Ring v. Public Service Co. of Oklahoma

775 P.2d 1356, 1989 WL 58531

• Court: Supreme Court of Oklahoma
• Decided: June 8, 1989
• Docket: 68908
• Status: Published

Opinions

OP ALA, Vice Chief Justice.

The sole issue presented by this appeal is whether the immunity afforded an employer by the terms of 85 O.S.Supp.1984 § 12¹ shields it from liability to a power company for a loss paid by the latter because of a violation of the “six-foot law.” We answer this question in the negative.

I.

THE ANATOMY OF LITIGATION

While working for Landers Well Service [employer],² John Randal Ring [employee] was accidentally electrocuted when a mast used to service oil wells came in contact with an electrical power line owned by Public Service Company of Oklahoma [PSO]. The employee’s wife and estate sued PSO for negligently maintaining its power line. PSO, in turn, brought a third-party claim against the employer, seeking indemnity for whatever loss it may incur because of the death claim.

The employer allegedly violated 63 O.S. 1981 § 981,³ also known as the “six-foot law.” That statute prohibits anyone from doing anything which might place them, or any object, “within six (6) feet of any high voltage electrical line or conductor....” In addition to criminal penalties, the terms of 63 O.S.1981 § 984 ⁴ 1) impose civil liability upon violators for all damage to electrical facilities and 2) allow indemnification “for all liability incurred by such owner or operator as a result of any such accidental contact.” [Emphasis added.] PSO predicated its third-party claim against the employer on the latter provision.

Because the employer had fulfilled its obligations under the Workers’ Compensation Act,⁵ it moved for summary judgment, urging that the terms of 85 O.S.Supp.1984 § 12⁶ immunize it from any further liability. The trial court ruled for the employer and PSO brings this appeal.⁷

II.

EMPLOYER’S POTENTIAL § 984 LIABILITY TO PSO

We answered the question raised by this appeal in Travelers Insurance Company v. L.V. French Truck Service, Inc.8 where the court held that § 12 immunity does not shield an employer from liability to a power company for a loss paid by the latter because of a violation of the “six-foot law.” We there expressly noted that the defense of contributory negligence is available to a defendant in a § 984 indemnity claim like that PSO is pressing here against the employer.⁹ Summary judgment given below to the latter, premised as it was solely on the compensation law’s immunity provision, must hence be reversed.

III.

ISSUES TO BE CONSIDERED ON APPEAL

In Travelers the constitutionality of § 984 — the indemnity-for-loss provision of the “six-foot law” — was questioned neither at the nisi prius nor in the appellate stage of litigation. Similarly, no argument advanced below or here tenders for our scrutiny a fundamental-law infirmity in that statute.¹⁰ ■ The constitutional validity of the “six-foot law” (§ 981) was settled by this court’s decision in Kimery v. Public Service Co. of Oklahoma.¹¹ To now inquire sua sponte into § 984’s conformity to the norms of our fundamantal law would be to afford appellate review on a theory neither litigant has tendered.¹² Today's opinion deals solely with those theories of relief and defense which the parties presented in the trial court.¹³

SUMMARY JUDGMENT FOR THE EMPLOYER IS REVERSED AND PSO’S THIRD-PARTY CLAIM IS REMANDED FOR FURTHER PROCEEDINGS NOT INCONSISTENT WITH THIS PRONOUNCEMENT.

HARGRAVE, C.J., and LAVENDER, SIMMS, DOOLIN and KAUGER, JJ., concur. HODGES, J., concurs by reason of stare decisis. ALMA WILSON and SUMMERS, JJ., dissent.

1 . The pertinent terms of 85 O.S.Supp.1984 § 12 provide:

"The liability prescribed in Section 11 of this title shall be exclusive and in place of all other liability of the employer ... at common law or otherwise, for such injury, loss of services, or death, to the employee, or the spouse, personal representative, parents, or dependents of the employee, or any other person. * * * " [Emphasis added.]

2 . The term “employer" includes the appellees, Edwin D. Landers, John E. Landers and Philip E. Landers.

3 . The terms of 63 O.S.1981 § 981 provide:

"No person, firm, corporation or association shall, individually or through an agent or employee and no person as an agent or employee of any person, firm, corporation or association, shall perform or permit any agent or employee to perform any function or activity upon any land, building, highway, or other premises, when it is possible during the performance of such activity for any person or employee engaged in performing work connected with or related to such function or activity to move to or to be placed in a position within six (6) feet of any high voltage overhead electrical line or conductor, or when it is possible for any part of any tool, equipment, machinery or material to be used by any such person or employee to be brought within six (6) feet of any such overhead high voltage line or conductor through any lateral, vertical or swinging motion during the performance of such function or activity.” [Emphasis added.]

