Tiger v. Verdigris Valley Elec. Coop.

• Decision Date: 21 June 2016
• Docket Number: No. 112,777,112,777
• Citation: 410 P.3d 1007
• Parties: Misty Darlene TIGER, individually and as Administrator of the Estate of Jason Lee Tiger, deceased; J.L.T., a minor child; and B.L.T., a minor child, by and through their natural mother and next friend, Misty Darlene Tiger, Appellants, v. VERDIGRIS VALLEY ELECTRIC COOPERATIVE, an Oklahoma not for profit cooperative, Appellee, and Integrated Service Company LLC, d/b/a INSERV, an Oklahoma limited liability company, Defendant.
• Court: Oklahoma Supreme Court

410 P.3d 1007

Misty Darlene TIGER, individually and as Administrator of the Estate of Jason Lee Tiger, deceased; J.L.T., a minor child; and B.L.T., a minor child, by and through their natural mother and next friend, Misty Darlene Tiger, Appellants,

v. VERDIGRIS VALLEY ELECTRIC COOPERATIVE, an Oklahoma not for profit cooperative, Appellee,andIntegrated Service Company LLC, d/b/a INSERV, an Oklahoma limited liability company, Defendant.

No. 112,777

Supreme Court of Oklahoma.

FILED JUNE 21, 2016

REHEARING DENIED SEPTEMBER 19, 2016

Bryce A. Hill, Law Office of Bryce A. Hill, Tulsa, Oklahoma; and Jack G. Zurawik, The Zurawik Law Firm, Tulsa, Oklahoma, for Appellants.

Richard A. Gann, Stephen B. Riley, Thomas M. Askew, Stephanie L. Theban, Riggs, Abney, Neal, Turpen, Orbison & Lewis, Tulsa, Oklahoma, for Appellee.

COLBERT, J.

¶ 1 The issue in this matter is whether summary judgment was properly granted to decedent's employer pursuant to Parret v. UNICCO Service Co., 2005 OK 54, 127 P.3d 572. Because material issues of fact remain in dispute, this cause must be remanded to the trial court for proceedings consistent with this opinion.

FACTS AND PROCEDURAL HISTORY

¶ 2 On January 9, 2008, a field engineer for Verdigris Valley Electric Cooperative (Employer) met with a contract electrician for Integrated Service Company LLC (INSERV) in Catoosa, Oklahoma, concerning the installation of additional underground electrical service. They discussed the location of the additional service to the building and decided to use an existing junction box which the engineer observed was surrounded by a yellow metal barricade. He would later note: "I normally recommend that our members [customers] install a protective post an [sic] each corner of a pad mounted device in high traffic areas such as the INSERV plant, to help protect from getting ran [sic] over by vehicles or other equipment. I would never suggest having a barrier of any kind in front of any opening or door on VVEC equipment."

¶ 3 On June 5, 2008, a work crew from Employer was dispatched to install additional underground electrical service to INSERV. The four-man crew consisted of Jones, Jackson, Day, and Tiger. Jones and Jackson were journeymen electricians and Jones was the foreman. Day and Tiger were apprentices. Tiger had been in the journeyman apprentice program for approximately nine months of a four-year program. At the time of his death, Tiger had been certified only in the climbing school portion of his journeyman training. Day had worked for Employer only one month.

¶ 4 To provide the additional electric service to INSERV, the work crew would install three underground cables from a junction box to a transformer located on INSERV's premises. Employer, through its employees, decided the system would remain energized with high voltage electricity so that customers would not be inconvenienced by an interruption in electrical service. The existing junction box was energized with nominal 14,000/24,900 volts that would then transfer that high voltage electricity to the new service transformer and convert ("step down") the electricity into a much lower useable voltage which could be used by INSERV to run equipment.

¶ 5 When the crew arrived at the work site, they found the junction box surrounded by a yellow painted steel barricade, erected presumably to protect it from being struck by vehicles or trailers. The record does not establish who erected or owned the barricade, but Employer owned the junction box and associated electrical equipment. Affixed to the junction box was a warning concerning hazardous voltage and underground power cables and a notice from Employer which stated: "We need room to work safely on this device. Please keep shrubs and structures 10 feet away from the side with doors and 3 feet from the other sides. Obstructions may be damaged or removed during service restoration or maintenance." Employer had attached such stickers to its equipment for several years preceding Tiger's electrocution.

