No. 8 5 - 2 5 1
IN THE SUPREME COURT OF THE STATE OF MONTANA
1988
TERRY HAWTHORNE MARTEL,
Plaintiff and Appellant,
-vs-
MONTANA POWER COMPANY,
Defendant and Respondent,
APPEAL FROM: District Court of the Fifth Judicial District,
In and for the County of ~efferson,
The Honorable Frank Davis, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
R. Keith Strong argued; Church, Harris, Johnson &
Williams, Great Falls, Montana
For Respondent :
Lon T. Holden argued and Curtis G. Thompson argued,
Great Falls, Montana
For Amicus Curiae:
Eric Thueson, (For Rowan Ogden), Helena, Montana
Submitted : January 19, 1988
Decided: March 10, 1988
Filed:
MAR 1 0 1988
Mr. Justice William E. Hunt, Sr., delivered the Opinion of
the Court.
Plaintiff Martel appeals the jury's special verdict
finding the defendant Montana Power Company (MPC) 25%
negligent; himself 75% negligent; and setting his damages at
$290,000. He also appeals the order denying his motion for a
new trial.
We affirm in part, reverse in part and remand with
instructions.
The following issues were raised on appeal:
1. Did the trial court err when it declined to instruct
the jury that contributory negligence is not a defense to
willful and wanton misconduct?
2. Did the trial court destroy the protection of the
National Electrical Safety Code (NESC) when it:
a) gave only one instruction on the NESC and refused
several others on specific NESC provisions?
b) instructed the jury that comparative negligence was
a defense under these circumstances?
c) failed to instruct the jury that the NESC was only
a minimum standard?
3. Did the trial court err when it refused to tell the
jury the effect of comparative negligence on its verdict?
4. Did the trial court err when it allowed into
evidence an interpretation of a construction standard which
MPC did not have and had not used for design until the time
of trial, and which had been received from its counsel just
before trial?
5. Did the trial court err in allowing MPC to use the
expert testimony of an employee involved with the suit months
before trial, but identified only seven days before trial,
when another expert had been identified as the power
company's primary expert and when appellant declined to make
use of a continuance the trial court offered him?
6. Did the trial court err in granting MPC's motion to
dismiss appellant's claim charging MPC with misrepresentation
and bad faith under both the common law and the Unfair Trade
Practices Act for its method of investigating and adjusting
this accident?
On July 7, 1979, Terry Martel suffered permanent
injuries as a result of being electrocuted when some portion
of his body came within a few inches of an electric power
transmission line carrying 100,000 volts. Martel testified
that he had two beers with friends after they arrived at the
old Piedmont Substation south of Whitehall, Montana. Martel
was 19 at the time of the accident. The substation sits at
the end of a short road off a county roadway.
After one other person climbed the tower, Martel also
climbed it. A dispute in the facts exists as to whether
Martel reached out to the line but the evidence is clear he
did not touch the line. In any event, his proximity to the
line caused electricity from the line to arch to his body
causing serious injury.
The substation has a tower which supports the
transmission line. The tower is crossed with metal brackets
and sits on top of a concrete footing sunk in the ground. To
climb it one must take a step from the ground to the footing,
then to a bracket 17" from the concrete footing, then to
another bracket 2' 3/4" above, then to a bolt step 4' 6 1/4"
above that. Beyond that is a series of bolt steps leading to
the top of the tower. No barricades surrounded the tower. A
wooden sign was near the tower. The sign had been painted
over but the word "danger" was still visible.
The Milwaukee Road built the substation prior to 1920
and MPC acquired it in 1974. MPC employees drove by the
tower site at least once a month to examine the site. One
employee and the Whitehall town marshal Rand McLester offered
testimony that neither had ever seen children or any other
unauthorized people on the tower.
Issue 1. Did the trial court err when it refused an
instruction that contributory negligence is not a defense to
willful or wanton misconduct?
Near the end of the plaintiff's case-in-chief the trial
court ruled that plaintiff established a prima facie case of
willful or wanton misconduct on the part of defendant power
company. Although the court instructed the jury that they
could find that MPC had acted willfully or wantonly, the
court refused plaintiff's proposed instruction that
comparative negligence was not an issue if they found the
defendant had acted willfully or wantonly. The trial court
correctly refused this instruction.
