Shanks v. Davey Tree Surgery Co.

845 P.2d 483, 173 Ariz. 557, 117 Ariz. Adv. Rep. 46, 1992 Ariz. App. LEXIS 194
CourtCourt of Appeals of Arizona
DecidedJuly 14, 1992
DocketNo. 2 CA-CV 92-0009
StatusPublished
Cited by4 cases

This text of 845 P.2d 483 (Shanks v. Davey Tree Surgery Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Shanks v. Davey Tree Surgery Co., 845 P.2d 483, 173 Ariz. 557, 117 Ariz. Adv. Rep. 46, 1992 Ariz. App. LEXIS 194 (Ark. Ct. App. 1992).

Opinion

OPINION

FERNANDEZ, Judge.

Appellants Paul Shanks, his wife, and his children appeal from the granting of appellee Davey Tree Surgery Company’s motion for summary judgment in their personal injury action, arguing that Davey either contractually agreed or undertook to perform duties owed to the public by Tucson Electric Power Company (TEP) and that fact issues exist as to whether Davey breached the duty of care it owed the Shanks. We disagree and affirm.

In June 1989, Paul Shanks was working as a tree trimmer for a company that had been hired by a homeowner to trim some palm trees in his yard. Behind the yard was an alley used for the collection of trash and for utility easements. An uninsulated overhead TEP power line was located in the alley. While Shanks was trimming one of the trees, a seed pod that he had removed fell onto one of the overhead lines. When Shanks finished trimming the tree, he began to descend and then reached out to knock the seed pod off the line. As he attempted to touch the pod, he received a shock and suffered electrical burns to his hand and calf.

Davey Tree Surgery had apparently provided tree-trimming services to TEP since 1981. The contract in effect at the time of Shanks’s injury ran from January 1, 1987 through December 31, 1989. Davey’s records showed that it had performed work at the address where Shanks was injured in January 1982; the nature of the work is not listed. Davey was again in the area in October 1986. Its records do not show that it ever trimmed the tree in question. The contract did not specify a particular line clearance standard that Davey was required to meet.

Shanks filed suit against both TEP and Davey. Both defendants filed motions for summary judgment. Action on TEP’s motion was stayed because TEP was involved in bankruptcy proceedings. Davey’s motion was granted, and only that ruling is presently before us.

In reviewing the granting of a motion for summary judgment, we view the record in the light most favorable to the party against whom judgment was entered. Giovanelli v. First Federal Savings & Loan Association, 120 Ariz. 577, 587 P.2d 763 (App.1978). When material fact issues exist, the granting of summary judgment is improper. Orme School v. Reeves, 166 Ariz. 301, 802 P.2d 1000 (1990).

Shanks raises three issues on appeal: (1) Davey undertook to perform duties owed to the public by TEP, (2) Davey agreed to protect the public by virtue of its contract with TEP, and (3) a factual issue exists as to whether Davey’s conduct fell below the necessary standard of care.

[559]*559The question of the existence of a duty is a matter of law for the court. Beach v. City of Phoenix, 136 Ariz. 601, 667 P.2d 1316 (1983).

The question is whether the relationship of the parties was such that the defendant was under an obligation to use some care to avoid or prevent injury to the plaintiff. If the answer is no, the defendant is not liable even though he may have acted negligently in light of the foreseeable risks.

Markowitz v. Arizona Parks Board, 146 Ariz. 352, 356, 706 P.2d 364, 368 (1985). Unless Shanks has first established that Davey owed him a duty, there can be no issue as to whether Davey’s conduct breached a duty. Id.

In order to determine whether Davey owed a duty to Shanks, we must first examine the nature of the duty TEP owes the public. Because of the risk of serious injury from contact with electric wires, power companies have a duty to exercise a reasonable degree of care in maintaining their power lines, Salt River Valley Water Users’ Association v. Compton, 39 Ariz. 491, 8 P.2d 249 (1932), rev’d on other grounds, MacNeil v. Perkins, 84 Ariz. 74, 324 P.2d 211 (1958), and to take precautions whenever it can reasonably anticipate that people will come into contact with its lines. Grant v. Arizona Public Service Co., 133 Ariz. 434, 652 P.2d 507 (1982). Moreover, utilities are required to comply with the National Electrical Safety Code, Gonzales v. Arizona Public Service Co., 161 Ariz. 84, 86, 775 P.2d 1148, 1150 (App.1989), which provides, in part: “Trees which may interfere with ungrounded supply connectors should be trimmed or removed.”

Shanks argues that Davey assumed TEP’s duties to protect the public pursuant to Restatement (Second) of Torts § 324A (1965). Section 324A provides as follows:

One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of a third person or his things, is subject to liability to the third person for physical harm resulting from his failure to exercise reasonable care to protect his undertaking, if
(a) his failure to exercise reasonable care increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by the other to the third person, or
(c) the harm is suffered because of reliance of the other or the third person upon the undertaking.

That section, however, does not support Shanks’s contentions. First, there is no allegation that Davey’s negligence served to increase any harm to Shanks as required by § 324A(a); at most, Davey is alleged to have failed to act. Second, there is no contention that Shanks relied upon Davey to perform any services, a requirement for the application of § 324A(c). Shanks has not shown that he even knew of the contract between Davey and TEP, much less relied on it. Finally, § 324A(b) applies only if Davey undertook to perform the duties owed by TEP; it does not serve to create that undertaking. Shanks contends that Davey owed him a duty pursuant to the language of its contract with TEP.

It is clear that a duty to exercise care for the benefit of third parties may arise from a contractual relationship. Forbes v. Romo, 123 Ariz. 548, 601 P.2d 311 (App.1979). Here, TEP chose not to do the tree trimming with its own personnel but instead contracted with Davey to perform the service. The contract provided, in pertinent part:

Owner requires as a part of its utility operations to have a certain work performed, as follows:
To provide manpower, equipment, tools, and supervision necessary to perform tree trimming and clearance work as required by Tucson Electric Power Company.

Shanks also cites language in the contract that required Davey to perform all work “utilizing recognized and accepted industry practices and procedures applicable to such work” and “to abide by all applicable laws, rules, regulations and practices____”

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845 P.2d 483, 173 Ariz. 557, 117 Ariz. Adv. Rep. 46, 1992 Ariz. App. LEXIS 194, Counsel Stack Legal Research, https://law.counselstack.com/opinion/shanks-v-davey-tree-surgery-co-arizctapp-1992.