¶ 6 The barricade consisted of four corner posts with two rails connecting each post. The barricade did not satisfy the set back requirements of Employer's notice to keep structures ten feet away from the door and three feet away from the other sides. It also did not satisfy the set back requirements of the Occupational Safety and Health Administration (OSHA), the National Electric Safety Code, and the Oklahoma Administrative Code, which adopted the 2002 edition of the National Electric Safety Code. The space between the junction box and the metal barricade was six and one half inches at the left side, eight inches at the right side, and eleven inches at the back. The height of the top rail varied from thirty-seven to forty-six inches. Most importantly, only nineteen inches separated the front of the junction box and the metal barricade. Employer's work crews understood that if an obstruction needed to be removed, they had the authority to do so. The foreman of the work crew would later explain that he viewed the barricade as a "hindrance" rather than a safety issue and did not remove the barricade or cut the flow of electricity to the junction box. However, the "Job Briefing Form," which was signed by the foreman and initialed by each of the work crew "to document hazard recognition and work procedures," documented the work crew's full knowledge that they would "work in [a] hot cabinet" and that the installation would require "hard hats, safety glasses, rubber gloves, [and an insulated] blanket."

¶ 7 Each of the three cables installed to connect the junction box with the transformer would comprise the three phase service (phases A, B, and C). They would be capped off by installing connections that would operate as a "plug" to be inserted into its own bushing located within the junction box and within the transformer. This would permit electricity to flow from an overhead line into the junction box and into the INSERV transformer. An eight-foot long insulated rod known as a "shotgun stick" would be used to push the plug into the opening of the bushing on the junction box while another crew member wearing insulated gloves would guide the connection. This process was to be repeated for each of the three cables.

¶ 8 The work crew began its installation by pulling wire through the underground conduit that had been placed between the transformer and the junction box. They then attached connectors to the ends of the phase wires and seated those connectors into bushings on the transformer rather than placing the connectors in "parking stands"¹ to be seated later, after the junction box end of the wires had been fitted with connectors and seated into bushings within the junction box. The crew then took thirty minutes for lunch. Connections were installed on the junction box end of each cable. Jackson used the shotgun stick from a position outside the barricade to successfully insert cable "A" into the bushing on the junction box while Tiger leaned over the barricade using the insulated gloves to guide the connection.

¶ 9 Jackson then attached the shotgun stick to cable "B" while Tiger attempted to approximate the connection for that cable. However, the steel barricade was so close to the junction box that there were only nineteen inches of clearance between the barricade and the front work area of the junction box. After numerous attempts, to seat the phase B connector into the designated bushing of the junction box, it was determined that the task could not be accomplished from outside the steel barricade. With no admonition or warning from the crew foreman Jones, journeyman Jackson, or any other member of the work crew, Tiger climbed over the barricade to position his six feet two inches 200 pound frame inside the nineteen inches of space between the junction box and the steel barricade to assist in lining up the B phase connector with the bushing of the junction box so that it could be seated. As Jackson was making the connection, Tiger stepped back from Phase B, made contact with phase C, and screamed. He then appeared to freeze and not move. Within two to three seconds, Jones realized that Tiger was being shocked. Jones retrieved the "extendo stick" from the truck and ran an estimated 200 to 500 feet to the utility pole where the fuses were located to turn off the power. It took an estimated one to three minutes to pull the three fuses to interrupt the flow of high voltage electricity passing through Tiger's body. After the power was cut, the work crew pulled Tiger from the barricade. Resuscitation efforts failed and Tiger was pronounced dead at a local hospital.

¶ 10 Subsequent investigation into the cause of Tiger's electrocution revealed that, when Phase A was connected to the junction box, it energized the core of the transformer which then allowed "back feed" to the unconnected Phases B and C at the junction box. The parties would later dispute the role of the barricade in the electrocution. The United States Department of Labor, Occupational Safety and Health Administration, issued a citation for two "serious" safety violations. Under OSHA, "the word serious as used in serious hazard, serious violation or serious condition means a hazard, violation or condition such that there is a substantial probability that death or serious physical harm could result." 29 C.F.R. § 1960.2(v). The citation provided:

Citation 1 Item 1 Type of Violation: Serious

29 CFR 1910.269(a)(2)(iv)(B): Employees did not receive additional training where new types of equipment and changes in procedures necessitated the use of equipment that were different from those which the employee(s) would normally use.

On or about June 5, 2008, at the work site, employer did not train employee adequately on procedures of safety-related work practices that were different from those normally used, exposing employee to the hazards of electrocution by coming in contact with live parts while working inside of metal enclosed

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