We said in Derenberger v. Lutey (Mont. 1983) , 674 P. 2d
485, 487-88, 40 St.Rep. 902, 906, that comparative negligence
is inapplicable when the action is based on willful and
wanton misconduct. In that case, we made a distinction
between conduct that is willful and wanton and conduct that
is merely negligent. When the defendant's conduct is willful
and wanton, the plaintiff's own mere negligence could not be
used to offset his recovery. We now conclude that this
distinction is faulty and expressly overrule Derenberqer.
Prior to the enactment of comparative negligence, the
rule preventing comparison of willful and wanton conduct and
mere negligence served to ameliorate the harshness of the
defense of contributory negligence which would bar all
recovery to the plaintiff. Fortunately, we now operate under
a scheme of comparative negligence where there is no danger
of a plaintiff's slight negligence barring all recovery
against a willful and wanton or grossly negligent defendant.
See § 27-1-702, MCA as enacted in 1975 and amended in 1983.
The rationale for the rule in Derenberger no longer exists.
It is more appropriate, then, as Justice Gulbrandson
pointed out in his concurring and dissenting opinion in
Derenberger, to adopt the interpretation from the state where
our comparative negligence statute originated. The Wisconsin
Supreme Court ruled that negligence in all its forms, gross,
willful and wanton or ordinary, can be compared to and offset
by each other under its comparative negligence statute.
Bielski v. Schulze (Wis. 1962), 114 N.W.2d 105, 111-114. In
1975, Montana adopted the Wisconsin statute. We hold,
therefore, that all forms of conduct amounting to negligence
in any form including but not limited to ordinary negligence,
gross negligence, willful negligence, wanton misconduct,
reckless conduct, and heedless conduct, are to be compared
with any conduct that falls short of conduct intended to
cause injury or damage. The trial court is affirmed on this
issue.
Issue 2. Did the trial court destroy the protections of
the NESC when it:
a) gave only one instruction on the NESC and refused
several others on specific NESC provisions?
b) instructed the jury that comparative negligence was
a defense under these circumstances?
c) failed to instruct the jury that the NESC was only a
minimum standard?
Appellant Martel argues that failure to give the
comparative negligence instruction as well as failure to give
several other instructions regarding specific NESC provisions
resulted in destroying the protections provided by the NESC.
We agree with appellant's position that plaintiff's
instructions no. 14 and 15 should have been given and,
further, that the jury should have been instructed that the
NESC was only a minimum standard. However, we agree with the
trial court that the jury should have been instructed on
comparative negligence as a defense under these
circumstances.
2a.
Since 1917, the legislature has incorporated the NESC in
one form or another into the Montana statutes and requires
utilities in Montana to construct, install and maintain lines
and equipment so as to reduce hazards to life as far as
practicable. Section 69-4-201, MCA. A look at previous
versions of § 69-4-201 shows the legislature has also used
the terms "future construction" since 1917. Since then the
NESC has addressed the areas of electrical regulation
involved in this case. Utilities, including MPC have
understood it to be their duty to follow these standards.
MPC witnesses testified they understood that a violation of
these standards is contrary to Montana law.
Martel argues that NESC construction standards apply to
this case and are controlling. MPC did not build the
particular tower in question. However, its engineers
testified that when MPC buys a facility, or when it contracts
with someone else to build a facility for them, MPC has a
duty to inspect to see that the facility complies with the
NESC. Appellant's argument is correct.
Appellant claims that plaintiff's instructions no. 12,
13, 14 and 15 were wrongly denied and that the protections of
the NESC were thereby destroyed. Instructions no. 12 and 13
were the 1973 NESC version and differed slightly from
instructions no. 14 and 15, the 1977 NESC version.
Plaintiff's proposed instructions no. 14 and 15 stated
as follows:
No. 14. The Montana Power Company must comply with
the National Electrical Safety Code in its
construction. Portions of the National Electrical
Safety Code reads as follows:
"211. Installation and Maintenance
All electric supply and communication lines
and equipment supply and communication lines
and. equipment shall be installed and
maintained so as to reduce hazards to life as
far as is practical.
214. Inspection and Tests of Lines and Equipment
A. When In Service.
1. Initial Compliance with Rules
Lines and equipment shall comply with these
safety rules when placed in service.
2. Inspection
Lines and equipment shall be inspected from
time to time at such intervals as experience
has shown to be necessary.
3. Tests
When considered necessary, lines and equipment
shall be subjected to practical tests to
determine required maintenance.
