Woodis v. Oklahoma Gas & Electric Co.

1985 OK 62, 704 P.2d 483, 1985 Okla. LEXIS 193

• Court: Supreme Court of Oklahoma
• Decided: July 23, 1985
• Docket: 58815
• Status: Published

Opinions

LAVENDER, Justice:

The sole question Oklahoma Gas and Electric Company (OG&E) raises for our consideration in this appeal from a wrongful death judgment is whether the trial court erred in refusing to instruct the jury that the decedent was a trespasser on its transmission-line tower and that the only duty of care it owed him was not to injure him wilfully or wantonly. We conclude that under the facts adduced and the law applicable thereto OG&E was not entitled to the refused instruction and affirm the judgment.

The deceased was a fifteen-year old boy who climbed to the top of an unlighted transmission-line tower shortly after midnight. The tower was fifty feet high and stood in a field owned by a third party who is not a defendant in the case. The boy was killed by electricity that arced toward him from the high-voltage line or insulator when he reached the crossbar near the top of the tower.

The parents of the deceased boy brought this negligence action against OG&E on the theory that the electric company had breached the “high degree of care” it owed to their son by not properly maintaining its transmission-line tower. Specifically, the parents alleged and sought to prove that OG&E had violated safety standards set by the National Electrical Safety Code and had failed to take other safety precautions that were required under the circumstances. The parents contended that OG&E’s failure to make the tower more difficult for their son to climb had caused his death.

OG&E defended on the grounds that it had complied with the applicable safety code and that recovery was precluded by the decedent’s status as trespasser and by his contributory negligence. The trial court refused to instruct the jury that the boy was a trespasser on OG&E’s transmission-line tower and that the only duty of care OG&E owed the entrant was not to injure him wilfully or wantonly. OG&E claims error in this refusal of its requested instruction.

The jury returned a verdict for the parents, with an attribution of thirty-five percent of negligence to the deceased and sixty-five to OG&E.

I.

We first consider whether the decedent-entrant occupied the status of a trespasser at the time of his electrocution.

It is undisputed that OG&E owned a perpetual right-of-way easement across the land of a third party owner, upon which it maintained electric transmission towers and lines including the tower climbed by decedent; that it had possession of the towers and lines, and, by virtue of its easement, the right of possession of both.

We need not address the question of whether decedent was a trespasser upon real property, the easement, for the reason that we here determine that decedent occupied the status of a trespasser upon persona] property of OG&E, i.e., its tower and wires.

Trespass to personal property is delineated in 75 Am Jur 2d Trespass § 9 as follows:

“Trespass to personalty is the intentional use of or interference with a chattel which is in the possession of another, without justification. Any unlawful interference, however slight, with the enjoyment by another of his personal property is a trespass. ...”

Restatement of Torts, 2nd ed, further elucidates:

Ҥ 215. Definition of Possession of Chattel:

“In the Restatement of this Subject, a person who is in ‘possession of a chattel’ is one who has physical control of the chattel with intent to exercise such control on his own behalf, or on behalf of another.”

Ҥ 217. Ways of Committing Trespass to Chattel:

“A trespass to a chattel may be committed by intentionally

“(a) dispossessing another of the chattel, or

“(b) using or intermeddling with a chattel in the possession of another.”

As a part of the “Comment” following § 217, it is stated:

“e. Physical contact with Chattel:

“ ‘Intermeddling’ means intentionally bringing about a physical contact with the chattel. The actor may commit a trespass by an act which brings him into an intended physical contact with a chattel in the possession of another, as when he beats another’s horse or dog, or by intentionally directing an object or missle against it, as when the actor throws a stone at another’s automobile or intentionally drives his own car against it...."

Here the unauthorized entry by deceased upon the tower and wires in the possession of OG&E placed the deceased in the statue of a trespasser upon OG&E’s transmission tower and wires.

