Yampa Valley Elec. Ass'n, Inc. v. Telecky

Decision Date27 September 1993
Docket NumberNo. 92SC384,92SC384
PartiesYAMPA VALLEY ELECTRIC ASSOCIATION, INC., a Colorado corporation, Petitioner/Cross-Respondent, v. Gloria G. TELECKY, Respondent/Cross-Petitioner.
CourtColorado Supreme Court

Hall & Evans, Peter F. Jones, Malcolm S. Mead, Robert J. McCormick, Denver, for petitioner/cross-respondent.

Kenneth L. Keene, Denver, Spence, Moriarity & Schuster, J. Douglas McCalla, Jackson, WY, Philip White, Jr., Laramie, WY, for respondent/cross-petitioner.

Justice ERICKSON delivered the Opinion of the Court.

This wrongful death action was brought by Gloria Telecky to recover damages for the electrocution death of her husband, Marvin, by electric power lines that were constructed and maintained by the Yampa Valley Electric Association (Yampa Valley). We granted certiorari to review the court of appeals decision in Telecky v. Yampa Valley Electric Association, 837 P.2d 253 (Colo.App.1992), which reversed a judgment entered on a jury verdict in favor of Yampa Valley, and ordered a new trial.

We granted certiorari to review two issues:

Whether a jury must be informed as to the circumstances sufficient to rebut the presumption created by Instruction 20; and

Whether Instruction 20 implied to the jury that compliance with an administrative standard was equivalent to exercising the highest degree of care possible.

Both issues are moot if Instruction 20 was improperly given. Because we decide that both the trial court and the court of appeals erred in concluding that Instruction 20 was proper in this case, we need not, and do not, decide the issues set forth by the parties for review on certiorari. The two issues we decline to address are necessarily conditioned on the premise that the court of appeals correctly held that Instruction 20 was proper in this case as an accurate statement of the applicable law, a conclusion which we now hold was erroneous.

The primary issue on appeal is whether the trial court erroneously gave Instruction 20 to the jury regarding the presumptive effect of Yampa Valley's compliance with the National Electric Safety Code (NESC) in the construction and maintenance of the power line that crossed the Telecky property. We affirm the order of the court of appeals granting a new trial, but reverse, in part, because of the directions given for the new trial, and return this case to the court of appeals for remand to the trial court for a new trial consistent with the directions contained in this opinion.

I

On October 13, 1986, Marvin Telecky was electrocuted when the aluminum ladder he was using to perform maintenance work on his two story home came in contact with an uninsulated 7,200 volt high tension electric power line. The power line, which was constructed and maintained by Yampa Valley, ran from the street in front of the Telecky residence, across the side yard of the property, to a pole and transformer in the backyard.

Marvin Telecky's widow filed a wrongful death action against Yampa Valley that was predicated on the recognition that "electricity is one example of an instrumentality requiring an enhanced degree of care by those supplying it to others for domestic and commercial use." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 588 (Colo.1984). Therefore, the negligence standard of care to which Yampa Valley is to be held in this case is that of "the highest degree of care which skill and foresight can attain consistent with the practical conduct of its business under the known methods and the present state of the particular art." Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 376-77, 41 P. 499, 501 (1895); accord Fed. Ins. Co. v. Public Serv. Co., 194 Colo. 107, 570 P.2d 239 (1977). Telecky alleged in her complaint that Yampa Valley negligently failed to: (1) warn Marvin of the dangers of the power line; (2) bury the power line below ground; (3) insulate the power line; (4) provide adequate clearance around the power line; (5) reduce the voltage in the power line before running it across the Telecky property; and (6) place the uninsulated wire at a greater distance from the residence, all of which would have reduced Marvin Telecky's risk of death by electrocution.

A dispute existed in the trial court as to whether the power lines were constructed and maintained in compliance with the NESC, which the Colorado Public Utilities Commission (PUC) presumes is reflective of "accepted good engineering practice in the electric industry" for purposes of regulating electric utilities that are subject to its jurisdiction. 1 At the time of trial, it was assumed by all parties, and the trial court, that Yampa Valley was regulated by the PUC and was subject to PUC Rule 18. 4 Code Colo.Reg. 723-3. It was later determined that Yampa Valley had given the requisite notice that exempted the utility from the jurisdiction of the PUC. See §§ 40-9.5-103 -104, 17 C.R.S. (1993). Neither Yampa Valley nor Telecky brought Yampa Valley's exemption from PUC jurisdiction to the trial court's attention. 2

At the conclusion of five days of testimony, counsel for both Telecky and Yampa Valley submitted proposed jury instructions to the trial court. Telecky's tendered Instruction 19 was a negligence per se instruction which advised the jury that Yampa Valley should be found negligent if the jury found that Yampa Valley had failed to comply with NESC industry standards. The trial court gave Instruction 19 and that instruction is not an issue on appeal. 3 However, in response to Instruction 19, Yampa Valley requested, and the trial court gave, Instruction 20 which is the primary issue before us on certiorari. 4 Instruction 20 creates a rebuttable presumption and is based on CJI-Civ.3d 3:5 (1988). It cannot be disputed that the rebuttable presumption language contained in Instruction 20 was based entirely on PUC Rule 18 and not on other generally accepted common law principles. Instruction 20 provided:

Instruction No. 20

Presumptions are rules based upon experience or public policy and established in the law to assist the jury in ascertaining the truth.

If you find by a preponderance of the evidence that the Telecky electric distribution line was constructed, installed and maintained in accordance with the applicable National Electric Safety Code, then the law presumes that the line complied with accepted good engineering practice in the electric industry.

