defendant-appellant Duke Power Co.

WHICHARD, Justice.

On 6 March 1992, plaintiff Deborah Mickles ("plaintiff"), individually and as the administratrix of the estate of her husband, Fred David Mickles ("Mickles"), filed suit against defendant Duke Power Company ("defendant") seeking to recover damages for the on-the-job death of Mickles. Plaintiff has voluntarily dismissed her action against the other two defendants. The complaint alleged that defendant was wilfully and wantonly negligent in: (1) failing to warn and instruct Mickles about the possibility of an equipment failure commonly known as "roll-out"; (2) failing to provide Mickles with back-up safety equipment in the event of such a failure; (3) placing its employees in an ultra-hazardous and dangerous position where an accident resulting in injury or death was substantially certain to occur; and (4) providing equipment to Mickles which defendant knew was substantially certain to fail, thereby causing death or serious injury.

On 26 October 1992, defendant moved for summary judgment, which the trial court granted on 31 May 1993. On plaintiff's appeal, the Court of Appeals reversed. Mickles v. Duke Power Co., 115 N.C.App. 624, 446 S.E.2d 369 (1994). On 2 November 1994, we allowed discretionary review. We now reverse and order the trial court's grant of summary judgment reinstated.

Summary judgment is an appropriate method for disposing of litigation when there is no genuine issue of material fact and the undisputed facts establish that a party is entitled to judgment as a matter of law. N.C.G.S. § 1A-1, Rule 56(c) (1990). Defendant, as the movant, has the burden of establishing that no triable issue of fact exists. Roumillat v. Simplistic Enterprises, Inc., 331 N.C. 57, 62-63, 414 S.E.2d 339, 341-42 (1992). Defendant may meet this burden by showing that an essential element of plaintiff's claim is nonexistent or that discovery indicates that plaintiff cannot produce evidence to support an essential element of her claim. Id. at 63, 414 S.E.2d at 342. For purposes of summary judgment, all inferences of fact must be drawn against the movant and in favor of the nonmovant. Id.

The forecast of evidence in response to defendant's motion for summary judgment showed the following. Mickles was employed as a lineman by defendant and was killed on 7 August 1991 when he fell 102 feet from an arm of a large electric transmission tower. At the time of the accident, Mickles was secured to a ladder by a body belt manufactured by Klein Tools, Inc. ("Klein"), and a pole strap, or safety strap, manufactured by Buckingham Manufacturing, Inc. ("Buckingham"). The body belt was fastened around Mickles' waist, and the pole strap was wrapped around a rung in the ladder and fastened to two D-rings on either end of the body belt. Mickles fell when one of the safety snaps on the pole strap disengaged from a D-ring on the body belt. This phenomenon is known as "roll-out."

The utility industry has known of roll-out for years, but it is a rare occurrence. On only two other occasions since 1975 have defendant's employees been killed or injured because of roll-out. The first of these incidents occurred in 1975, when Paul Hicks fell 125 feet to his death in the vicinity of Hillsborough. An Occupational Safety and Health Administration ("OSHA") investigation into Hicks' death resulted in no citation, as no OSHA standard had been violated. The second incident occurred in South Carolina on 31 July 1990, when lineman Randy Pyatt fell fifty-eight feet and was severely injured. Between the two incidents, defendant's employees worked over eleven million man-hours aloft wearing only a body belt and pole strap combination for fall protection without a single accident involving known or suspected roll-out.

At the time of his injury, Pyatt, like Mickles, was wearing a Klein body belt and a Buckingham pole strap. Pyatt's pole strap was manufactured in 1984, whereas Mickles' strap was issued in 1986. Defendant mixed straps and belts from different manufacturers because it purchased equipment from the lowest bidder on the approved standards list.