4. Record of Defects
Any defects affecting compliance with this
code revealed by inspection or tests, if not
promptly corrected, shall be recorded; such
records shall be maintained until the defects
are corrected.
5. Remedying Defects
Lines and equipment known to be defective so
as to endanger life or property shall be
promptly repaired, disconnected, or isolated."
If you find that the Montana Power Company did
not install or maintain this tower in compliance
with the sections of the National Electrical Safety
Code quoted above, then you must find that the
Montana Power Company was negligent.
No. 15. The Montana Power Company must make its
construction projects comply with the National
Electrical Safety Code.
A portion of the National Electrical Safety
Code reads:
"280. Structures for Overhead Lines
A. Supporting Structures
1. Protection of Structures
b. Climbing
Readily climbable supporting
structures such as closely latticed
poles or towers, including those
attached to bridges, carrying open
supply conductors energized at more
than 303 volts, brhich are adjacent
to roads, regularly travelled
pedestrian thoroughfares, or places
where persons frequently gather
(such as schools or public
playgrounds) shall be equipped with
barriers to inhibit climbing by
unqualified persons or posted with
appropriate wa.rning signs.
2. Steps
Steps permanently installed on supporting
structures shall not be closer than 8
feet from the ground or other accessible
surface."
If you find that the Montana Power Company's
constructi.on did not meet the requirements of the
National Electrical Safety Code set out above, then
you must find tha.t the Montana Power Company was
negligent as a matter of law.
MPC1s engineers testified that these provisions were designed
to protect anyone around the towers regardless of age or
authorization.
MPC contends that proposed instructions no. 12 and 14
were correctly refused because they state that I1[T]he MPC
must comply with the National Electrical Safety Code in its
construction1' and such statements are not applicable since
MPC did not construct the tower. Also, respondent disputes
these instructions claiming the jury may find respondent
negligent if it violated certain NESC sections whereas the
instruction stated it must so find.
The manner in which the footing, braces and channel
irons were configured to provide access to the bolt ladder
that led to the top of the tower is a matter of construction
and design standards, as is the matter of installing barriers
around towers or signs. The standards of the NESC should not
be limited to a narrow meaning of the word "construction" but
should imply an obligation to comply with the standards in
the broader sense of "design" as well. Although MPC did not
initially construct the tower it must still bring its
"design" within the NESC standards. This duty may also
include elements of maintenance.
We held in Barmeyer v. Montana Power Co. (Mont. 1983),
657 P.2d 594, 40 St.Rep. 23, that through $ 69-4-201, MCA,
the legislature incorporated only the NESC construction
standards. Therefore violations of nonconstruction NESC
standards were merely evidence of negligence and not
negligence as a matter of law. 657 P.2d at 602-03. Upon
reflection, this seems an overly narrow interpretation of the
statute. One of the purposes of the NESC is to ensure the
safeness of electrical systems that have life-threatening
capabilities. If a utility can avoid complying with these
standards by purchasing constructed lines and towers instead
of constructing them itself, the NESC becomes ineffectual.
It is unlikely that the legislature intended such a result
when it incorporated the NESC into S 69-4-201, MCA. We have
recognized that a violation of statutes intended to protect
the public is negligence per se. Stepanek v. Kober Const.
(Mont. 1981), 625 P.2d 51, 55, 38 St.Rep. 385, 391. We
therefore overrule Barmeyer and hold that violations of
maintenance and design standards intended to protect the
public are also negligence per se. However, to be complete
the trial court should inform the jury that in this action a
violation of law is of no consequence unless it contributed
as a proximate cause to an injury found by the jury to have
been suffered by the plaintiff.
We hold that plaintiff's instructions no. 14 and 15
properly may be given upon retrial after a modification to
show that MPC must comply with the construction, maintenance
and design standards of the NESC. We further hold that
plaintiff's proposed instructions no. 12 and 13 were
correctly refused since they quoted the 1973 version of the
NESC and therefore were not applicable law at the time of the
accident in 1979.
Issue 2b is whether the protections of the NESC were
destroyed when the trial court allowed the jury to consider
the comparative negligence of the plaintiff even after a
prima facie case of willful and wanton conduct on the part of
the defendant had been demonstrated by the plaintiff. This
issue is resolved by the holding in issue 1 and need not be
addressed further.
