Orthman v. Idaho Power Co.

• Decision Date: 19 July 2000
• Docket Number: No. 25221.,25221.
• Parties: Russell ORTHMAN and Nancy Orthman, husband and wife, and Nancy Orthman, Natural Mother and Guardian on behalf of all minor children of the parties, Plaintiffs-Appellants, v. IDAHO POWER COMPANY, an Idaho corporation, Defendant-Respondent.
• Court: Idaho Supreme Court

7 P.3d 207

134 Idaho 598

Russell ORTHMAN and Nancy Orthman, husband and wife, and Nancy Orthman, Natural Mother and Guardian on behalf of all minor children of the parties, Plaintiffs-Appellants, v. IDAHO POWER COMPANY, an Idaho corporation, Defendant-Respondent.

No. 25221.

Supreme Court of Idaho, Twin Falls, March 2000 Term.

July 19, 2000.

Rehearing Denied August 28, 2000.

E. Lee Schlender, Chtd., Hailey, for appellants.

Evans, Keane, LLP, Boise, for respondent. Rex Blackburn argued.

KIDWELL, Justice.

Russell and Nancy Orthman appealed from the trial court's judgment for the defendant, Idaho Power Company, in a tort action. The Orthmans sued Idaho Power for negligence when Russell was severely injured trying to reconnect electrical power to his house. Idaho Power had disconnected the power because the Orthmans were delinquent in paying their account. Idaho Power asserted an affirmative defense of negligence by Russell. The trial court entered judgment for Idaho Power when a jury found the comparative negligence of Idaho Power to be 50% and of Russell to be 50%. We affirm.

I. FACTS AND PROCEDURAL HISTORY

Farm worker Russell Orthman, his wife Nancy, and their small children lived in a small farmhouse in Lincoln County. Idaho Power Company started residential service at the address under the Orthmans' names in August 1992. From the start, the Orthmans were delinquent in paying their electric bill. Idaho Power started the process of terminating service in late November, but stopped the process because it was close to its December-February moratorium on terminating electrical service. The Orthmans paid $100 on their bill in early December. After this payment, their outstanding balance was over $320. Even though Idaho Power could not terminate service during the winter moratorium, it sent the Orthmans three termination notices during this period. Idaho Power representatives never specifically advised the Orthmans of the winter moratorium period, relying instead on a "Consumer Information" sheet sent to all customers in September to fulfill its notification requirements.

On March 24, 1993, "troubleman" Harold Armstrong went to the Orthmans' residence to read the meter. At that time, Nancy handed him $400 cash as partial payment on the bill. The Orthmans were still in arrears by over $272. Although the Orthmans were scheduled for disconnection, customer service representative Joann Hartruff rescinded the termination order because the Orthmans had paid over half of their outstanding bill.

By early April, the Orthmans owed over $360 and had not made any further payment arrangements. Hartruff decided to terminate service. Public Utility Commission (PUC) regulations required Idaho Power to telephone or send written notification to customers seven days prior to terminating service. Hartruff, unable to contact the Orthmans by telephone on April 15, prepared a written notice which was mailed the following day. The back of the "Final Disconnect Notice" contained the following language:

If you are unable to pay your bill in full contact us. The Company will discuss optional payment plans or PAYMENT ARRANGEMENTS which may allow you to pay in reasonable installments and avoid disconnection of service.

On April 22, Armstrong went to the Orthmans' residence to disconnect the power. When he arrived, Nancy told him that she had paid $400 on the account. Armstrong telephoned Hartruff and requested that she talk with Nancy. Nancy asked Hartruff if she could make payment arrangements, insisting that she could pay the bill that day or on the following day. Hartruff told Nancy that the bill had to be paid in full at that time and she did not have the authority to make a payment arrangement. She did not inform Nancy about the company's standard payment arrangements. Without referring Nancy to any other person with authority, Hartruff stated that arrangement had to be made with the district manager, William Specht, who was out of the office. After speaking with Nancy, Hartruff instructed Armstrong to terminate the service. Shortly thereafter, Specht made one unsuccessful attempt to call the Orthmans, left the office, and was unavailable for the rest of the day.