In Kaw City v. Johnson, 202 Okl. 6, 209 P.2d 699 (1949), we held that the owner of electric light and power wires owed no duty toward a trespasser thereon except to refrain from injuring him intentionally or wantonly. In Kaw City, supra, a nineteen year old boy climbed a county owned bridge on top of which Kaw City owned and maintained power wires with the consent of the county. The wires were bare in spots and in places covered with a weather insulation. The boy grabbed the wires twice to dim the city lights and upon grabbing them for the third time, received a jolting shock which caused him to fall to the bridge floor, and his death resulted. While the Court did not specifically address the fact that the trespass was on personal property, it was in fact a trespass upon personal property and the traditional duty-to-trespasser rule was applied.

Oklahoma appears to be committed to the view that liability in negligence varies with the status of the entrant complaining of injury, and applies the traditional rule as to trespassers as expressed in Kaw City v. Johnson, supra. Sutherland v. Saint Francis Hospital, Inc., Okl., 595 P.2d 780 (1979).

II.

We next consider whether a violation of the provisions of the National Electrical Safety code constitutes negligence per se and a breach of duty on the part of the electric company owed to the general public, including trespassers, through the invocation of a police power regulation. We answer in the affirmative.

There is substantial evidence in the record to support a jury finding of a violation of the National Electrical Safety Code of 1941 in that the lowest rung of the ladder on OG&E’s transmission tower was less than 6½ feet from “the ground, or other readily accessible place” as forbidden by the code. (Emphasis added). The jury was instructed that a violation of the code was negligence per se, and the jury was further instructed:

“An electric power company in using an easement or right-of-way for its poles wires and appliances in conducting its business is required to exercise the highest degree of care to maintain in good condition and render its business safe, and to use that degree of care, caution and circumspection in keeping with the dangerous character of its business.”

“In Rotramel v. Public Service Company, Okl., 546 P.2d 1015 (1976), we held that an electric company “transporting and selling electricity for profit, a known deadly and dangerous though useful product, owes a greater degree of care and precaution in its use than that of property of a less dangerous character,” and we further held that power companies are required to exercise the highest degree of care and to maintain in the best possible condition the best appliances known to science, to render its business safe, and to use a degree of care, caution and circumspection in keeping with the dangerous character of its business.”

In Rotramel, we further considered whether compliance by a power company with the National Electrical Safety Code, as required by order of the Corporation Commission, exculpated an electric company from a charge that it was negligent in maintaining uninsulated high voltage lines close to a metal building where it knew or should have known that ladders would be used in the maintenance of the building which might come in contact with the uninsulated wires. We there held that compliance with the National Electrical Safety Code is not conclusive evidence of the electric company’s exercise of due care, “but only one factor to be considered.” Rotramel, is distinguishable from the case at bar, in that compliance with the code was sought as a shield, whereas, here, noncompliance is sought as a sword.

In the case of Langazo v. San Joaquin Light & Power Corporation, 32 Cal.App.2d 678, 90 P.2d 825 (1939), a duty to remove an abandoned telephone line which became charged with electricity was determined to be a violation of an order of the railroad commission, the purpose of which order was to remove a hazard to “life or property.” There the Court said (832):

“The cases which support this rule (violation of a statutory duty with respect to the condition of the property) are based upon the fundamental concept that the question of the status of the party injured cannot be raised, for the reason that the law is a police regulation designed to protect the public.” (Citations omitted).

* * * * * *

“The important thing is that there are statutes such as we have mentioned ... and these statutes usually bear the aspect of police regulations for the protection of the public relative to matters with which the public contact is commonly through individuals as to which the individuals are entitled to assume that the law has been observed. (Citations omitted). The benefits to be derived from its performance inure to the public through the added safety assured to individual person and property, and can effect the public in no other way. That the failure to observe the requirements of such a statute will, if the proximate cause of injury, support an action even by a trespasser is sustained by an abundance of authority.” (Citations omitted).

