Musch v. H-D Elec. Co-op., Inc.

• Decision Date: 23 May 1990
• Docket Number: H-D,No. 16945,16945
• Citation: 8 A.L.R.5th 921,460 N.W.2d 149
• Parties: Linda MUSCH and Calvin Musch, Plaintiffs and Appellants, v.ELECTRIC COOPERATIVE, INC., Defendant and Appellee. . Considered on Briefs
• Court: South Dakota Supreme Court

Page 149

460 N.W.2d 149

8 A.L.R.5th 921

Linda MUSCH and Calvin Musch, Plaintiffs and Appellants, v. H-D ELECTRIC COOPERATIVE, INC., Defendant and Appellee.

No. 16945.

Supreme Court of South Dakota.

Considered on Briefs May 23, 1990.

Decided Aug. 15, 1990.

Thomas Reeves Hendricks, Minn., and Brian Wojtalewicz, Appleton, Minn., for plaintiffs and appellants.

Gordon Gunderson of Gunderson, Evenson & Boyd, Clear Lake, and Charles R. Kennedy of Kennedy and Nervig, Wadena, Minn., for defendant and appellee.

MORGAN, Justice.

Calvin (Calvin) and Linda Musch (Linda) appeal an order granting summary judgment in favor of H-D Electric Cooperative, Inc. (Cooperative). We reverse and remand.

FACTS

On the morning of October 10, 1985, Linda, Calvin, and Calvin's father, Henry Musch (Henry), were herding cattle north along the west ditch of Deuel County Road 1 toward Henry's farmyard. Linda and Calvin were on horseback, Henry was in a pickup.

As the cattle turned into Henry's farmyard, a calf broke away from the herd and started up the county road. After helping Calvin and Henry pen up the remaining cattle, Linda took off after the stray. As Linda got behind the stray, the calf bolted into the yard of Alfred and Beverly Novy (Novys). Just a few horse strides off the county road, the calf veered in a northerly direction under an unguarded guy wire. Linda never saw the guy wire and was violently knocked off her horse.

The guy wire in question supported a power pole located on the Novys' property. The pole and guy wire are owned and maintained by Cooperative and are on the Novys' property by virtue of a right-of-way easement for construction and maintenance of the power line. The easement gave Cooperative the following rights:

[T]o place, construct, operate, repair, maintain, relocate and replace thereon and in or upon all streets, roads or highways abutting said lands all electric transmission or distribution line or system and to cut and trim all trees and shrubbery to the extent necessary to keep them clear of said electric line or system and to cut down from time to time all dead, weak, leaning or dangerous trees that are tall enough to strike the wires in falling.

In granting this easement it is understood that the location of the poles will be such as to form the least possible interference with farming operations, so long as it does not materially increase the cost of construction.

The easement did not give Cooperative the right to fence around poles or to keep trespassers out. Nor did it give any metes and bounds description of the area of the easement. The possession of the land was left to the landowners, the Novys.

To understand the condition of the accident site, it is necessary to retrace some of the history of providing power to this rural area. Initially in 1948, the Cooperative built a line of power poles running north and south, with the pole at the accident site being the southerly pole of the line. It was designated as pole # 8 and had two guy wires on it. A power line wire ran from the pole across the road easterly to service Henry's farm. In 1963, a three-phase line was added to the system, and the line was extended down the road with more poles to the south of the accident site location. At that time, one of the two guy wires, the one running south of the pole, was removed. The one running west of the pole, which later became the accident guy wire, remained.

In 1979, Novys built a home west and adjacent to Deuel County Road 1 and immediately across from Henry's farm. Pole # 8, supported by the guy wire where the accident later occurred, was located on the southeast corner of the large farmyard. Also, in 1979, the underground electric service was put into Novys' new house. Henry was present on the day when the underground electric service was run from that pole to Novys' new house and when Cooperative's employees were working at the location of the accident guy wire and electric pole. Henry testified that Cooperative employees removed a guy guard from the single guy wire that day because it was bent. Henry told them that it could just be fixed right there with a little work, but Cooperative's employees removed it and said that they had plenty of them at the shop and would replace it. The guy guard was not replaced.

Lyle Johnson, an employee of Cooperative, admitted that there may have been a guard on the accident guy wire when they worked at that pole to extend the transmission lines to the south in 1963. Dorsey Kreger, Cooperative's supervisor, testified that the Cooperative document that recorded the underground electric service installation at Novys' in 1979 contained a note that reflected "No guy guard."

