Muchhala v. U.S.

• Decision Date: 06 February 2007
• Docket Number: No. 1:05-CV-0863 OWW.,1:05-CV-0863 OWW.
• Citation: 532 F.Supp.2d 1215
• Court: U.S. District Court — Eastern District of California
• Parties: Kant MUCHHALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

Page 1215

532 F.Supp.2d 1215

Kant MUCHHALA, et al., Plaintiffs, v. UNITED STATES of America, Defendant.

No. 1:05-CV-0863 OWW.

United States District Court, E.D. California.

February 6, 2007.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Richard C. Watters, Douglas L. Gordon, Miles Sears and Eanni, Fresno, CA, for Plaintiffs.

Kristi Culver Kapetan, United States Attorney, Fresno, CA, for Defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

OLIVER W. WANGER, District Judge.

I. INTRODUCTION

On May 9, 2004, Jay David Muchhala, a twenty-seven year old man, climbed a high voltage power pole in Yosemite National Park ("Yosemite"). He was electrocuted and died, either as a result of the electrocution or from the resulting fall. Plaintiffs, Jay Muchhala's parents, filed suit against the United States of America, which owns and operates the Park as well as the high voltage electric pole at which the accident occurred. Brought under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq., the complaint alleges (1) negligence and (2) dangerous condition of public property. (Doc. 1, June 30, 2005.)

On August 4, 2006, Magistrate Judge Lawrence J. O'Neill granted the United States' motion for summary judgment with respect to the issue of negligence per se, but denied the "motion as to all other issues. (Doc. 36.) Evidence was taken during a three day bench trial on September 21-23, 2006. (Docs.69-71.) The parties presented oral summations at the close of evidence. The parties were also invited to submit proposed findings of fact and conclusions of law, and did so. (Docs.73, 74.) Having considered all submissions and the arguments of the parties, the following findings of fact and conclusions of law are entered.

II. FINDINGS OF FACT

A. Overview of the Accident.

1. On May 9, 2004, Jay David Muchhala climbed a 30-foot, galvanized steel utility pole (the "accident pole") adjacent to the Four Mile Trail in Yosemite National Park ("Yosemite"). (Agreed Statement of Facts ("ASF") # 3 (Joint Exhibit ("JE") 13.))

2. Jay Muchhala paid admission and was lawfully on the premises of Yosemite. (ASF # 1.)

3. While climbing the accident, pole, Jay Muchhala was electrocuted and died, either as a result of the electrocution, or from the fall from the pole. (Coroner's Report, Plaintiffs' Exhibit ("PE") 180.) Jay Muchhala's head wounds were "also lethal in extent." (Id.)

4. Shortly before the accident, Jay Muchhala wrote in his journal "[c]limbed two electricity towers and am just below the third." (Journal Entry, PE 176)

5. Mr. Muchhala was 27 years old at the time of the accident. (ASF # 7.)

B. The Accident Pole and the Glacier Point Line.

6. The accident pole is one of ten steel poles that form a high voltage electrical distribution line within Yosemite, referred to as the Glacier Point Line. (ASF # 2.)

7. The Glacier Point Line is one of four high voltage power lines operated and maintained by Defendant United States of America within Yosemite. (ASF # 2; Testimony of Kent Summers.)

8. Witnesses testified that the accident pole is located anywhere from 20 to 200' feet from the Four Mile trail. (Testimony of Kent Summers (100-200 feet), Keith Guy (20 feet), Deposition Testimony of Susan Whittier (25-30 feet).)

9. To access the accident pole from the trail, one must scramble down some boulders in a boulder field. (Testimony of Keith Guy, Kent Summers.)

10. The trail is visible from the base of the pole. (Testimony of Keith Guy.) However, the lines and pole are not particularly, noticeable from the trail. Stephen Whittier, a witness to part of the accident, did not notice the power line until he and his family heard a snapping noise and saw Jay Muchhala fall from the pole. (Deposition Testimony of Stephen Whittier.) Susan Whittier, who also witnessed the accident, noticed the power lines on her way up the trail, but didn't take particular note of them until the accident. (Id.)

11. The accident pole is 30 feet tall and made of galvanized steel. The accident pole has two cross arms close to the top. The lower cross arm, which was not in use at the time of the accident, may have previously been used to carry communication wires. Located approximately four feet above the lower cross arm was the upper cross arm, on which run four lines, three conductor lines that each carry 12,000 volt current and a "static line." (Testimony of Kent Summers.)

12. As each conductor line approaches the pole, it meets insulators, one on each side of the pole, which keep the electric current from being conducted through the pole to the ground. A "jumper cable" or "jumper" bypasses the insulators, carrying electricity from the outside of the insulator on One, side of the pole to the outside of the ,insulator on the other side of the pole. (Testimony of Kent Summers.)