Armstrong disconnected the Orthmans' power by using his "hot stick" to pull a fuse on the power line 26 feet above ground level. The elevation of the wires was eight feet above the minimum level required by the National Electrical Safety Code. Armstrong testified that, to terminate service, he also had the option of removing the actual meter. He testified that he used both methods routinely and considered both to be safe; but that pulling the fuse was quicker and easier. Armstrong also testified that he did not consider disconnecting the fuse a safety hazard to others because it was so high and because tampering with the wires was illegal.

Russell returned to the house shortly after the power was disconnected. He called Hartruff and asked for reconnection, promising full payment on May 3. Hartruff told him that power could be restored only after full payment was made on the account. After Russell unsuccessfully attempted to contact his employer for money, he returned to his yard. He found a long section of metal irrigation pipe, wrapped the bottom with electrical tape, and inserted a metal rod to the other end of the pole. Because the meter was still in place, closing the fuse would restore service through the meter. Russell raised the rod to the electrical circuit in an attempt to restore electrical service cut off by the defusing. He contacted the electrical circuit, and up to twenty thousand volts of electricity coursed through his body. Russell suffered severe burns and lost both legs and the use of both arms and both hands.

The Orthmans filed a complaint alleging that the negligence of Idaho Power in terminating and disconnecting the Orthmans' electrical service led to Russell's injuries. The district court granted Idaho Power's motion to dismiss for failure to state a claim. This Court reversed in Orthman v. Idaho Power Co., 126 Idaho 960, 962, 895 P.2d 561, 563 (1995). On remand, the district court granted summary judgment for Idaho Power. This Court reversed in Orthman v. Idaho Power Co., 130 Idaho 597, 601, 944 P.2d 1360, 1364 (1997).

Thereafter, the case went to a jury trial. The jury returned a special verdict finding Russell and Idaho Power each 50% negligent in causing the accident. The trial court entered judgment upon the special verdict, awarding nothing to the Orthmans. The trial court awarded Idaho Power $135 in discretionary costs and approximately $780 in costs as a matter of right. The Orthmans filed a timely notice of appeal.

II. ANALYSIS

A. Instructing the Jury that Diverting Power from a Power Company's Transmission Line Constituted Negligence Per Se Was Harmless Error.

The trial court gave the following jury instruction, based on Section 18-4621 of the Idaho Code:

There was in force in Idaho a statute which provides that any person who causes connections to be made by means of any device to the power transmission lines of a power company for the purpose of diverting power from the power company without permission or authority to do so from that power company is guilty of a misdemeanor.

A violation of this statute is negligence, unless the jury finds that compliance with the statute was impossible, or the violation was something over which the party had no control, or the circumstance was an emergency not of the party's own making.

The Orthmans contend that the trial court erred in giving this jury instruction. First, they contend that because Russell only attempted to make, but did not actually make, a connection, his actions did not violate I.C. § 18-4621. In addition, they assert that the statute was intended only to protect power companies from persons stealing electricity. Since closing the fuse would cause electricity to flow through the meter, they contend, Russell was not stealing electricity and any violation of the statute would not meet the requirements for negligence per se.

"This Court reviews jury instructions to determine whether the instructions, when considered as a whole, fairly and adequately present the issues of the case and state the applicable law. Reversible error occurs if an instruction misleads the jury or prejudices a party. Whether the jury instructions fairly and adequately present the issues and state the applicable law is a question of law over which this Court exercises free review." Perry v. Magic Valley Reg'l Med. Ctr., 134 Idaho 46, 51, 995 P.2d 816, 821 (2000) (internal quotations and citations omitted).

The Orthmans contend that Russell did not actually violate I.C. § 18-4621 because he only attempted, but did not succeed, in making a connection with Idaho Power's lines to restore his power. Although Russell did not succeed in restoring power through the meter, he did meet the elements of the statute. Through the rebar attached to the metal pole, Russell did in fact use a device to make a connection with Idaho Power's wires or cables, and he did in fact make this connection for the purpose of obtaining electric current. See I.C. § 18-4621. The statute does not require that the connection allow one to successfully obtain or divert power. See id.

The Orthmans also assert that Russell's actions did not constitute negligence per se. In order for violation of a statute to constitute negligence per se, four elements must be met. Stott By and Through Dougall v. Finney, 130 Idaho 894, 896, 950 P.2d 709, 711 (1997).

"First, the statute or regulation must clearly define the required standard of conduct;

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