Westover v. East River Elec. Power Co-op., Inc.

• Decision Date: 01 July 1992
• Docket Number: No. 17607,17607
• Parties: Mark WESTOVER and Roxann Westover, Plaintiffs and Appellees, v. EAST RIVER ELECTRIC POWER COOPERATIVE, INC., Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 892

488 N.W.2d 892

Mark WESTOVER and Roxann Westover, Plaintiffs and Appellees, v. EAST RIVER ELECTRIC POWER COOPERATIVE, INC., Defendant and Appellant.

No. 17607.

Supreme Court of South Dakota.

Argued April 21, 1992.

Decided July 1, 1992.

James E. McMahon and Terry N. Prendergast of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, for plaintiffs and appellees.

William F. Day, Jr., and R. Alan Peterson of Lynn, Jackson, Shultz & Lebrun, Sioux Falls, for defendant and appellant.

GILBERTSON, Circuit Judge.

INTRODUCTION

In this action, plaintiffs sought to recover from the defendant for personal injuries sustained by plaintiff, Mark Westover, and loss of consortium sustained by his wife, Roxann Westover. The defendant appeals from a unanimous jury verdict for the plaintiffs. We affirm.

ISSUES PRESENTED

I.

WAS THE PLAINTIFF, MARK WESTOVER, CONTRIBUTORIALLY NEGLIGENT

MORE THAN SLIGHT AS A MATTER OF LAW?

II.

DID THE PLAINTIFF, MARK WESTOVER, ASSUME THE RISK OF HIS

INJURY AS A MATTER OF LAW?

FACTS

The plaintiff ¹ is a journeyman linemen who was injured on November 1, 1988, when he came into contact with a portion of an electrical substation during a de-energization procedure. De-energization is the cutting off of electrical power to the substation. As a result of these injuries, he lost both of his arms up to the elbow.

The plaintiff has been employed by Sioux Valley Empire Electric Association (Sioux Valley) since 1971. Through on the job training and correspondence courses, plaintiff was certified as a journeyman lineman on June 1, 1980. A journeyman lineman at Sioux Valley is expected to be able to perform the construction and maintenance work on Sioux Valley equipment. As Sioux Valley owns no electrical substations, plaintiff did not receive any training on them and prior to his accident, had very limited experience on substation de-energization work hereinafter described. He had participated in only one previous similar de-energizition of an electrical substation and that was many years prior to the accident.

The substations in the Sioux Valley territory are owned by defendant East River Electric Power Cooperative, Inc. (East River). ² By letter of April 4, 1988, East River notified Sioux Valley that the Garretson substation would have to be moved to replace its cement pilings. Sioux Valley's involvement was requested because it owned the disconnect switches, bypass switches and oil circuit reclosers (OCRs) which were used at the substation. ³ This project required the installation of a portable substation during this work so that service was not interrupted to Sioux Valley customers.

It was agreed that this work would be commenced on November 1, 1988. East River foreman, Richard Olson, arrived at the Garretson substation on October 31, 1988. He had conversations with Sioux Valley employees on that day but no specifics of the next day's work were discussed.

East River's Safety and Procedure Manual (hereinafter manual) contained a procedure for de-energizing a substation. Olson testified that he did not consult this manual prior to work on this project. He admitted that there probably was a copy of the manual in the glove box of his truck which he drove to the project.

The East River manual required a written switching order program for de-energizing a substation. This pre-printed document lists the necessary steps in a checklist format to complete the project. One purpose of this order is that it acts as a safety device so that no necessary steps are inadvertently omitted which could lead to an accident. No written switching order was ever prepared for this project. East River officials argue that it was not needed as this was a simple project in which all trained personnel knew what to do and there were frequent discussions as needed at the work site.

East River's manual also required that its radio dispatcher be furnished with a copy of the switching order. According to the manual, the dispatcher is in charge and must give his approval before any step can be undertaken. As the lineman on the scene completes a step in the process, he not only checks that off on his switching order, he informs the dispatcher by radio who also notes this work on the dispatcher's copy. In part, this acts as a backup safety device to see all required steps are completed in proper order. Not only was there no switching order, there was no radio contact with the dispatcher while the work was done at the substation prior to the plaintiff's injury.