Cooperative is under the authority of the Rural Electrification Administration (REA), United States Department of Agriculture. Gary Cramer (Cramer), the manager and engineer of Cooperative, identified REA Bulletin 61-5 as a guideline for guy wires. This bulletin, issued on September 27, 1972, specified: "Guy guards should be installed where the guy is exposed to traffic, pedestrians and livestock." Cramer also identified a 1978 Summary of Engineering Items as including guidelines from the REA. It specified:

Guy guards, or better termed guy markers, must be used on guyed transmission structures exposed to pedestrian traffic. The Code does not require that they be used on guys extending into a field where only anticipated traffic would be a slow moving farm vehicle. However, in view of past mishaps, it is suggested that guy markers be considered for use in farm fields and other areas exposed to vehicular traffic.

Alfred Novy testified that he mowed around the guy wire three or four times a year, since it was situated in his yard. Novys also maintained a vegetable garden a few yards away from the guy wire and post. Novys' yard is not fenced and the guy wire and pole are near Deuel County Road 1.

After holding a hearing, the trial court granted Cooperative's motion for summary judgment on the grounds that it owed no duty of care to Linda because she was a trespasser or licensee and, absent a showing of willful conduct, Linda was not entitled to relief.

ISSUE

Did the trial court err in holding that Cooperative, who did not own the land and merely held a right-of-way easement, could assert the landowners' defense of no duty to use ordinary care to see that the premises were safe for a trespasser or licensee?

ANALYSIS

The standard of review of the grant or denial of summary judgments is well established.

In reviewing a grant or a denial of summary judgment under SDCL 15-6-56(c), we must determine whether the moving party demonstrated the absence of any genuine issue of material fact and showed entitlement to judgment on the merits as a matter of law. Groseth Intern., Inc. v. Tenneco, Inc., 410 N.W.2d 159, 164 (S.D.1987). The evidence must be viewed most favorably to the nonmoving party and reasonable doubts should be resolved against the moving party. Wilson v. Great Northern Ry. Co., 83 S.D. 207, 212, 157 N.W.2d 19, 21 (1968). The nonmoving party, however, must present specific facts showing that a genuine, material issue for trial exists. Ruane v. Murray, 380 N.W.2d 362, 364 (S.D.1986). Our task on appeal is to determine only whether a genuine issue of material fact exists and whether the law was correctly applied. If there exists any basis which supports the ruling of the trial court, affirmance of a summary judgment is proper. Weatherwax v. Hiland Potato Chip Co., 372 N.W.2d 118, 120 (S.D.1985); Ruple v. Weinaug, 328 N.W.2d 857, 859-60 (S.D.1983).

Pickering v. Pickering, 434 N.W.2d 758, 760-61 (S.D.1989).

First, we must determine Linda's status while pursuing the calf onto Novys' property. In Underberg v. Cain, 348 N.W.2d 145, 146 (S.D.1984), South Dakota recognized the traditional common law categories for those who enter onto land and are injured: trespasser, licensee, and invitee. These categories make out a sliding standard, where, as the legal status of the visitors improves, the landowner owes him or her a higher standard of care. Prosser and Keeton, Torts § 58 (5th Ed.1984). At the top of the scale, the possessor of land owes the invitee "the duty of exercising reasonable or ordinary care for his safety and is liable for the breach of such duty." Stenholtz v. Modica, 264 N.W.2d 514, 516 (S.D.1978). On the other hand, the licensee and trespasser

take the property as the visitors find it, and that the owner or occupant undertakes no duty to those visitors who come for their own pleasure or convenience, and not at his invitation or upon inducement, express or implied, from a common advantage, except that, being aware of their presence, he must not injure them willfully or entrap them.

Underberg, 348 N.W.2d at 146 (citation omitted).

Here, Linda entered on Novys' land to pursue her own benefit, retrieving the stray calf. While Novys may not have expected her to ask permission and did not object to her being there, her status is still that of a licensee. Stenholtz, supra; see also Prosser and Keeton, Torts § 60 (5th Ed.1984) ("licensee" used to designate person who comes upon the land with a privilege arising from the consent of the possessor, ... but is limited to those with consent and nothing more).

Since Linda was a licensee, the trial court was correct in ruling that Novys owed her no duty of ordinary care. But, the trial court's inquiry wrongly stopped there. For it is necessary to inquire whether Cooperative, as a mere holder of a right-of-way easement, had the right to assert Novys' defense. The trial court evidently assumed that it did and, in that leap of deductive reasoning, committed error.

Though South Dakota has not dealt with this identical issue, many other states have and their analysis is useful. In Langazo v. San Joaquin Light & Power, 32 Cal.App.2d 678, 90 P.2d 825 (1939), a boy was electrocuted by a power company's sagging line as he crossed a field with...