Richardson v. U.S.

• Citation: 841 F.2d 993
• Decision Date: 14 March 1988
• Docket Number: 86-4119 and 86-4106,Nos. 86-4095,s. 86-4095
• Parties: Kenneth RICHARDSON, Plaintiff-Appellee/Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant/Cross-Appellee. Norman J. TRAPP, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (9th Circuit)

Page 993

841 F.2d 993

Kenneth RICHARDSON, Plaintiff-Appellee/Cross-Appellant, v. UNITED STATES of America, Defendant-Appellant/Cross-Appellee.

Norman J. TRAPP, Plaintiff-Appellee, v. UNITED STATES of America, Defendant-Appellant.

Nos. 86-4095, 86-4119 and 86-4106.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Jan. 6, 1988.

Decided March 14, 1988.

Frank A. Wilson, Assistant U.S. Atty., Spokane, Wash., and Robert L. Jones, Attorney-Advisor, Bonneville Power Administration, for defendant-appellant.

David E. Williams, Critchlow & Williams, Richland, Wash., for plaintiff-appellee Richardson.

Gregg L. Tinker and Nicholas Wagner, Longfelder, Tinker, Kidman & Flora, Seattle, Wash., for plaintiff-appellee Trapp.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, ALARCON, and POOLE, Circuit Judges.

POOLE, Circuit Judge:

These Federal Tort Claims Act cases arise out of an accident in which plaintiffs were severely burned by electricity from power lines owned and operated by the Bonneville Power Administration (BPA), a federal agency. In a prior appeal, this Court reversed a judgment in favor of the government, holding that the trial judge had applied the wrong standard of care. Richardson v. United States, 645 F.2d 731 (9th Cir.1981) (Richardson I ). Plaintiffs prevailed on retrial and the government appeals, claiming that the district judge erroneously believed himself bound by the law of the case despite a conflicting intervening decision of the Washington Court of Appeals. We agree that the district court was in error, and accordingly, we must again reverse.

I

On May 10, 1975, plaintiffs Kenneth Richardson and Norman Trapp were moving aluminum irrigation pipes on the farm that Trapp was renting. Suspended above one part of the farm were three power transmission lines owned and operated by the BPA. At the point where the plaintiffs were working, the lines are 30 feet above the ground.

At the time of the accident, plaintiffs were each carrying one end of a 40-foot length of pipe, and Trapp was dragging a 20-foot length of pipe behind him, resting the shorter pipe on the longer one. As they passed underneath the power lines, plaintiffs suddenly received a high-voltage charge of electricity. Both were knocked unconscious and suffered severe and permanent injuries.

The plaintiffs contend that lightning simultaneously struck the line and the pipe, causing a short circuit from the line to the pipe. ¹ The government contends that the plaintiffs raised the pipe into the air high enough to touch or come into close proximity to the power line.

Plaintiffs filed separate suits under the Federal Tort Claims Act. ² Richardson's suit was tried before Judge Marshall Neill in 1978. Judge Neill found that the accident had been caused by lightning striking the power lines, causing a midpoint flashover, but he concluded that the probability of a midpoint flashover was extremely remote and that the BPA had not been negligent. In Richardson I, this court reversed and remanded for a new trial, holding that the trial judge had applied the wrong standard of care under Washington law. 645 F.2d at 735.

On remand, Trapp's suit was transferred to the Eastern District and the two cases were consolidated. The liability issue was tried before Judge McNichols in March 1983. Before the judge had ruled, the Court of Appeals of Washington issued an opinion criticizing Richardson I as an incorrect interpretation of Washington law. See Keegan v. Grant County PUD, 34 Wash.App. 274, 661 P.2d 146 (1983). In his Memorandum and Order of June 30, 1983, Judge McNichols held that he was bound by the law of the case and found the defendant liable, but he certified the standard of care issue for interlocutory appeal under 28 U.S.C. Sec. 1292(b). However, the Petition for Interlocutory Appeal was filed two days late and was dismissed. ³ The trial court denied recertification.

The issue of damages was tried before Judge McNichols on October 31 and November 1, 1984. The judge issued his memorandum decision on February 10, 1986, finding the U.S. liable to Richardson for $1,093,094 ⁴ and to Trapp for $849,891. In a Supplemental Decision on June 11, 1986, the court noted that Richardson's administrative claim had been in the amount of $950,000. Finding no changed circumstances justifying the greater amount, as required by 28 U.S.C. Sec. 2675(b), the judge reduced Richardson's award to the amount of the claim.

II Nos. 86-4095/86-4106

The dispositive issue in these appeals is whether the district court erred in applying the standard of care dictated by Richardson I despite the intervening decision of the Washington Court of Appeals in Keegan. This is a legal question which we review de novo. Louie v. United States, 776 F.2d 819, 822 (9th Cir.1985); Miller v. United States, 587 F.2d 991, 994 (9th Cir.1978).

