Stancill v. Potomac Elec. Power Co., 82-1091

• Decision Date: 02 October 1984
• Docket Number: No. 82-1091,82-1091
• Citation: 744 F.2d 861
• Parties: Raymond A. STANCILL, Allyson B. Kefauver, Personal Representative of the Estate of John William Kefauver, Deceased, Appellants v. POTOMAC ELECTRIC POWER CO., A Corporation.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 861

744 F.2d 861

240 U.S.App.D.C. 237

Raymond A. STANCILL, Allyson B. Kefauver, Personal Representative of the Estate of John William Kefauver, Deceased, Appellants v. POTOMAC ELECTRIC POWER CO., A Corporation.

No. 82-1091.

United States Court of Appeals District of Columbia Circuit.

Argued Nov. 3, 1982.

Decided Oct. 2, 1984.

Appeal from the United States District Court for the District of Columbia (Civil Action No. 80-03160).

Stanley M. Karlin, Bethesda, Md., with whom Henry E. Weil, Rockville, Md., was on the brief, for appellants.

Martin H. Freeman, Washington, D.C., with whom Alan S. Feld, Washington, D.C., was on the brief, for appellee. Joseph D. Bulman, Washington, D.C., also entered an appearance for appellee.

Before ROBINSON, Chief Judge, MIKVA, Circuit Judge, and MacKINNON, Senior Circuit Judge.

Opinion PER CURIAM.

PER CURIAM:

Appellants protest the District Court's award of summary judgment to Potomac Electric Power Company (Pepco) in a diversity action for damages arising out of an electrical accident in Maryland. Raymond A. Stancill was injured and John William Kefauver was killed when an aluminum ladder they were handling came into contact with an uninsulated high-voltage distribution line owned and maintained by Pepco. The District Court ruled that they assumed the risk by failing to comply with Maryland's High Voltage Line Act, ¹ and thus foreclosed any recovery. We affirm, likewise, on the basis of assumption of risk, but for a somewhat different reason from that stated by the District Court.

I

Stancill and Kefauver were skilled in the roofing and guttering trade, ² and experienced in the use of aluminum ladders. ³ In 1980, they were hired by Charles and Lisa Itte to install gutters and downspouts at their home in Takoma Park, Maryland. ⁴ Neither Stancill nor Kefauver notified Pepco that at some point they would be working on a gutter within ten feet of the distribution line. ⁵

The two men arrived at the Itte home on May 24, 1980, and unloaded two 40-foot aluminum extension ladders from their truck. They then commenced the process of measuring and installation. As they began to maneuver one of the ladders ⁶ against the house, Stancill checked for overhead power lines. ⁷ He saw the distribution line strung diagonally across the front lawn, ⁸ and noticed that it had a different appearance from the service lines extending from a utility pole to the house. ⁹ Kefauver, holding the ladder, began to position it, and in the process the ladder either touched the distribution wire or came within arcing distance of it. Stancill suffered third-degree burns and Kefauver was electrocuted. ¹⁰

Appellants ¹¹ brought suit in the District Court. Jurisdiction was invoked solely on diversity of citizenship. ¹² Appellants charged gross negligence on Pepco's part, and sought compensatory and punitive damages. After extensive discovery, Pepco moved for summary judgment, and the court granted the motion. ¹³ The court concluded that the failure of Stancill and Kefauver to abide by Maryland's High Voltage Line Act ¹⁴ constituted an assumption of the risk and barred recovery. ¹⁵ This appeal followed.

II

The substantive law applicable to this diversity action is that of Maryland. ¹⁶ The law of that state recognizes potential liability for harm caused by negligence, whether simple ¹⁷ or gross ¹⁸ in character. Appellants alleged that Pepco was grossly negligent in maintaining the uninsulated high-voltage distribution line. ¹⁹ An action based on either type of negligence is defeated by proof that the plaintiff assumed the risk ²⁰ or, perhaps, that he was contributorily negligent. ²¹

Accepting as true, for the time being, appellants' allegation that Pepco was grossly negligent, Pepco asserts that Stancill and Kefauver assumed the risk as a matter of Maryland law. ²² Since the District Court upheld Pepco in that regard, ²³ our task is to determine whether, in the circumstances here, Maryland law sustains that defense.

The Maryland courts have identified three elements to be established before a risk will be deemed legally assumed. The defendant must show that the plaintiff (1) had knowledge of the risk of danger, (2) appreciated that risk and (3) voluntarily exposed himself to it. ²⁴ Appellants argue that the evidence at trial did not measure up to these requirements. ²⁵ We reject this contention.

