Poelstra v. Basin Elec. Power Co-op., No. 19212

CourtSupreme Court of South Dakota
Writing for the CourtMILLER
Citation1996 SD 36,545 N.W.2d 823,49 A.L.R.5th 883
Decision Date03 April 1996
Docket NumberNo. 19212
Parties, 1996 SD 36 Eugene R. POELSTRA and Joann Poelstra, husband and wife, Plaintiffs and Appellants, v. BASIN ELECTRIC POWER COOPERATIVE, Defendant and Appellee.

Page 823

545 N.W.2d 823
49 A.L.R.5th 883, 1996 SD 36
Eugene R. POELSTRA and Joann Poelstra, husband and wife,
Plaintiffs and Appellants,
v.
BASIN ELECTRIC POWER COOPERATIVE, Defendant and Appellee.
No. 19212.
Supreme Court of South Dakota.
Argued Jan. 9, 1996.
Decided April 3, 1996.

John P. Mullen of Quaintance, Hauck & Mullen, Sioux Falls, for plaintiffs and appellants.

David A. Gerdes of May, Adam, Gerdes & Thompson, Pierre, for defendant and appellee.

Page 825

MILLER, Chief Justice.

¶1 Eugene and Joann Poelstra sued Basin Electric Power Cooperative for its alleged negligent failure to mark electrical power lines. At trial, after Poelstras had rested their case, the trial court granted a directed verdict in favor of Basin Electric. Poelstras appeal. We affirm.

FACTS

¶2 On February 12, 1990, Tim Kennedy was piloting a helicopter and Eugene Poelstra was in the passenger seat. They were on a routine power line patrol for their employer, Western Area Power Association (WAPA), an agency of the United States government. While Kennedy flew the helicopter along WAPA lines, Poelstra looked for evidence of damage to the lines.

¶3 While flying near a substation in the area of Ft. Thompson, South Dakota, the helicopter collided with electric power lines that crossed over WAPA lines. Basin Electric owned the lines that were hit by the helicopter.

¶4 Although Kennedy was relatively uninjured in the crash, Poelstra sustained serious injuries. He and his wife sued Basin Electric, claiming it was negligent in failing to warn of the line crossing by posting signs or installing spherical line markers. 1 The trial court granted a directed verdict to Basin Electric at the conclusion of Poelstras' case, ruling that Basin Electric owed no duty to Poelstra to warn of the line crossing. Alternatively, the trial court ruled that any negligence by Basin Electric was not the proximate cause of Poelstras' injuries. The trial court further determined that Kennedy's negligence in flying the helicopter was an intervening, superseding cause of the accident.

¶5 Poelstras appeal the trial court's grant of a directed verdict. They contend Basin Electric did have a duty to mark its overhead lines or otherwise warn of the crossing. They dispute the trial court's determination that Kennedy's negligence was an intervening, superseding cause of the crash. They also contend the trial court erroneously admitted evidence showing that WAPA now posts warning signs at the crossing where the collision took place.

DECISION

¶6 Did the trial court err in determining as a matter of law that Basin Electric owed no duty of care to Poelstras?

¶7 "The existence of a duty owed by the defendant to the plaintiff, which requires the defendant to conform to a certain standard of conduct in order to protect the plaintiff against unreasonable risks, is elemental to a negligence action." Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D.1985). In granting Basin Electric's motion for a directed verdict, the trial court ruled Basin Electric had no duty to warn air travelers that its power lines crossed WAPA power lines.

¶8 Poelstras assert that foreseeability is the "touchstone" of duty and is essentially a factual inquiry. Citing a Colorado Court of Appeals case, they argue that where the evidence is subject to reasonable dispute, the question of foreseeability and any ensuing duty should be submitted to the jury. See Sewell v. Public Service Co. of Colorado, 832 P.2d 994, 997-98 (Colo.Ct.App.1991).

¶9 This Court has repeatedly held that the existence of a duty is a question of law for the court to decide and is subject to de novo review. Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993); Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991); Gilbert v. United National Bank, 436 N.W.2d 23, 27 (S.D.1989); Small v. McKennan Hosp., 403 N.W.2d 410, 413 (S.D.1987) (citing Barger for Wares v. Cox, 372 N.W.2d 161, 167 (S.D.1985)); Erickson, 368 N.W.2d at 627 (citing Cuppy v. Bunch, 88 S.D. 22, 26, 214 N.W.2d 786, 789 (1974)). The contrary conclusions of a Colorado Court of Appeals

Page 826

do not persuade us to abandon our settled precedent on this question. 2

¶10 1. No statutory duty.

¶11 Duty may be imposed by common law or by statute. Albers v. Ottenbacher, 79 S.D. 637, 641, 116 N.W.2d 529, 531 (1962). Poelstras point to several South Dakota statutes which they claim imposed a duty on Basin Electric to mark the power lines in question.