The distinction between the trespasser-status-liability determination on the part of an ordinary landowner as against the negligence claim of a trespasser on the one hand, and the trespasser-status-liability determination on the part of the owner and operator of high voltage electric lines who has violated a police power safety statute or regulation as against the negligence claim of a trespasser on the other hand is illustrated in the case of Norris v. City of Miami, Fla. App., 367 So.2d 1038 (1979). There an independent contractor (plaintiff-appellant) was engaged by a third party to trim trees located on property owned by the City of Miami. The plaintiff had failed to obtain a permit from the city and occupied the status of a trespasser as to the city. The plaintiff sustained an electrical shock when a severed tree limb came into contact with the electric company’s overhead power lines which were alleged to be negligently camouflaged by foliage and tree growth.

The Florida Court said (1040): “Thus, by appellant’s failure to receive permission of the landowner (City of Miami) to enter upon the property and cut the trees (via a permit) and his awareness of the fact that the trees were not located on the Cohn property, appellant was clearly a trespasser as to the City of Miami. ... As to the precarious status of the trespasser-appellant, the City owed no greater duty than to avoid wilful and wanton conduct toward him and, upon discovery of his presence, to warn him of known dangers not open to ordinary observation.” (Citation omitted).

However, as to the liability of the power company, the Court took a different view (1042): “Thus, it would appear sub judice, that as long as Florida Power & Light could have reasonably anticipated appellant’s presence on the City of Miami right-of-way, its duty to appellant-trespasser was as great a duty as must be exercised by an electric company to the general public. (Citation omitted). While this high degree of care expressed in [Florida Power & Light Co. v.] Bridgeman, [133 Fla. 195, 182 So. 911 (1938)] does not raise an electric company to the level of an insurer against all possible accidents (Citation omitted), it does demand that an electric company guard against occurrences which can reasonably be anticipated by the utmost foresight.”

Thus, where a violation of a police power regulation has been invoked by the electric company’s failure to comply therewith, the traditional rules as to a claimant occupying a trespasser status do not apply, and the issue becomes one of whether the violation of the police power statute or regulation was the proximate cause of the claimant’s injuries.

While foreseeability of a trespass was not involved, the foreseeability of an intervening cause was present and considered in City of Altus v. Wise, 193 Okl. 288, 143 P.2d 128 (1943). We said (131): “Companies engaged in the business of conducting electricity over high voltage wires are bound to exercise much greater precautions in its use than if the property were of a less dangerous character. (Citations omitted). They, are, therefore, bound to anticipate more remote possibilities of danger.”

In Keel v. Titan Construction Corporation, Okl., 639 P.2d 1228 (1982), this Court said (1232):

“In Lisle v. Anderson [61 Okl. 68, 159 P. 278 (1916)], we held: ‘Whenever the circumstances attending a situation are such that an ordinarily prudent person could reasonably apprehand that, as the natural and probably consequences of his act, another person ... will be in danger of receiving an injury, a duty to exercise ordinary care to prevent such injury arises ... ’ (Footnote citations are omitted).

“The requirement that before one may become liable for his tortious injury to another, the injury complained of must have been reasonably foreseeable to the tortfeasor is firmly ensconced in the Oklahoma law. (Footnote citations are omitted). And, as we said in Atherton v. Devine (Okl., 602 P.2d 634 (1979), supra: ‘Causation traditionally lies within the realm of fact, not law. In an action for injuries caused by the defendant’s negligence, it is a jury question whether the injurious consequences resulting from the negligence could have reasonably been foreseen or anticipated. ... Fore-seeableness becomes a question of law for the court only when one reasonable conclusion can be drawn from the facts.’ ”

AFFIRMED.

DOOLIN, V.C.J., and HODGES, HARGRAVE and WILSON, JJ., concur. KAUGER, J., concurs in judgment. SIMMS, C.J., concurs in part, dissents in part. OPALA, J., dissents. SUMMERS, J., disqualified.