Finally appel-lant contends that denial of plaintiff's
instruction no. 16 further destroyed NESC protections. The
instruction reads :
The National Electrical Safety Code is a minimum
standard only. You may find that the Montana Power
Company was negligent as defined in these
instructions even if you find that the Montana
Power Company fully complied with all the
provisions of the National Electrical Safety Code
in evidence in this case.
In keeping with our holding that a violation of these NESC
standards is negligence per se we further note that bare
compliance with a statute such as S 69-4-201, MCA, does not
necessarily establish due care. If the circumstances are
such that a danger exists beyond the minimum which this
statute was designed to meet, then the jury may be informed
that a defendant is negligent for not doing more. For this
reason plaintiff's proposed instruction no. 16 should not
have been refused by the court.
Issue 3. Was it error for the trial court to refuse to
tell the jury the effect of comparative ilegligence on the
verdict?
We hold that it was error. The applicable statute, S
27-1-702, MCA (1978), provides that a plaintiff may recover
damages for injury if the plaintiff's "negligence was not
greater than the negligence of the person against whom
recovery is sought, but any damages allowed shall be
diminished in the proportion to the amount of negligence
attributable to the person recovering." The purpose of this
statute is to remove the harsh treatment of contributory
negligence on the part of plaintiff under the old scheme that
prevented any recovery for any negligence of the plaintiff.
MPC argues that the scale may have gone too far the
other way, and juries informed of the legal effect of
comparative negligence are overly generous to the negligent
plaintiff. It argues that the jury's determination of
damages will reflect the jury's sympathies for the
plaintiff's injuries rather than reflect its computation of
actual damages sustained and offset by the plaintiff's own
negligence.
In opposition, Martel argues that juries, not informed
of the legal effect of their apportionment of negligence,
operate in the dark. This, he argues, makes it impossible to
tell whether the amount of damages awarded is based on the
jury's determination of actual damages or whether it is
infected with speculation about the effect of its
apportionment of negligence.
We have held that the jury can objectively consider the
facts before it. Owens v. Parker Drilling Co. (Mont. 1984),
676 P.2d 162, 166, 41 St.Rep. 66, 71. In fact, we have
refused to order a new trial based upon the reasons defendant
gives. In North v. Bunday (Mont. 1987), 735 P.2d 270, 277,
44 St.Rep. 627, 636, we expressly recognized the integrity of
the jury in determining negligence percentages when we
stated:
We cannot impugn the integrity of the jury that it
indulged in that kind of manipulation. The single
duty of the jury in this case was to determine the
applicable percentages of negligence, if such
negligence existed. We cannot order a new trial in
this case upon the mere speculation that if the
jury could foresee the precise effect of their
factual determination, even though not called on to
determine damages, their factual determination
would be different from what they decided.
We are persuaded by appellant's argument that the jury
speculated about the effect of its percentage determinations.
During deliberations the jury sent a note to the judge, "Do
the percentages in question #4 apply to monetary compensation
in question #5?" The judge answered, "Dear Folks: You must
answer each question separately by 8 or more of your number."
We think Montana juries can and should be trusted with
the information about the consequences of their verdict.
Other jurisdictions have considered this question and have
come to differing conclusions. An excellant review of the
holdings in those jurisdictions is set forth in the Idaho
case of Seppi v. Betty (Idaho 1978), 579 P.2d 683. After a
lengthy discussion, the Idaho Supreme Court concluded that it
is naive to believe that jurors do not speculate about the
effect of their answers. To end speculation, the Idaho
court said juries should be informed of the effect of their
answers. Seppi, 579 P.2d at 691. The Idaho court tempered
its position by giving the trial court the discretion not to
inform the jury in those cases where the issues are so
complex or uncertain that the jury would only be confused.
Seppi, 579 P.2d at 692.
We adopt the reasoning of the Idaho Supreme Court and
hold that under the circumstances of this case the jury
should have been informed of the effect of its verdict. Upon
the request of a party, the court must give this instruction
unless it finds the issue so complex as to confuse the jury.
Issue 4. Did the trial court err when it allowed into
evidence an interpretation of a construction standard which
MPC did not have and had not used for design until the time
of trial and had received from its counsel just before trial?