Following Hicks' accident, defendant informed its employees about roll-out, instructing them to check the snap hook and D-ring for proper alignment before placing their full weight on the equipment. Defendant also suggested that vendors of the body belts redesign D-rings to make them less susceptible to roll-out. Finally, defendant investigated the possibility of using "double locking safety snaps," which require two distinct motions to disengage the snap, but it concluded that these snaps were more dangerous than single-locking snaps because linemen wearing rubber gloves needed both hands to unhook the snap before moving and rehooking. Although defendant made double-locking snap hooks available to linemen, few actually used them.

Following Pyatt's accident, two of defendant's employees, Dee Putnam and John Francis, inspected Pyatt's body belt and safety strap. Francis then wrote two memoranda to defendant's legal department in which he summarized his findings. Because experts would testify that safety strap snap hooks and D-rings made by different manufacturers are not always compatible, Francis suggested that two engineers of his choosing examine belts and straps for mix/match compatibility. He further suggested that defendant not pursue a fall-arrest system at that time for several reasons. According to Francis, if defendant were to adopt a fall-arrest system, this would indicate to linemen that roll-out was a "recognized hazard." In addition, suggesting the necessity of a fall-arrest system would be in direct conflict with what defendant and other electric utility companies had pleaded before the federal OSHA panel when it was formulating safety regulations. Putnam disagreed with Francis' suggestion that defendant not pursue a fall-arrest system.

In his second memorandum, Francis noted that tests on Pyatt's body belt and pole strap revealed that roll-out would not occur when the safety strap remained untwisted. When Pyatt's safety strap was tested using four other manufacturers' D-rings, roll-out did not occur whether the strap was twisted or untwisted. However, testing with Pyatt's Buckingham body belt revealed that whenever the pole strap became twisted, the snap hook would invert, the snap hook keeper would lodge against the inside of the D-ring, and the D-ring would disengage from the snap hook whenever body pressure was placed upon the connection. Later testing of Mickles' equipment provided similar results.

On 16 October 1990, Francis took Pyatt's equipment to Buckingham's Binghamton, New York, facility for testing. Buckingham issued a safety notice later that month which recalled Buckingham safety straps manufactured from 1982 through 1984. Defendant fully complied with the recall. In addition, defendant issued a safety alert regarding roll-out; sent written and verbal reports to Mickles' crew concerning Pyatt's accident; and conducted equipment inspections of all belts and straps in January, May, and July 1991. Mickles' equipment was inspected on each occasion.

In late 1990, defendant began investigating the possibility of obtaining more effective fall protection equipment for its transmission linemen. Defendant worked with a foreign company in an effort to custom design a safety harness. At that time, the body belt and pole strap combination was the only feasible means of fall protection for transmission linemen in the country.

Defendant was not cited for OSHA violations after either Hicks' or Pyatt's accident. Following Mickles' accident, defendant inspected Mickles' equipment and found it to be in compliance with all applicable OSHA regulations. The North Carolina Department of Labor ("NCDL") nevertheless conducted an investigation. Carl Collins, the NCDL inspector, asserted in his affidavit that before Mickles' death, manufacturers of fall protection equipment recommended in their catalogs that body belts and pole straps not be used for fall protection because of the potential incompatibility of belts and straps made by different manufacturers. Collins asserted that defendant was aware of this problem but merely requested its linemen to inspect the connection while working. Defendant was also aware that additional safety devices were available, but it did not require its workers to use such devices. According to Collins, prior to Mickles' death defendant had not educated or trained its linemen on how to inspect their body belts and pole straps to determine whether roll-out was possible. However, Mickles apparently received such training before his fall, as his initials appear on a copy of the 1990 Pyatt accident report.

Following the investigation, Collins cited defendant for wilful violations of 29 C.F.R. § 1910.132(a) and (c). Administrative Law Judge Carroll Tuttle, an OSHA hearing examiner, dismissed the alleged violation of subsection .132(a). Tuttle further rejected the NCDL's charges of wilfulness regarding defendant's violation of subsection .132(c), determining that the violation had been "serious" but not wilful. In so finding, Tuttle determined that defendant did not purposely expose its employees to the hazard of roll-out. Tuttle noted that the equipment defendant provided was the equipment provided...