Godesky v. Provo City Corp.

690 P.2d 541, 1984 Utah LEXIS 922
CourtUtah Supreme Court
DecidedSeptember 12, 1984
Docket18475
StatusPublished
Cited by28 cases

This text of 690 P.2d 541 (Godesky v. Provo City Corp.) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Godesky v. Provo City Corp., 690 P.2d 541, 1984 Utah LEXIS 922 (Utah 1984).

Opinions

J. DENNIS FREDERICK, District Judge:

Plaintiff suffered personal injuries while working as part of a roofing crew in Provo, Utah. He brought suit against three defendants, one of whom was dismissed prior to trial. The jury returned a verdict against the remaining two defendants, Provo City and Monticello Investors, for approximately $1.6 million. Only Provo pursues this appeal, contending that the trial court erred (1) in applying the legal standard of superseding causation, (2) by improperly instructing the jury in several respects, and (3) by excluding certain evidence. We find no error prejudicial to defendant, and we therefore affirm.

I. FACTS

In August of 1978, plaintiff was traveling through Provo on his way to the West Coast in search of employment as a stained-glass artist. With his money running low, plaintiff sought temporary employment. He was hired by Pride Roofing Company to work on a two- or three-day roof repair at defendant Monticello’s apartment building. Plaintiff had no experience in the roofing business.

The building has a flat asphalt roof. The job consisted of removing the old asphalt and replacing it with fresh asphalt. There were two wires that cut diagonally across the corner of the building; one was three feet above the roof, and the other was nine and one-half feet above the roof and parallel to the lower wire. The first day on the job, plaintiff contacted the lower wire numerous times without incident since the wire was not charged with electricity. He did not notice the second wire. Plaintiff had no experience with electrical wires.

On the second day, the lower wire interfered with the progress of the job. One of plaintiff’s supervisors told plaintiff to “tie off” the lower wire to the upper wire. A rope was thrown over the top wire, and the wire was pulled down within plaintiff’s reach so that it could be lashed to the lower wire. When he grasped the top wire with both hands, he received a shock of 2,400 volts. During the course of medical care, plaintiff underwent four amputation operations, one skin graft operation, and brain surgery to relieve an abscess. At the conclusion of the operations, both of plaintiff’s arms were amputated below the elbows. At the time of trial, plaintiff still suffered from loss of use and control of his left side and from pain. At trial, contrary to defendants’ theory of the case, the jury determined that plaintiff was not negligent.

Defendant Provo City owned and operated the electrical system that included the wire grasped by plaintiff. The wire was uninsulated and “hot” — it carried 2,400 volts and led directly to a transformer on a pole approximately six feet from the roof. The transformer was obscured by a tree, and plaintiff testified that he never noticed it. The wire and the lower unelectrified ground wire were installed in the 1960s by Provo over the then-one-story apartment building. A second story was later added to the building, which brought the wires in close proximity to the roof. Provo admitted that it had no inspection and maintenance program, that it had not recently trimmed the tree, and that there were no warning signs anywhere in the immediate vicinity (although Provo did use such signs within blocks of this location). Provo further admitted that stringing an uninsulated high-voltage wire over a residential property was contrary to its policy. Plaintiff’s expert witness testified that Provo had violated four provisions of the National Electric Safety Code; defendants’ expert testi[544]*544fied that Provo complied with the minimum height provision of that Code. The jury-found that Provo was negligent and 70 percent responsible for causing the accident.

Defendant Monticello owned the building. Two of Monticello’s representatives, Sanchez and Gough, hired Pride to replace the roof and inspected the roof with Pride's representative. Both Sanchez and Gough knew about the transformer. Sanchez knew that the top wire was a hot power line, and Gough watched from the ground as the top wire was pulled down within plaintiffs reach. Neither warned Pride or plaintiff about the wire. No one from Monticello requested Provo to turn off the power or to otherwise abate the dangerous condition. The jury found that Monticello was negligent and 20 percent responsible for causing the accident.

Pride was not a party in this action. According to testimony, Pride’s owner, Bill Ray, noticed the wires and traced them to the nearby electrical pole. He also observed the transformer. There was no testimony that Ray knew the upper wire was electrified, but he assumed that because of its height it would pose no problem. Neither of Pride’s employees supervising the job knew that the wire was electrified, but both guessed it was either a lead-in wire or a telephone wire. Both assumed it was insulated. One of the two threw the rope to plaintiff and instructed him to tie the wires together. The jury found that Pride was negligent and 10 percent responsible for causing the accident.

II. SUPERSEDING CAUSATION

Provo first cites as error the trial court’s failure to rule as a matter of law that Pride’s negligence was the sole proximate cause of plaintiff’s injury. Provo argues that Pride, as an experienced roofer, “knew or should have known” of the danger from the wire and that Pride had a duty not to expose its employee to a dangerous condition. Provo relies on the jury’s finding that Pride was negligent and was a proximate cause of plaintiff’s injury to support its position that Pride was the sole proximate cause.

Provo is correct that an employer has a duty not to expose his employees to unreasonable dangers. See, e.g., Riggs v. Missouri-Kansas-Texas Railroad, 211 Kan. 795, 508 P.2d 850, 854 (1973). Provo is also correct that a more recent negligent act may break the chain of causation and relieve the liability of a prior negligent actor under the proper circumstances. See Watters v. Querry, Utah, 626 P.2d 455 (1981) (Watters II); Restatement (Second) of Torts §§ 440-53 (1965). However, contrary to Provo’s argument, proximate causation is generally a matter of fact to be determined by the jury. Watters II, 626 P.2d at 457-58. The case upon which Provo most relies, Hillyard v. Utah By-Products Co., 1 Utah 2d 143, 263 P.2d 287 (1953), held that later negligence supersedes earlier negligence as a matter of law if the intervening negligent actor had actual knowledge of the danger but failed to avoid it. However, in the recent case of Harris v. Utah Transit Authority, Utah, 671 P.2d 217 (1983), we expressly overruled the portion of Hillyard that made such conduct the superseding cause as a matter of law and left the determination of relative fault (including causation) to the jury.

[T]he unsound distinction made in Hill-yard serves to frustrate the purpose of the Comparative Negligence Statute [U.C.A., 1953, § 78-27-37] by precluding the kind of comparison of fault that a jury ought to make. The allocation of liability should be made on the basis of the relative culpability of both parties.

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Bluebook (online)
690 P.2d 541, 1984 Utah LEXIS 922, Counsel Stack Legal Research, https://law.counselstack.com/opinion/godesky-v-provo-city-corp-utah-1984.