Thornton v. Guthrie County Rural Elec. Co-op. Ass'n

• Decision Date: 20 February 1991
• Docket Number: No. 89-1142,89-1142
• Citation: 467 N.W.2d 574
• Parties: Daniel THORNTON, Appellee, v. GUTHRIE COUNTY RURAL ELECTRIC COOPERATIVE ASSOCIATION, Appellant. GUTHRIE COUNTY RURAL ELECTRIC COOPERATIVE ASSOCIATION, Appellant, v. BARHITE & LARSEN, INC., Appellee.
• Court: Iowa Supreme Court

Page 574

467 N.W.2d 574

Daniel THORNTON, Appellee, v. GUTHRIE COUNTY RURAL ELECTRIC COOPERATIVE ASSOCIATION, Appellant.

GUTHRIE COUNTY RURAL ELECTRIC COOPERATIVE ASSOCIATION, Appellant, v. BARHITE & LARSEN, INC., Appellee.

No. 89-1142.

Supreme Court of Iowa.

Feb. 20, 1991.

Rehearing Denied April 16, 1991.

As Amended April 22, 1991.

Gregory R. Brown, Hugh J. Cain, Thomas G. Fisher, Jr., and Stephen E. Eckley of Duncan, Jones, Riley & Finley, P.C., Des Moines, for appellant.

John P. Whitesell, Iowa Falls, for appellee Daniel Thornton.

James E. Walsh, Jr. and Paul W. Demro of Clark, Butler, Walsh & McGivern, Waterloo, for appellee Barhite & Larsen, Inc.

Considered by HARRIS, P.J., and LARSON, SCHULTZ, CARTER, and LAVORATO, JJ.

HARRIS, Justice.

Who must bear the burden of damages for a severely injured construction worker: his employer, an electrical construction contractor or the utility for which the work was being performed? The trial court fixed responsibility with the utility. We think the responsibility must rest with the construction company.

Plaintiff Daniel Thornton was employed as a construction laborer by Barhite & Larsen, Inc. (B & L). B & L is an electrical contractor which specializes in installing underground electric systems. Defendant Guthrie County Rural Electric Cooperative Association (the co-op) contracted with B &amp L to replace underground cable in the Lake Panorama area.

It was obviously important to de-energize the electrical lines during construction and the co-op agreed to do so. The jury found B & L to be negligent and its negligence to be the proximate cause of plaintiff's injuries. The jury fixed Thornton's damages at $400,000, an amount not challenged on appeal.

The co-op admitted its own negligence and proximate cause, then cross-petitioned against B & L, alleging B & L was negligent and required to indemnify the co-op in accordance with provisions in the contract between the co-op and B & L. When the case was tried to a jury the parties agreed that the court would decide the indemnity claims following the jury verdict.

The co-op's negligence claims against B & L proceed from a provision in the contract:

Section 1. Protection to persons and property. The bidder [B & L] shall at all times take all reasonable precautions for the safety of employees on the work and of the public, and shall comply with all applicable provisions of federal, state, and municipal safety laws and building and construction codes, as well as the safety rules and regulations of the owner [the co-op].

(Emphasis added.) The co-op's operational procedures stated:

In the following rules: SHOULD is recommended. SHALL is mandatory.

1. Insulated hardhats and safety glasses SHALL be worn at all times.

2. Rubber gloves SHALL be worn when making all connections on cables.

3. Circuits SHALL be opened and closed during approved live line tools.

4. Cable locating, cable testing and fault finding SHALL be undertaken only by a person or persons familiar with the system and qualified to operate the equipment in a safe manner.

In addition, the operating procedures included the following instruction:

The workman is likely to be at ground potential at all times, from contact with the earth or grounded equipment; therefore, special precautions are necessary to avoid electrical shock.

There was evidence that B & L did not follow safety procedures. Thornton's crew superintendent testified B & L did not train its workers in handling "hot lines or lines of electricity." He also testified B & L did not provide him or Thornton with a copy of B & L's operating procedures.

Jim Barhite, the principal owner of B & L, admitted he did not do anything to make sure his employees followed the operating procedures of the co-op. Consulting engineers testified to a number of safety violations, including that rubber gloves should have been worn and that the lines should have been grounded. At least three safety standards of the national electrical safety code were violated. Plaintiff himself testified that B & L did not provide training with regard to the handling of electric lines.

B & L's posttrial motion for judgment notwithstanding the verdict was sustained. The trial court determined that the co-op was the sole party responsible for Thornton's injuries. The court rejected the co-op's indemnification claim on two grounds, only one of which is defended on appeal: a finding that B & L was not negligent.

I. B & L's safety violations, required by the contract, amounted to negligence. Giarratano v. Weitz Co., 259 Iowa 1292, 1305, 147 N.W.2d 824, 832 (1967) ("where a contract imposes a duty ... neglect of that duty is a tort and an action ex delicto will lie"). There was ample evidence to support the jury's finding that B & L was negligent and that its negligence was a proximate cause of Thornton's injuries.

B & L nevertheless contends that, notwithstanding evidence of its safety violations, the accident had only to do with the co-op's negligence in energizing the line. B & L argues its construction activities are strictly limited to nonenergized lines, and its employees are only trained accordingly. The gist of the contention is that B & L could not be charged with negligence in failing to observe safety precautions for its employees because it could count on the lines being de-energized. In accepting this contention in its posttrial ruling the trial court relied heavily on the following provision in the contract:

3. Work on energized lines. Unless stated below all construction work including attachments to existing poles and line changes, is to be done with the lines deenergized. The hours during which existing lines will be deenergized are shown in the contractor's proposal. Approximately 0 miles of the lines changes are to be made with the lines energized and such lines are in the following location or areas: ... and are more fully described in the plans, specifications and contractor's proposal. For work in these locations the bidder must provide personnel capable of working on energized lines. All such work shall be performed to meet at least the safety rules and regulations prescribed by the owner for its employees including the use of rubber gloves, hot sticks and associated protective equipment, a copy of which rules and regulations may be examined at the office of the owner.

Judgment notwithstanding the verdict was not warranted unless B & L's position was established as a matter of law. The appropriate scope of review for judgments notwithstanding the verdict is...