13. Nine of the ten poles in the Glacier Point Line are substantially identical to the accident pole. The remaining pole ("Pole # 1"), which is located at the bottom of the valley, differs in construction. It is a "riser" pole, where the high voltage power line is transferred from below ground to above ground. (Testimony of Kent Summers.)

14. There were no warning signs on the accident pole at the time of the accident. (ASF # 4.) Nor was there physical evidence indicating a sign had previously been located on the pole. (Testimony of Kent Summers, Steven Yu.)

15. At the time of the accident, a number of other poles on the Glacier Point Line also did not have high voltage warning signs. (Testimony of Kent Summers, Robert Armstrong.)

16. The riser pole had high voltage markings on the top cross arm on the date of the incident. (JE. 8 & 9; Testimony of Kent Summers & Paul Layrnon.) After the accident, a yellow high voltage warning sticker was also placed near the base of the riser pole. Two years later, in 2006, a picture taken of that sticker reveals that the yellow warning sticker had begun to peel off the pole. (Testimony of Kent Summers.)

17. All of the poles on the Glacier Point Line have removable steel pegs. (Testimony of Kent Summers.) The removable pegs attach to the pole by screwing or bolting into steel flanges. These flanges, are also known as "saddles." (Testimony of Kent Summers.)

18. At the time of the accident, the lowest climbing peg on the accident pole was located approximately four feet above ground level. Three additional pegs were located lower than 7'6" feet above ground level. Every pole in the Glacier Point Line, with the exception of the riser pole, had climbing pegs at the same heights. (Testimony of Kent Summers.)

19. Even with the pegs removed below at 7'6", a climber could climb the pole by climbing the flanges that support the pegs. (Testimony of Keith Guy.)

20. However, climbing the pole without the pegs in place is difficult. Some of the workers had difficulty accessing the pole without the assistance of an "aid," even with the pegs installed. (Testimony of Kent Summers, Testimony of Keith Guy).

21. At the time of the accident, the subject pole had a sticker attached to it bearing the words "Proud to Be an American." (PE 148). At the time of the accident, the sticker was not new, and had partially peeled off of the pole. (Testimony of Kent Summers.) The sticker was located just above the "flange" on the pole, approximately half way up the pole, at a height of fifteen or sixteen feet. (PE 148; Testimony of Kent Summers & Steven Yu.)

22. The sticker had not been seen by a park employee prior to the incident. (Testimony of Kent Summers).

23. There is no evidence that the pole was dangerous or defective, and it was implemented for its intended use.

C. Relevant Regulations & Standards.

24. State of California Rules of Overhead Electric Line Construction prescribed by the Public Utilities Commission of the State of California, General Order 95 ("GO 95") became effective on July 1, 1942. (PE 179, GO 95, at 3.)

25. GO 95 provides that every high voltage power pole be marked with high voltage signs located no more than 40 inches below the lowest line conductors; that the lowest climbing peg on any high voltage pole should be no lower than 7'6" feet from ground level; and that latticed towers located near frequently traveled trails should be "guarded" to prevent easy climbing of the towers by young persons who do not realize the danger of contact with live conductors. GO 95 contains no provisions regarding the guarding of nonlatticed electric poles. (GO 95, Rules 51.6 & 51.7.)

26. The stated purpose of GO 95 is to "formulate, for the State of California, uniform requirements for overhead electrical line construction, the application of which will insure adequate service and secure safety to persons engaged in the construction, maintenance, operation or use of overhead electrical lines and to the public in general." (GO 95 Rule 11.)

27. General Order 95 only formally applies to poles constructed after its effective date, 1941. (Testimony of Robert Armstrong; GO 95 Rule 12.3.)

28. The accident pole was erected in approximately 1928 and has not been reconstructed or altered since that date. (Testimony of Kent Summers, Testimony of Paul Laymon, Defendant's Exhibits ("DE") 209 and 210.)

29. A new riser pole (Pole one) was installed in approximately 1997 at the lowest point of the Glacier Point Line. The riser pole was constructed in accordance with a Project Manual, which required that all climbing pegs below ten feet be removable pegs. (PE 175 at 16372-6.)

30. Robert Armstrong testified that it was the intent of GO 95 that all preexisting poles should eventually be brought into conformity with its provisions. Armstrong appears to have been making reference to the following language in Decision No. 34884 before the Railroad Commission of the State of California, which adopted GO 95:

Under the terms of the new general order, existing facilities lawfully erected in accordance with earlier general orders, are permitted to be maintained according...