The Sioux Valley line crew arrived at the Garretson site on November 1, 1988. They were to disconnect the "low side" of the substation while the East River personnel dealt with the "high side." ⁴ Like the plaintiff, the balance of the Sioux Valley crew at the site did not possess much experience with this type of substation de-energization work. Both Robert Austin and Marv Jastram, who were the foremen in charge of the Sioux Valley crew at various times on that day, testified they viewed East River's Olson as in charge of the entire operation and more specifically the safe coordination of the work.

The portable substation was hooked up to the Garretson substation. East River's Olson instructed that the switch on the north OCR of the Garretson substation be opened. Under normal conditions this would have cut off all power to that substation and de-energized it. However, in this instance, the portable substation continued to backfeed power into the Garretson substation. Although the plaintiff did have some experience working on OCR maintenance, it was after the OCR was de-energized. The unusual factor for him on the day he was injured, was that the OCR on the Garretson substation continued to be energized after that substation was shut down because of the backfeeding from the portable substation.

Next, Olson instructed the Sioux Valley crew to remove wires called "jumpers" which connected the Garretson substation to the distribution lines. Marv Jastram of Sioux Valley went up in a bucket truck to disconnect these "jumpers." If this removal would have been completed, the substation would have been entirely de-energized. Jastram had disconnected one jumper and it would have taken approximately thirty seconds to disconnect the other two.

At this point, the plaintiff looked up at switches which were located above the OCR. There are two sets of switches, the by-pass switches and the disconnect switches. Until Jastram completed the removal of the jumpers, the OCR would remain energized unless the disconnect switches above the OCR were opened. The open by-pass switches, which were located directly above the closed disconnect switches, allowed power to pass into the OCR. ⁵ Plaintiff decided to attempt the removal of the jumper wires from the OCR bushings.

Plaintiff apparently looked up at the by-pass switches and mistakenly assumed that he was looking at the disconnect switches. From the open switches he saw, he assumed them to be open disconnect switches and therefore he erroneously believed the power coming into the Garretson substation from the portable substation had been cut off to the OCR. ⁶ In reality he was looking at open by-pass switches which allowed power to go into the OCR.

Plaintiff climbed up on the OCR without the use of rubber gloves or a "hot stick" which are safety devices for working on energized equipment. He felt such equipment was unnecessary as at that point, he had visually satisfied himself that the OCR was completely de-energized. He testified that Sioux Valley only required the use of safety equipment, such as rubber gloves and hot sticks, on energized equipment. In prior work on that day on energized equipment, plaintiff had worked with both gloves and hot sticks.

At this point he came into contact with an OCR bushing, which was still energized from the 7200 volts backfeeding from the portable substation through the closed disconnect switches. Plaintiff was electrocuted. As a result of this incident he lost both of his arms to the elbow. ⁷

LEGAL ANALYSIS

STANDARD OF REVIEW

The defendant sought a directed verdict and later, to overturn the jury's verdict by a motion for judgment notwithstanding the verdict. Both were denied by the circuit court. Our standard of review of the circuit court's denial of a directed verdict and of the jury's determination in favor of this plaintiff is well established. We must examine the evidence in the light most favorable to the non-moving party and give him the benefit of all reasonable inferences. Robinson v. Mudlin, 273 N.W.2d 753, 755 (S.D.1979). The moving party is entitled to evidentiary consideration only where its evidence is uncontradicted or tends to amplify, clarify or explain the evidence in support of the verdict of the jury for the prevailing party. Nugent v. Quam, 82 S.D. 583, 152 N.W.2d 371, 374 (1967).

In such a context, it becomes our task to review the record and determine whether there is any substantial evidence to allow reasonable minds to differ. Haggar v. Olfert, 387 N.W.2d 45 (S.D.1985). This court does not weigh the evidence and substitute its judgment for that of the jury. Robinson v. Mudlin, supra; Berg v. Sukup Mfg., 355 N.W.2d 833, 835 (S.D.1984). The decision of the jury is likely to be upheld as questions of negligence, contributory negligence and assumption of the risk are for the determination by the jury "in all except the rarest of instances." Stoltz v. Stonecypher, 336 N.W.2d 654, 657 (S.D.1983). See also Myers v. Lennox Co-op Ass'n, 307 N.W.2d 863, 864 (S.D.1981).

It is only when the facts show beyond any dispute that plaintiff has committed negligence more than "slight," that it is appropriate for the circuit court and this court to hold, as a matter of law, for a negligent defendant. Starnes v. Stofferahn, 83 S.D. 424, 160 N.W.2d 421, 426 (S.D.1968). In the absence of a factual dispute, where the evidence warrants, the circuit court and this court can find...