Sewell v. Public Service Co. of Colorado, 90CA0563

Citation832 P.2d 994
Decision Date21 November 1991
Docket NumberNo. 90CA0563,90CA0563
PartiesSheila SEWELL, individually and on behalf of Chad Edward Sewell, Cory Everett Sewell and Christi Lea Sewell, Plaintiffs-Appellants, v. PUBLIC SERVICE COMPANY OF COLORADO, Defendant-Appellee. . III
CourtCourt of Appeals of Colorado

Schaden, Lampert and Lampert, Bruce A. Lampert, Patricia M. Jarzobski, Denver, for plaintiffs-appellants.

Kelly, Stansfield & O'Donnell, Timothy J. Flanagan, William L. Sasz, Denver, for defendant-appellee.

Opinion by Judge CRISWELL.

Plaintiff, Sheila Sewell, on behalf of herself and her children, instituted an action for the alleged wrongful death of her husband against defendant, Public Service Company of Colorado (PSC). The claim was based on her assertion that PSC was negligent in not giving warning of the existence of certain power transmission lines with which the private aircraft in which her husband was a passenger collided. The trial court, concluding that the circumstances demonstrated that PSC owed no duty of due care to plaintiff's decedent, granted PSC's motion for summary judgment. From that judgment plaintiff appeals, and we reverse.

The aircraft accident that resulted in the death of plaintiff's husband occurred at a point about one-half mile west of the developed portion of Red Cliff, Colorado. At that location the Eagle river has formed a canyon at the bottom of which there is both a railroad line and a highway.

Spanning this canyon is a motor bridge. The floor of this bridge is approximately 200 feet above the floor of the canyon.

This bridge is west of power transmission lines, consisting of three conductors, which were originally installed by PSC in the late 1920's or early 1930's. The lines cross the canyon at an oblique angle to, and at a substantially higher elevation than, the more westerly motor bridge. None of these three lines had colored balls or other markings to warn of their existence at the time of the accident.

There may exist some dispute as to the exact elevation of these lines and their length between the two towers, one on each side of the canyon, to which they are attached, as of the date of the accident. Shortly after the collision with these transmission lines, PSC's supervisor of the repair work estimated that the lines, at their highest point, were 500 feet above the floor of the canyon and that the span between the two towers was about 2000 feet. He insisted that, in repairing the three lines, each of which had been severed in the accident, his crew used approximately 6000 feet of wire. In a survey conducted sometime later, however, PSC estimated that the highest point of the lines had been some 425 above the floor of the canyon and that they had spanned a total of only 969 feet between the two towers.

This post-accident survey also estimated that the transmission lines were in excess of 400 feet from the motor bridge at their nearest point (considering both horizontal and vertical distance). Because the bridge and the lines exist at an angle, each to the other, the reasonable inference is that the lines, for most of their span over the canyon, were considerably further than 400 feet from the bridge.

On the late afternoon of the day of the accident, two witnesses observed the aircraft as it flew in a general westerly direction over the residential area of Red Cliff and along the canyon toward the bridge and the sun. Both these witnesses estimated its altitude, as it passed over or near this residential area, as between 600 and 900 feet (200 to 300 yards) above ground level. As it flew toward the bridge, they say that it began to climb, and then it turned, dived, and crashed. Neither realized at the time that it had struck PSC's transmission lines before crashing.

In asking the trial court to enter summary judgment in its favor, PSC relied, among other things, upon two regulations promulgated by the Federal Aviation Administration (FAA), found at 14 C.F.R. § 91.119(b) and (c) (1991), which regulate the height of aircraft in flight. The first regulation requires aircraft to maintain an altitude of 1,000 feet above the highest obstacle when flying "over any congested area of a city, town, or settlement." The second requirement is that, even in "sparsely populated areas," an aircraft "may not be operated closer than 500 feet to any ... structure."

After demonstrating that the motor bridge and its transmission lines were within the corporate limits of Red Cliff, and relying upon the information summarized above, PSC argued that it could not reasonably foresee that any aircraft would be flown westerly up the canyon from Red Cliff in the manner in which the decedent's aircraft was being flown. Thus, it concluded that, no harm to a third party being reasonably foreseeable from its failure to place warnings upon or near these lines, it was under no duty to do so. And, in support of this conclusion, it presented the opinion of an experienced pilot that the aircraft was being operated in a reckless manner and the opinion of an FAA administrator that the FAA regulations did not require PSC's lines to be marked.

