Williams v. Mitchell County Elec. Corp.

• Decision Date: 24 May 2002
• Docket Number: No. A02A1406, No. A02A1407.
• Citation: 255 Ga. App. 668,566 S.E.2d 356
• Parties: WILLIAMS v. MITCHELL COUNTY ELECTRIC MEMBERSHIP CORPORATION (two cases).
• Court: Georgia Court of Appeals

566 S.E.2d 356

255 Ga. App. 668

WILLIAMS v. MITCHELL COUNTY ELECTRIC MEMBERSHIP CORPORATION (two cases).

Nos. A02A1406, A02A1407.

Court of Appeals of Georgia.

May 24, 2002.

Reconsideration Denied May 24, 2002.

Certiorari Granted September 17, 2002.

Burge & Wettermark, Frank T. Burge, Frank C. Vann, Camilla, for appellants.

McNatt, Greene & Thompson, Hugh B. McNatt, Richard S. Thompson, Vidalia, James C. Brim, Jr., Camilla, John W. Bass, Sr., Cairo, for appellee.

ELDRIDGE, Judge.

These are appeals from the grant of a judgment notwithstanding the verdict for the estate and in a wrongful death action for electrocution of a farm worker who tried to disengage a neutral wire from a cotton picker and came within ten feet of a high-voltage line. The trial court granted the motion, because the court contended that the High-voltage Safety Act was violated and that the deceased assumed the risk of injury. The jury rejected the affirmative defense of assumption of risk, and there was no evidence to show that the deceased had both objective and subjective appreciation of the danger; therefore, the trial court erred. However, the 1992 High-voltage Safety Act immunizes the power company's negligence of omission and commission in placement and maintenance of such lines when there had been no notice given. Thus, the Act applied barring liability, because there had been no notice.

In 1949, the Mitchell County Electric Membership Corporation erected a high-voltage power line above ground along Strawberry Road. The power line consisted of two copper wires, strung one above the other; the lower was neutral and the higher was the phase wire. Each wire was a single strand of number six gauge copper wire, which was the smallest used by Mitchell EMC; however, beginning over 70 years ago, Mitchell EMC had gone to the general use of a thicker, braided aluminum wire to avoid stretching. Over time, a single strand of copper wire will stretch, causing greater sagging of the power lines. The poles were placed over 495 feet apart, causing a sag so that the top line was nineteen feet two inches instead of at least twenty-two feet above the ground, and the neutral was at twelve feet six inches instead of eighteen feet as required by the National Electric Safety Code. Mitchell EMC followed the NESC standards as testified to by Donnie Stanfill, engineering technician, and Alex Rex Hutto, operations superintendent, for Mitchell EMC. To avoid sagging, NESC required shorter spans, resulting in higher wires; the pole placement had been violated here. Thus, this site failed to meet the minimum NESC requirements at the time of death for pole placement, power line height, and maintenance.

Further, Mitchell EMC kept no records of the clearance over the field and did not measure the wire after it had fully stretched. It never had its employees inspect or maintain this span after the stringing of the wires in 1949. Mitchell EMC serves 14 rural counties with 4,800 miles of power lines. Mitchell EMC was aware that its lines crossed fields where farm equipment was operated. Other power companies in Georgia were aware that larger equipment was used in farming and began to raise the lines as early as the 1960s; however, Mitchell EMC did not do this.

On December 15, 1996, Donald Wyatt Williams, the deceased, drove a cotton picker, which was fifteen feet high, into the field from Strawberry Road and commenced picking cotton, four rows at a time, going west across the field toward the power lines; this required him to keep his attention on the rows at all times in order to keep the picker straight with the rows. Before he completed the first four rows, the neutral wire, sagging twelve feet from the ground, snagged on a light on the side of the picker's collection basket. Williams climbed up onto the second step of the basket of the cotton picker and attempted to remove the neutral wire. The other operators saw Williams near the wires on top of the cotton picker but did not realize that he was in any danger until he was electrocuted. Williams did not appear to be aware of any danger. Looking at the power lines up close, it was not observable whether there was insulation on the wires. Williams appeared to have been shocked, lost his balance, and stretched out his arm to regain his balance when he was electrocuted.

The coroner found that Williams died from electrocution. Plaintiff's expert witness testified that the line carried 7,200 volts. There was no evidence that anyone had given the required notice of work within ten feet of the high-voltage lines.