A careful reading of the record discloses beyond doubt that both Stancill and Kefauver, within the contemplation of Maryland law, knew of the existence and location of the distribution line. Kefauver had visited the Itte home for the purpose of estimating a price for installation of new gutters and downspouts. ²⁶ Surely, in conducting this survey, he had abundant opportunity to observe the unobstructed distribution line. ²⁷ Moreover, Stancill testified that when he and Kefauver moved the ladder to the front of the house, Kefauver saw the line. Stancill further testified that he, too, saw the overhead power lines, ²⁸ noticed the distance between the top of the ladder and the distribution line, ²⁹ and even realized that the wire was uninsulated. ³⁰ These undisputed facts dispel any notion that either man was unaware of this source of potential danger.

The record makes equally plain that both Stancill and Kefauver appreciated the risk posed by an aluminum ladder in close proximity to an energized high-voltage line. Maryland's standard on this score is objective: the risk is appreciated if " 'any person of normal intelligence in [the plaintiff's] position must have understood the danger.' " ³¹ And the Maryland high court has long considered electricity a generally-known and well-understood potential peril that anyone of adult age must be taken to comprehend. ³² Maryland law thus compels the conclusion that both men must be charged with appreciation of the risk.

It follows that Stancill and Kefauver voluntarily assumed the risk within the meaning of the applicable Maryland law. "When a person undertakes work which exposes him to obvious dangers which he knew or had the opportunity to know, he must" under the law of that state "be considered as having assumed such risks, and he cannot recover for any injuries resulting therefrom." ³³ The case before us presents exactly that situation, ³⁴ though certainly it need not have. Simply by complying with procedure specified in Maryland's High Voltage Line Act, ³⁵ the risk presented by the distribution line could have been completely eliminated. In declining to pursue that alternative, Stancill and Kefauver, in the words of the Maryland court, "preferred convenience to safety and knowingly took the chance." ³⁶ The District Court did not err when it held that appellants' action was barred by the Maryland doctrine of assumption of risk. ³⁷

The judgment appealed from is accordingly

Affirmed.

1 Discussed infra note 35.

2 Appellee's Appendix (Ae.App.) 35, 39, 40, 55-58. See also note 3 infra.

3 Stancill had worked with aluminum ladders for at least seven years prior to the date of the accident. A house painter for two years, he had used them in the exterior painting of more than 50 homes. Ae.App. 47, 48-49. Knowing that as conductors of electricity they could become hazardous, Ae.App. 49, 51, he customarily took precautions against potential shock from overhead power lines. Ae.App. 52-54. Later, Stancill took jobs successively with two companies engaged in the roofing and guttering business, Ae.App. 55, 58, in which metal ladders were used routinely. Ae.App. 56. He worked on more than 100 jobs with aluminum ladders which, at least two-thirds of the time, were 32 feet or longer. Ae.App. 59-61. On each job he would locate the electric service lines and was careful to keep ladders away from them, Ae.App. 56, 61; "[w]e always need to be careful of them," he said, "it was just where they were positioned as to the house as to where to move the ladder--not to come in contact with them." Ae.App. 56. He would also look for the pole-to-pole distribution lines to make sure that they were a safe distance from where he was working. Ae.App. 57, 62. Stancill enjoys perfect vision. Ae.App. 44.

Similarly, Kefauver's "main line of business for seven years was with roofing and guttering." Ae.App. 39. There was no indication that Kefauver had any visual impairment on the date of the accident.

4 The Itte's hired Capitol Roofing Company, Inc., to perform the work. Capitol subcontracted the job to Kefauver, who employed Stancill to assist him. Ae.App. 63-64.

5 See note 35 infra.

6 On the side of the ladder, approximately four feet from the bottom, was a prominent orange, black and white decal warning "DANGER--WATCH FOR WIRES--THIS LADDER CONDUCTS ELECTRICITY." Ae.App. 37, 42, 85. Bracketing the words "THIS LADDER CONDUCTS ELECTRICITY" were orange depictions of lightning bolts. Ae.App. 85. A second decal on the ladder, flagged by the word "CAUTION," provided a guide for positioning the ladder and, at the bottom in bold letters, the admonition "READ ADDITIONAL INSTRUCTIONS ON LADDER." Ae.App. 86-87.

7 Ae.App. 69, 76.

8 Ae.App. 76. The line was installed in 1935. Suspended 25 feet above the ground, it was unobscured by structures or foliage, and plainly visible from the area below. Ae.App. 22, 24-25, 26-28. At its closest point to the house, the line had a 7-foot, 5-inch clearance from the left front corner of the roof overhang. Ae.App. 21. After 40 years without apparent mishap, one Wesley Howard brought an aluminum ladder into contact with the distribution line and sustained an electrical shock and injuries. Howard sued Pepco, alleging negligence as the cause of his injuries. The court found that, assuming that Pepco was primarily negligent, Howard was guilty of contributory negligence as a matter of law, and entered summary judgment against him. Howard v. Sylvester, Civ. No. R-78-1851 (D.Md. Dec. 5, 1980), aff'd, 688 F.2d 832 (4th Cir.1982) (per curiam).

9 Ae.App. 83. Stancill testified that...