4 .The provisions of 63 O.S.1981 § 984 are:

“Every person, firm, corporation, association, and every agent or employee of any such person, firm, corporation, or association, who violates any of the provisions of this act, shall be guilty of a misdemeanor, and upon conviction thereof, shall be liable to a fine of not more than Five Hundred Dollars ($500.00), or imprisonment in the county jail for a term not to exceed six (6) months, or both such fine and imprisonment; and in addition thereof, if such violation results in physical or electrical contact with any overhead high voltage line or conductor, the person, firm, corporation or association violating the provisions of this act, shall be liable to the owner or operator of such high voltage line or conductor for all damage to such facilities and for all liability incurred by such owner or operator as a result of any such accidental contact." [Emphasis added.]

5 . 85 O.S.1981 §§ 1 et seq.

6 . For the pertinent terms of 85 O.S.Supp.1984 § 12, see supra note 1.

7 . When the employee’s claim against PSO was settled before trial, the main action was dismissed with prejudice. The alleged negligence of PSO as well as that of the employee present issues that remain judicially unsettled.

8 . Okl., 770 P.2d 551, 553-554 [1989].

9 . Travelers Ins. v. L.V. French Tr. Serv., supra note 8 at 556, n. 18.

10 . The employer’s answer brief contains this statement: "It is a basic fact of appellate practice that no court will decide an issue which is not properly presented by the appeal under consideration.”

11 . Okl., 622 P.2d 1066, 1070-1071 [1981],

12 . This case presents no public-law question, nor does it tender one that is of general public interest. The appeal is confined to consideration of private rights between the parties litigant. Their interests in this controversy do not affect the public at large. Relief on grounds which were not presented to the trial court is not affordable when the forensic contest seeks a resolution of nonpublic demands. See Wetsel v. Independent School Dist. I-1, Okl., 670 P.2d 986, 994-995 [1983]; Barks v. Young, Okl., 564 P.2d 228, 229 [1977]; cf. McCracken v. City of Lawton, Okl., 648 P.2d 18, 21 [1982]; First Nat. Bank v. Southland Production Co., 189 Okl. 9, 112 P.2d 1087, 1098-1099 [1941].

13 .There is yet another barrier to reaching here the constitutional validity of § 984. A fundamental principle of judicial restraint requires that courts avoid passing upon constitutional questions in advance of strict necessity. Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439, 108 S.Ct. 1319, 1323, 99 L.Ed.2d 534 [1988]; see also, Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 157-158, 104 S.Ct. 2267, 2279, 81 L.Ed.2d 113 [1984]; see also, e.g., Jean v. Nelson, 472 U.S. 846, 854, 105 S.Ct. 2992, 2997-2998, 86 L.Ed.2d 664 [1985]; Gulf Oil Co. v. Bernard, 452 U.S. 89, 99, 101 S.Ct. 2193, 2199, 68 L.Ed.2d 693 [1981]; Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 483, 80 L.Ed. 688 [1936] (Brandeis, J., concurring); Smith v. Westinghouse Elec. Corp., Okl., 732 P.2d 466, 467, n. 3 [1987]; Schwartz v. Diehl, Okl., 568 P.2d 280, 283 [1977]; Dablemont v. State, Department of Public Safety, Okl., 543 P.2d 563, 564 [1975].

“[N]o matter how much they [the parties] may favor the settlement of an important question of constitutional law, broad considerations of the appropriate exercise of judicial power prevent such determinations unless actually compelled by the litigation before the Court. * * * ‘Courts should avoid passing on questions of public law even short of constitutionality that are not immediately pressing. Many of the same reasons are present which impel them to abstain from adjudicating constitutional claims against a statute before it effectively and presently impinges on such claims.’ ” [Emphasis added.] Barr v. Matteo, 355 U.S. 171, 172, 78 S.Ct. 204, 205, 2 L.Ed.2d 179 [1957] (quoting from Eccles v. Peoples Bank of Lakewood Village, Cal., 333 U.S. 426, 432, 68 S.Ct. 641, 644, 645, 92 L.Ed. 784 [1948]).