1. Plaintiff contends that the trial court erred in granting a j.n.o.v. for assumption of the risk. We agree.

The evidence established clearly and palpably that Mitchell EMC had negligently maintained its high-voltage lines too close to the ground and the poles too close together, and this was contrary to the NESC and the practice of both Mitchell EMC and other power companies. "A power company is charged with the duty of exercising ordinary care in the construction and maintenance of its wires, poles, transformers and equipment." Collins v. Altamaha Elec. Membership Corp., 151 Ga.App. 491-492(1)(A), 260 S.E.2d 540 (1979). A power company must maintain its lines "at such a location as not to injure persons who might be reasonably expected to come in contact with such lines." Carden v. Ga. Power Co., 231 Ga. 456-457, 202 S.E.2d 55 (1973).

For the defense of assumption of a known risk of danger, the defendant must prove not only that the plaintiff knew of the danger but also that the plaintiff appreciated such danger. North Ga. Elec. Membership Corp. v. Webb, 246 Ga.App. 316, 319-320(2), 540 S.E.2d 271 (2000). A person cannot assume a risk about which he lacks knowledge and fails to appreciate. Roberts v. King, 102 Ga.App. 518, 521, 116 S.E.2d 885 (1960). Generally, assumption of the risk is a factual issue to be determined by a jury and not by the trial court. North Ga. Elec. Membership Corp. v. Webb, supra at 319, 540 S.E.2d 271; Stegall v. Central Ga. Elec. Membership Corp., 221 Ga.App. 187, 190(2), 470 S.E.2d 782 (1996). "As a general rule a person of ordinary intelligence, a layman in the field of electricity[,] is not credited with information concerning the dangerous character of wire placed in a position or strung at heights which indicate the wire is harmless." Planters Elec. Membership Corp. v. Burke, 98 Ga.App. 380, 388(1), 105 S.E.2d 787 (1958).

The Supreme Court has repeatedly made clear that the knowledge necessary for the defense of assumption of the risk means not only actual knowledge but also subjective knowledge of the danger.

In Georgia, a defendant asserting an assumption of the risk defense must establish that the plaintiff (1) had actual knowledge of the danger; (2) understood and appreciated the risks associated with such danger; and (3) voluntarily exposed himself to those risks. Knowledge of the risk is the watchword of assumption of the risk, and means both actual and subjective knowledge on the plaintiff's part. The knowledge that a plaintiff who assumes a risk must subjectively possess is that of the specific, particular risk of harm associated with the activity or condition that proximately causes injury. The knowledge requirement does not refer to a plaintiff's comprehension of general, non-specific risks that might be associated with such conditions or activities. As stated by Dean Prosser: In its simplest and primary sense, assumption of the risk means that the plaintiff, in advance, has given his consent to relieve the defendant of an obligation of conduct toward him, and to take his chances of injury from a known risk arising from what the defendant is to do or leave undone.

(Punctuation and footnotes omitted; emphasis in original.) Vaughn v. Pleasent, 266 Ga. 862, 864(1), 471 S.E.2d 866 (1996); accord Muldovan v. McEachern, 271 Ga. 805, 807-808(2), 523 S.E.2d 566 (1999) (wilful or wanton conduct does not bar assumption of the risk defense). "[T]he standard to be applied in assessing an assumption of the risk defense is a subjective one, geared to the particular plaintiff and his situation, rather than that of a reasonable person of ordinary prudence who appears in the completely separate defense of contributory negligence." (Punctuation and footnote omitted.) Muldovan v. McEachern, supra at 808(2), 523 S.E.2d 566.

The record is devoid of even a scintilla of evidence that Williams had subjective knowledge of the danger and consciously encountered the danger of electrocution from these low hanging wires. The evidence is to the contrary in that the eyewitnesses had no subjective knowledge or appreciation of the risk and in their lay opinion, and the jury was authorized to find that neither did the deceased have subjective knowledge and appreciation of the risk. Therefore, the trial court erred in granting a j.n.o.v. on the grounds of assumption of the risk.

2. Plaintiff contends that the trial court erred in finding that the 1992 High-voltage Safety Act barred recovery, requiring the J.N.O.V. We are constrained to disagree, because the 1992 Act drastically changed the liability of power companies when no notice was given.

When the General Assembly passed Ga. L. 1960, pp. 181, 185 (OCGA § 46-3-30 et seq.), the Act had one purpose: to make it safer to work around "high-voltage lines." The caption of the Act stated: "to provide the precautions to be taken in the proximity of high-voltage electric lines for the prevention of accidents." Id. at 181. However, the caption never mentioned the limitation of liability or immunity, and in fact § 10 expressly stated that "[n]othing in this Act shall be construed or applied as limiting or reducing the duty or degree of care now applicable to owners or operators of such high-voltage lines with respect to damage or loss to person or property." Id. at 185. A condition precedent for a power company...