You must consider this presumption together with all other evidence in the case in determining whether or not Yampa Valley Electric, Inc. negligently constructed the line.

The trial court, however, rejected Instructions 1 and 8 which Telecky offered to clarify the effect of Yampa Valley's compliance with the NESC and the standard of care applicable in negligence cases involving electric utilities. Telecky's tendered instructions stated:

Instruction No. 1

You are instructed that while conformity with the National Electric Safety Code standard is not an absolute defense to negligence while it may be evidence of due care, compliance with industry standards, or standards legislatively or administratively imposed, does not preclude a finding of negligence where a reasonable person would have taken additional precautions under the circumstances.

Instruction No. 8

The National Electric Safety Code contains minimum requirements and guidelines for the design, construction and maintenance of power lines.

The trial court concluded that Instructions 1 and 8 did not clarify the effect of Yampa Valley's compliance with the NESC, but would instead instruct the jury on the circumstances when the presumption in Instruction 20 is rebutted. The trial court stated that:

there are instructions regarding the nature of the industry and the requirement that the defendant use the best engineering available.... And the Court concludes that as now styled the model instruction [CJI Civ.3d 3:5] makes no reference to rebuttal of that presumption but merely indicates that it is a part of the evidence to be considered by the jury.

The jury returned a verdict in favor of Yampa Valley and Telecky appealed to the court of appeals. Telecky claimed that Instruction 20 was erroneous because at all times relevant to this case Yampa Valley was exempt from PUC regulation, and that, therefore, Instruction 20 contained statements of law that had no application to this case. Alternatively, Telecky asserted that Instruction 20 was prejudicially misleading in that it instructed the jury that compliance with the NESC was legally presumed to be compliance with "accepted good engineering practice." Telecky claimed that the legal presumption mandated by the instruction was misleading because if the jury found that Yampa Valley complied with the NESC, it could not find that Yampa Valley had not followed "accepted good engineering practice," and was negligent under the higher standard of care required of electric utilities.

The court of appeals concluded that the trial court did not err when it gave the jury Instruction 20 which included the rebuttable presumption derived from PUC Rule 18 because the instruction is a correct statement of law regardless of Yampa Valley's exemption from regulation by the PUC. Telecky, 837 P.2d at 255. The court of appeals also held that the challenged instruction was an incomplete and confusing statement of the applicable law because it did not instruct the jury on what would be sufficient to rebut the presumption. In ordering a new trial, the court of appeals directed the trial court on retrial to give Telecky's proposed Instructions 1 and 8 in addition to Instruction 20. Id. We disagree that Instruction 20, when PUC Rule 18 is not applicable, is a correct statement of the law that should be given on retrial and reverse the court of appeals direction to the trial court in that regard. Giving Instruction 20 in this case was not harmless error and the error requires a new trial. Accordingly, we affirm the court of appeals...

To continue reading

Request your trial
17 cases
  • Scott v. Matlack, Inc.
    • United States
    • Colorado Supreme Court
    • 14 Enero 2002
    ... ... We held in Yampa Valley Electric Association, Inc. v. Telecky, 862 P.2d ... ...
  • Bayer v. Crested Butte Mountain Resort, Inc.
    • United States
    • Colorado Supreme Court
    • 18 Mayo 1998
    ... ... Gast, 904 P.2d 478, 480 (Colo.1995), and Yampa Valley Electric v. Telecky, 862 P.2d 252, 257-58 ... ...
  • Martinez De Jesus v. Puerto Rico Elec. Power Auth., CIV. 00-1715(SEC).
    • United States
    • U.S. District Court — District of Puerto Rico
    • 24 Marzo 2003
    ... ... 56(c); See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202(1986); ... F.2d 200, 204 (1st Cir.1992); See also Boston Athletic Assn. v. Sullivan, 867 F.2d 22, 24 (1st Cir.1989); Medina-Muñoz ... & Light Co., 363 So.2d 834 (Fla.Dist.Ct.App.1978); Yampa Valley Electric Assoc., Inc. v. Telecky, ... 862 P.2d 252 ... ...
  • Meier v. McCoy
    • United States
    • Colorado Supreme Court
    • 6 Septiembre 2005
    ... ... Griff's, Inc., 184 Colo. 418, 520 P.2d 745 (1974) ... Yampa Valley Elec. Ass'n v. Telecky, 862 P.2d 252 ... ...
  • Request a trial to view additional results
2 books & journal articles
  • Inherently Dangerous and Ultrahazardous Activities: Standard of Care and Vicarious Liability
    • United States
    • Colorado Bar Association Colorado Lawyer No. 47-2, February 2018
    • Invalid date
    ...liability). [7] . Fed. Ins. Co., 570 P.2d 239; City of Fountain v. Gast, 904 P.2d 478 (Colo. 1995); Yampa Valley Elec. Ass’n v. Telecky, 862 P.2d 252 (Colo. 1993); Mladjan v. Pub. Serv. Co. of Colo., 797 P.2d 1299 (Colo.App. 1990); Denver Consol. Elec. Co. v. Lawrence, 73 P. 39 (Colo. 1903)......
  • Issue of Law
    • United States
    • Colorado Bar Association Colorado Lawyer No. 32-6, June 2003
    • Invalid date
    ...looking up. NOTES 1. See University of Denver v. Whitlock, 744 P.2d 54, 57 (Colo. 1987). 2. See Yampa Valley Elec. Ass'n v. Telecky, 862 P.2d 252, 254 (Colo. 3. See Moore v. City of Wynnewood, 57 F.3d 924, 928 (10th Cir. 1995). In Colorado state courts, denial of a motion for summary judgme......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT