Pierce v. Platte-Clay Elec. Co-op., Inc.

Citation769 S.W.2d 769
Decision Date16 May 1989
Docket NumberPLATTE-CLAY,No. 70947,70947
PartiesPaul PIERCE, Respondent, v.ELECTRIC COOPERATIVE, INC., Appellant.
CourtUnited States State Supreme Court of Missouri

Spencer J. Brown, Daniel E. Hamann, Kansas City, for appellant.

John K. Thomas, St. Joseph, for respondent.

ROBERTSON, Judge.

We granted transfer in this case, primarily to consider whether a plaintiff must establish a defendant's violation of industry standards in order to meet his burden of proof in a negligence action. We answer the question in the negative and affirm both consistent precedents of this Court and the judgment of the trial court.

I.

Respondent, Paul Pierce, brought suit against appellant, Platte-Clay Electric Cooperative, Inc., (Platte-Clay) for personal injuries caused by the electric cooperative's alleged negligence. Pierce, a farmer, raised cattle, hogs, tobacco and various row crops near DeKalb, Missouri. Platte-Clay distributes electric power to seven counties in Missouri. Most of the electric power is distributed through overhead lines suspended from poles owned by the appellant. Some of the poles are stabilized by guy wires which extend at an angle several feet away from the pole. The guy wires are anchored into the ground. Some poles, as in this case, serve merely to support other poles which carry the electrically charged lines. These "stub" poles are also anchored by guy wires.

On March 20, 1985, Pierce was applying anhydrous ammonia to a rented field. The tractor Pierce drove was approximately twelve feet wide and pulled a spreader which extended ten feet beyond either side of the tractor. Pierce had been in the field only one time prior to March 20, 1985, and had not walked around the field or otherwise examined it before beginning to spread the ammonia.

As he drove around the field, Pierce looked behind him to check the spreader and forward toward the ground in front of the tractor watching for ditches and rocks. He recalled seeing brush and trees in the northeast corner of the field but he did not focus his vision on them as he approached. When Pierce turned the tractor at the northeast corner to proceed south, he felt a jerk. Inspection revealed that the spreader had snagged on a guy wire which secured a utility stub pole. The stub pole had been placed in the midst of the trees; the guy wire extended into the brush at the edge of the field. The stub pole did not carry an electrically charged line but had secured a cable that supported a utility pole across the highway. Pierce found that the stub pole was broken and that the cable was hanging down, grazing the surface of the highway.

Pierce understood the danger the cable posed to vehicles on the highway. He returned to the tractor, retrieved his tools and began to walk to the cable with the intention of removing it. As he started around the tractor, an eastbound car came into view on the highway. Pierce ran toward the highway in an attempt to flag down the car before it struck the cable. The driver did not see his warnings. Pierce testified that he heard a swishing sound and was thrown into the air. He did not see the car hit the cable nor could he testify as to what immediately followed. There was sufficient evidence that the jury could have found that the car struck the cable, which became taught and caught Pierce's right leg. Pierce was taken by ambulance to a hospital where doctors amputated his right leg below the knee. He also suffered a dislocated left shoulder and head injuries.

Platte-Clay owned the stub pole, guy wire and cable involved in respondent's accident. The pole and guy wire were erected by appellant in 1969. No guy marker (an eight-foot long brightly colored plastic marker) marked the guy wire.

Pierce's petition alleged that appellant knew or should have known that persons operating farm machinery faced an unreasonable risk of injury and that Platte-Clay was thereby negligent in failing to place a guy marker on the guy wire to warn of the wire's presence.

Platte-Clay adopted two primary defense positions throughout trial: First, the cooperative claimed that the bizarre chain of events that led to Pierce's injury were unforeseeable to appellant. Second, even if the events were foreseeable, appellant claimed it followed the standards of the National Electric Safety Code and therefore was not negligent.

The jury returned a verdict for Pierce, assessed his damages at $600,000 and apportioned Pierce's fault at 50 percent. The trial court entered judgment in favor of respondent Pierce for $300,000.

The Court of Appeals, Western District, reversed and remanded on two bases: First, appellant argued, and the court of appeals held, that Pierce improperly relied on Rural Electrification Administration (R.E.A.) bulletins to establish a violation of industry custom or standards. The court of appeals determined that the bulletins were irrelevant and their use during trial prejudiced the cooperative. Second, the court of appeals held that respondent failed to show a violation of industry custom or standard, and, therefore, that respondent failed to make a submissible case of negligence.

We granted transfer and have jurisdiction. Mo. Const. art. V, § 10.

II.

Industry Standards

A.

To make a submissible case of negligence, a plaintiff must prove, inter alia, that the defendant breached a duty of care. A duty is a requirement to conform to a standard of conduct for the protection of others against unreasonable risks. Hoover's Dairy, Inc. v. Mid-America Dairymen, 700 S.W.2d 426, 431 (Mo. banc 1985); W. Prosser and W. Keeton, Prosser & Keeton on the Law of Torts, § 30 p. 164 (5th ed.1984). In this case, the parties held conflicting views as to the standard of conduct the electric cooperative was required to follow.

Respondent Pierce attempted to prove that appellant breached its duty of ordinary care 1 by failing to place a marker on the guy wire. Appellant argues that it was not required by the National Electric Safety Code (NESC) to place a marker on a guy wire near a cultivated field. 2 Appellant claims its compliance with this industry safety standard is a complete defense.

Evidence of industry custom or standard is admissible proof in a negligence case. Kungle v. Austin, 380 S.W.2d 354, 361 (Mo.1964). That the evidence is admissible does not terminate the inquiry, nor does evidence of conformance to such standards require a conclusion that a defendant did not breach its duty to the plaintiff.

In Hannah v. Mallinckrodt, Inc., 633 S.W.2d 723 (Mo. banc 1982), the defendant maintained that the plaintiff had the burden to prove that defendant deviated from industry safety customs to make a submissible case of negligence. This Court rejected that argument. "[A] person charged with negligence cannot excuse his misconduct by proving the same misconduct in others--custom furnishes no excuse if the custom itself is negligent." [Citations omitted.] Id. at 725.

In Freeman v. Kansas City Power and Light Co., 502 S.W.2d 277 (Mo.1973), this Court found the NESC to be an admission of a minimum standard of conduct within the electric industry. Compliance with that minimum was not, however, conclusive of a defendant's adherence to its duty of care. Id. at 283.

The duty of care is an objective standard determined by what an ordinary careful and prudent person would have done under the same or similar circumstances. Industry customs or standards do not establish a legal standard of care. Fancher v. Southwest Missouri Truck Center, Inc., 618 S.W.2d 271, 274 (Mo.App.1981). Were we to permit industry standards to establish the legal standard of care, we would also permit industry to dictate the terms under which its members could be held liable for negligence.

Tort law serves a different purpose. As Justice Holmes said:

What usually is done may be evidence of what ought to be done, but what ought to be done is fixed by a standard of reasonable prudence, whether it usually is complied with or not.

Texas & Pac. Ry. Co. v. Behymer, 189 U.S. 468, 470, 23 S.Ct. 622, 623, 47 L.Ed. 905 (1903). Appellant conducted a defense equating compliance with the NESC with the exercise of ordinary care. In this case, the jury found that appellant breached its standard of care, in essence rejecting appellant's argument that the NESC standards met the ordinary careful and prudent person standard.

Consistent with this Court's precedents, we again hold that evidence of industry standards is generally admissible as proof of whether or not a duty of care was breached. However, compliance with an industry's own safety codes or standards is never a complete defense in a case of negligence. A plaintiff is, therefore, not required to prove a violation of industry standards to make a submissible case.

B.

Missouri courts have rarely confronted the particular kinds of evidence used to prove electric industry standards and have never specifically addressed the use of Rural Electrification Administration (REA) bulletins. Appellant urges that these bulletins are irrelevant and do not prescribe the standard of care appellant was obligated to follow. Pierce counters that the bulletins were relevant because the evidence proved that appellant's policy was to comply with REA recommendations.

From opening statement to closing argument, appellant attempted to persuade the jury that the National Electrical Safety Code established the standard of care to which appellant's conduct must conform. On cross-examination of appellant's superintendent, respondent was able to elicit testimony that there were "certain specifications and rules under the REA that we follow." This witness had overseen the utility's operations since its inception in 1938. He admitted that the REA bulletins were considered authoritative in the field, that appellant relied on this material in developing line inspection and maintenance procedures and appellant felt compelled to comply with the REA standards.

The Rural...

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