A.

Under the "law of the case" doctrine, a court is ordinarily precluded from reexamining an issue previously decided by the same court, or a higher court, in the same case. See United States v. Maybusher, 735 F.2d 366, 370 (9th Cir.1984), cert. denied, 469 U.S. 1110, 105 S.Ct. 790, 83 L.Ed.2d 783 (1985); Kimball v. Callahan, 590 F.2d 768, 771 (9th Cir.), cert. denied, 444 U.S. 826, 100 S.Ct. 49, 62 L.Ed.2d 33 (1979). There is a well-established exception, however, which allows reexamination when "controlling authority has made a contrary decision of law applicable to such issues." Kimball, 590 F.2d at 771-72. Applying this exception, federal courts have uniformly held that an intervening decision of the highest state court in a case governed by state law is grounds for reconsidering the law of the case. See, e.g., Messenger v. Anderson, 225 U.S. 436, 32 S.Ct. 739, 56 L.Ed. 1152 (1912); Robinson v. Volkswagen of America, Inc., 803 F.2d 572, 574 (10th Cir.1986); Reid v. Volkswagen of America, Inc., 575 F.2d 1175, 1176 (6th Cir.1978); cf. Handi Investment Co. v. Mobil Oil Corp., 653 F.2d 391, 392-93 (9th Cir.1981) (distinguishing intervening decision of California Supreme Court).

We believe that the exception has equal application where there has been a dispositive intervening decision of an intermediate appellate state court. The Supreme Court has held, under the Erie doctrine, that a federal court sitting in diversity must follow an intermediate state court decision unless other persuasive authority convinces the federal court that the state supreme court would decide otherwise. West v. American Tel. & Tel. Co., 311 U.S. 223, 61 S.Ct. 179, 85 L.Ed. 139 (1940); see also Estrella v. Brandt, 682 F.2d 814, 817 (9th Cir.1982) (choosing between conflicting intermediate state court decisions on the merits). It is undisputed that liability under the Federal Tort Claims Act is determined by the law of the state where the act or omission complained of occurred. See generally 28 U.S.C. Secs. 1346(b), 2674; Richards v. United States, 369 U.S. 1, 6-9, 82 S.Ct. 585, 589-90, 7 L.Ed.2d 492 (1962).

Our research discloses only one reported decision addressing the precise situation presented here. In Delano v. Kitch, 663 F.2d 990 (10th Cir.1981), cert. denied, 456 U.S. 946, 102 S.Ct. 2012, 72 L.Ed.2d 468 (1982), the district court refused to reconsider an issue of Kansas law decided on a prior appeal notwithstanding the intervening decision of the Kansas Court of Appeals. The Tenth Circuit, relying on West, held that the district court erred in not reconsidering the issue. 663 F.2d at 995-96. We agree with the rationale and the result reached by the Tenth Circuit. Accordingly, we hold that the district court should have reexamined the controlling state law in the light of the intervening state-court decision which specifically cast doubt upon this court's prior ruling.

Since such questions are before us de novo, our holding in Richardson I is open for reconsideration, and we now reexamine Washington law in the light shed by Keegan to determine whether the trial court's application of Richardson I prejudiced the defendant. Delano v. Kitch, supra, 663 F.2d at 996; see also Vandenbark v. Owens-Illinois Glass Co., 311 U.S. 538, 543, 61 S.Ct. 347, 350, 85 L.Ed. 327 (1941) (under Erie, a federal appellate court must apply state law as it exists at the time of the appeal, rather than at the time of the trial).

B.

In Richardson I, this court held that the standard of care imposed on a power transmission line owner or operator under Washington law was "the highest degree of care that human prudence is equal to." 645 F.2d at 732-35, citing Vannoy v. Pacific Power & Light Co., 59 Wash.2d 623, 369 P.2d 848 (1962). Admittedly, the "confusing evolution" of the standard made the question difficult, but we concluded that the state standard applied in the first trial, the "highest degree of care compatible with practical operation," ⁵ was inconsistent with and had been supplanted by the Vannoy standard. We reasoned that the former standard "allows expense and efficiency to balance more heavily against the risk involved than would be allowed under the [Vannoy ] standard," 645 F.2d at 735, and that "the proper expense-benefit ration would be different where practicality is not taken into consideration," id. at 734-35.

Subsequent to the consolidated trial on remand, the Washington Court of Appeals decided Keegan. In that opinion, the court held that the "compatible with practical operation" language was not inconsistent with the Vannoy standard, and it specifically disapproved Richardson I :

We do not agree with the Ninth Circuit's analysis. The omission in recent Washington cases of the entire standard of care statement from Scott should not be construed as a revocation of the "practical operation of the utility" from consideration by the trier of fact. A consideration of the practical operation of the utility is intrinsically included in any analysis of whether the utility exercised due care.

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