¶12 Poelstras begin by citing SDCL 20-9-1, which states:

Every person is responsible for injury to the person, property, or rights of another caused by his willful acts or caused by his want of ordinary care or skill, subject in the latter cases to the defense of contributory negligence.

¶13 This statute simply recognizes the right of injured persons to recover from wrongdoers who fail to exercise ordinary care. It does not define the circumstances under which the law imposes a duty on an alleged tort-feasor such as Basin Electric.

¶14 Poelstras cite other statutes concerning electrical lines, claiming they impose a duty on Basin Electric to mark their lines. SDCL 49-32-11 states:

No person may, individually or through an agent or employee, and no person as an agent or employee of another person, may perform or permit another to perform any function or activity if it is probable that during the performance of such activity any person or any tool, equipment, machinery or material engaged in performing work connected with such activity, will move to, or be placed in, a position within six feet of any high voltage overhead electrical line or conductor. A violation of this section is a Class 2 misdemeanor.

This statute prohibits persons from performing or permitting others to perform work within six feet of a high voltage electrical line. Nothing in this statute requires Basin Electric to mark its...

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32 practice notes
  • Long v. State, 27368
    • United States
    • Supreme Court of South Dakota
    • November 21, 2017
    ...a duty is not invariably the same as the foreseeability relevant to causation." Poelstra v. Basin Elec. Power Co-op., 1996 S.D. 36, ¶ 18, 545 N.W.2d 823, 827. "The latter essentially is to be viewed as of the time when the damage was done while the former relates to the time when the act or......
  • Bruske v. Hille, No. 19909
    • United States
    • Supreme Court of South Dakota
    • August 20, 1997
    ...Henry v. Henry, 534 N.W.2d 844, 846 (S.D.1995). Duty is a question of law subject to de novo review. Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, p 9, 545 N.W.2d 823, Fraud and Deceit ¶9 In her complaint, Bruske alleges two counts of fraud and deceit, based in part, on SDCL ch. 20-10. ......
  • Janis v. Nash Finch Co., No. 25261.
    • United States
    • Supreme Court of South Dakota
    • March 17, 2010
    ...in order to protect the plaintiff against unreasonable risks, is elemental to a negligence action." Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶ 7, 545 N.W.2d 823, 825 (quoting Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D.1985)). While a jury generally determines whether a duty has ......
  • Berry v. Risdall, Nos. 20071
    • United States
    • Supreme Court of South Dakota
    • February 25, 1998
    ...the existence of a duty is a question of law for the Court to decide and is subject to de novo review. Poelstra v. Basin Elec. Power Coop., 1996 SD 36, p 9, 545 N.W.2d 823, 825; Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993); Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991); Gilbe......
  • Request a trial to view additional results
32 cases
  • Long v. State, 27368
    • United States
    • Supreme Court of South Dakota
    • November 21, 2017
    ...a duty is not invariably the same as the foreseeability relevant to causation." Poelstra v. Basin Elec. Power Co-op., 1996 S.D. 36, ¶ 18, 545 N.W.2d 823, 827. "The latter essentially is to be viewed as of the time when the damage was done while the former relates to the time when the act or......
  • Bruske v. Hille, No. 19909
    • United States
    • Supreme Court of South Dakota
    • August 20, 1997
    ...Henry v. Henry, 534 N.W.2d 844, 846 (S.D.1995). Duty is a question of law subject to de novo review. Poelstra v. Basin Elec. Power Co-op., 1996 SD 36, p 9, 545 N.W.2d 823, Fraud and Deceit ¶9 In her complaint, Bruske alleges two counts of fraud and deceit, based in part, on SDCL ch. 20-10. ......
  • Janis v. Nash Finch Co., No. 25261.
    • United States
    • Supreme Court of South Dakota
    • March 17, 2010
    ...in order to protect the plaintiff against unreasonable risks, is elemental to a negligence action." Poelstra v. Basin Elec. Power Coop., 1996 SD 36, ¶ 7, 545 N.W.2d 823, 825 (quoting Erickson v. Lavielle, 368 N.W.2d 624, 626 (S.D.1985)). While a jury generally determines whether a duty has ......
  • Berry v. Risdall, Nos. 20071
    • United States
    • Supreme Court of South Dakota
    • February 25, 1998
    ...the existence of a duty is a question of law for the Court to decide and is subject to de novo review. Poelstra v. Basin Elec. Power Coop., 1996 SD 36, p 9, 545 N.W.2d 823, 825; Bland v. Davison County, 507 N.W.2d 80, 81 (S.D.1993); Clauson v. Kempffer, 477 N.W.2d 257, 258 (S.D.1991); Gilbe......
  • Request a trial to view additional results

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