Since we are remanding the case we will discuss this
issue only for purposes of guidance upon remand. Much of the
trial focused on whether the tower was "readily climbable,"
or "closely latticed" as those terms appeared in the 1973 and
1977 NESC, S 280. The trial court allowed into evidence a
copy of a 1984 interpretation of those terms written by the
Institute of Electrics and Electronic Engineers in response
to a request by an entity having difficulty applying those
terms to a tower built in 1911. The interpretation was, as
yet, unpublished and undistributed and MPC1s counsel seemed
to be the only one in possession of the interpretation.
Appellant claims that this exhibit was totally
irrelevant under Rule 401, M.R.Evid. and if admitted, any
probative value would be outweighed by the danger of unfair
prejudice and confuse and mislead the jury under Rule 403,
We hold it was error to admit the 1984 280
interpretation into evidence as a construction standard which
b P did not have and had not used for design until the time
4C
of trial, and which had been received from its counsel just
before trial. At a new trial, the interpretation can be
admitted upon the laying of a proper foundation.
Issue 5. Did the trial court err in allowing MPC to use
the expert testimony of its employee Pat Rice who was
involved with the suit months before trial but was identified
only seven days hefore trial, when another expert had been
identified as the power company's primary expert and when
appellant had declined to make use of a continuance the trial
court had offered him?
This issue is moot and need not be discussed further.
Issue 6. Did the trial court err in granting MPC's
motion to dismiss Martel's claim charging MPC with
misrepresentation and bad faith under both the common law and
the Unfair Trade Practices Act?
The trial court dismissed Count I1 of appellant's second
amended complaint for failure to state a claim. Count I1
alleges that MPC, through its insurance adjuster, was liable
for negligent and fraudulent misrepresentation; breach of
defendant's common law duty to act in good faith and fair
dealing with appellant; and violation of the Unfair Trade
Practices Act because, as a company self-insured up to
$500,000 of its losses, its adjuster's actions were tortious,
malicious, oppressive and unjustified.
Appellant claims that the adjuster presented himself as
an investigator for the Public Service Commission (PSC) and
that he was a state official on official business. He claims
most of the information gained was not transmitted to the PSC
but rather retained in MPC's files. Furthermore, the
adjuster questioned appellant's parents at the site of the
accident and his friends and relatives as they sat outside
the emergency room. Appellant contends this amounts to a
tort in and of itself.
In addition, appellant argues that the trial court erred
first by not assuming the facts alleged in the complaint to
be true for purposes of a motion to dismiss. Rule 12(b) (6),
M.R.Civ.P. Secondly, the court essentially rendered summary
judgment for the defendant by assuming certain facts would be
proved. Appellant contends that this, along with not
informing the parties tha.t the court is treating the motion
as one for summary judgment, is error under Gebhardt v. D. A.
Davidson & Co. (1983), 203 Mont. 384, 389, 661 P.2d 855, 857.
Appellant further contends the substantive law is also
in his favor. He alleges the adjuster's activities were
performed in accordance with deliberate corporate policy and
performed by a skilled, experienced and trained agent and
appellant was harmed by these actions. The situation is also
aggravated because the same agent working for MPC allegedly
investigates and adjusts for MPC's excess insurance carrier.
The latter portion of Count I1 alleged MPC was liable
under S 33-18-201, MCA, because that section of the Unfair
Trade Practices Act provides a right of action to injured
third persons. Klaudt v. Flink (1983), 202 Mont. 247, 252,
658 P.2d 1065, 1067. In opposition, respondent argues MPC
was under a legal obligation to investigate the accident and
report to the PSC. Section 69-3-107(2), MCA. MPC claims
Count I1 did not allege the adjuster misrepresented his
employment nor did it contain allegation of any duty owed by
MPC which was breached and consists of unsupported conclusory
statements. They argue dismissal was correctly based on the
failure to state a claim.
This Court recently held in Ogden v. Montana Power Co.
(Mont. 1987), 747 P.2d 201, 44 St.Rep. 2068, that a
self-insured electric utility which is primarily in the
business of providing power to customers was not, at the time
of Martel's accident, regulated by the Unfair Trade Practices
Act, 5 33-18-101, et seq. MCA (1985). The Act only covered
those in the business of insurance. Therefore, the appellant
can state no claim against MPC based on this act. Nor may
appellant state a claim based on a common law duty to
investigate claims and to attempt in good faith to make
prompt and fair settlements where liability is reasonably
clear. Ogden, 747 P.2d at 205. The trial court
correctly dismissed Count I1 of appellant's second amended
complaint. /'
We affirm in part, reverse in
b
Justice
We Concur: -