To counter this argument, plaintiff first asserted that the evidence as to the elevation of PSC's transmission lines was fairly disputed and that, if the lines were 500 feet or more above the elevation of the canyon, another FAA regulation, 14 C.F.R. § 77.23(a)(1) (1991), would require the lines to be considered to be "an obstruction to air navigation." Further, she noted that, in any case, in an advisory circular issued in October 1985 (just a few months before the accident) the FAA recommended, but did not require, that any object which extended 200 feet above ground level should be marked. Likewise, plaintiff referred to a recommendation of the National Transportation Safety Board that transmission lines 200 feet or more above ground level, or any such lines crossing canyons (irrespective of their elevation), should be marked.

Next, plaintiff presented statistical evidence that, between January 1, 1983, and "mid-1988," there were 516 occasions in the United States when aircraft struck transmission lines, resulting in some 231 fatalities. Of these 516 incidents, 495, or 96%, involved collisions with unmarked lines.

Plaintiff also noted that PSC had placed marker balls on numerous of its lines in other locations. As an example, she presented copies of use permits issued by the United States Forest Service authorizing PSC to construct transmission lines in two national forests, but requiring such lines to be marked wherever they were 150 feet or more above "mean ground level."

Finally, plaintiff sought, through written interrogatories, to determine the number and nature of any accidents involving aircraft and transmission lines, occurring before the accident in question, of which PSC was aware. PSC, however, objected to providing such information because, it alleged, such information might involve incidents insufficiently similar to the circumstances surrounding the instant accident that evidence relating thereto would not be admissible. Hence, it averred that such information was irrelevant.

Plaintiffs sought an order compelling PSC to disclose such information. The trial court denied such discovery to them and, in doing so, rested its decision solely upon relevancy grounds.

After considering the foregoing factual materials, the court concluded that PSC had no duty to mark its transmission lines and, therefore, entered judgment for PSC. In comments made at the time that it initially announced this decision, the court noted that, except in instances involving the liability of manufacturers or sellers of defective products, no person is required to foresee that another person will be negligent or otherwise act in violation of the law. It concluded that, since the evidence here conclusively demonstrated that the aircraft was flying recklessly at the time that it struck PSC's wires, PSC could not reasonably foresee such actions on behalf of any pilot. Hence, it held that PSC had no duty under the factual circumstances portrayed to mark, or otherwise to give warning of, these lines.

I.

As a threshold issue, we must first determine what standard a court is to apply in passing upon a motion under C.R.C.P. 56 for the entry of summary judgment in a negligence action, if such motion is based upon the assertion that defendant owed to plaintiff no legal duty of due care because the resultant harm was unforeseeable.

Generally, when presented with a summary judgment issue, a court must decline to enter such a judgment if there exists a genuine dispute over any material fact. C.R.C.P. 56(h); Abrahamsen v. Mountain States Telephone & Telegraph Co., 177 Colo. 422, 494 P.2d 1287 (1972).

However, commencing with its decision in Metropolitan Gas Repair Service, Inc. v. Kulik, 621 P.2d 313 (Colo.1981), our supreme court has made clear that whether an actor owes a duty of due care to another is a question of law for resolution by the court. Observatory Corp. v. Daly, 780 P.2d 462 (Colo.1989); Perreira v. State of Colorado, 768 P.2d 1198 (Colo.1989); Taco Bell, Inc. v. Lannon, 744 P.2d 43 (Colo.1987).

In considering this question, the court must weigh various factors. One factor that must be considered, and one which may play a "prominent role" in its resolution, is whether it was reasonably foreseeable that harm to plaintiff might result from defendant's act or inaction. Observatory Corp. v. Daly, supra.

Historically, the Colorado appellate opinions respecting the manner in which the question of the foreseeability of harm to a plaintiff from a defendant's act or inaction was to be considered have not been uniform.

Many opinions have suggested that whether the harm was foreseeable is a matter to be considered by the fact finder in determining whether such act or omission constituted the proximate, or legal, cause of plaintif...

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