Goodell v. ITT-Federal Support Services, Inc.

Stafford, J.

(dissenting in part)—I agree with the majority insofar as it holds (1) that RCW 19.29 is not limited in application to those entities which merely distribute electric power; and (2) that the trial court did not abuse its discretion in granting petitioner's motion in limine. However, I do not agree that the legislature intended RCW 19.29.010 (Rule 14) to apply to mobile welding machines of the kind here involved. Rather, Rule 14 was intended to apply to energized wires or appliances installed inside respondent's facility. This welding unit was not installed, but was detachable, mobile, and could be used elsewhere. Consequently, I would affirm the Court of Appeals on this issue albeit for different reasons.

Generally, the violation of an applicable statute is negligence per se. Bayne v. Todd Shipyards Co., 88 Wn.2d 917, 568 P.2d 771 (1977). As we stated in Kness v. Truck Trailer Equip. Co., 81 Wn.2d 251, 257, 501 P.2d 285 (1972), citing Restatement (Second) of Torts § 286 (1965):

The court may adopt as the standard of conduct of a reasonable man the requirements of a legislative *495enactment . . . whose purpose is found to be exclusively or in part
(d) to protect that interest against the particular hazard from which the harm results.

(Italics mine.) See also Bayne v. Todd Shipyards Co., supra at 929. Before one may apply the standard of conduct expressed in Rule 14 to this case, one must find a legislative intent that it apply. Unlike the majority, however, I cannot find a legislative intent to protect one against the particular hazard from which the harm here resulted.

Words used in a statute must be given their usual and ordinary meaning unless a contrary intent appears. Strenge v. Clarke, 89 Wn.2d 23, 28, 569 P.2d 60 (1977). The ordinary meaning of the word "install" is "to set up for use or service." Webster's Third New Int'l Dictionary 1171 (1971). See also State v. Jones, 242 N.C. 563, 89 S.E.2d 129 (1955); Louisville v. Jefferson County Fiscal Ct., 307 Ky. 818, 212 S.W.2d 107 (1948); Smith v. Kappas, 218 N.C. 758, 12 S.E.2d 693 (1941). Further, both "install" and "installation" when applied to machinery also have a similar technical meaning. Webster's New Twentieth Century Dictionary (2d ed. 1970) gives these definitions: "Install . . . to fix in position for use; as, we installed new light fixtures." "Installation ... a complete mechanical apparatus fixed in position for use; as a heating installation." See also Long v. Ulmer Mach. Co., 77 Cal. App. 66, 246 P. 113 (1926); Paldanius v. Strauss, 100 Ore. 497, 198 P. 253 (1921). Thus, neither the ordinary nor the technical definition of "install" lends itself to the majority's interpretation of Rule 14 which effectively defines "install" to include temporary or mobile equipment. The fact that Rule 14 was intended to apply only to appliances actually installed or fixed permanently in place is further evidenced by the more expansive words used by the legislature in the balance of RCW 19.29.010. For example, Rules 1, 2, 3, 4, 6 and 11 require specific safety features for wires or cables which are run, placed, erected, maintained, or used. Rule 5 requires *496specific safety features for transformers which are placed, erected, maintained, or used. Rule 7 deals with transformer secondaries which are strung or erected. All of the foregoing rules connote either temporary or permanent electrical equipment. In contrast, Rule 14 applies solely to permanent installations and has no application to temporary electrical equipment, much less that which is mobile. Had the legislature intended Rule 14 to apply to the mere use of mobile equipment, it could easily have so stated as it did in Rules 1-6 and Rule 11.

It is a basic principle of statutory construction that no portion of a statute should be treated as superfluous, void or insignificant. Hayes v. Yount, 87 Wn.2d 280, 552 P.2d 1038 (1976). Yet, the majority opinion effectively renders the word "installed" superfluous by applying Rule 14 to a welding unit that admittedly is both temporary and mobile.

1 also cannot ignore the legislature's amendment of Rule 14. Formerly Rule 14 read:

All wires or appliances carrying a current of less than seventy-five hundred (7,500) volts . . . All wires or appliances carrying a current of over seventy-five hundred (7,500) volts . . .

(Italics mine.) Laws of 1913, ch. 130, § 1. In the place of "carrying" the legislature inserted "installed." One purpose of the amendment may have been to clarify that the rule applies solely to wires or appliances inside a building or vault. Wray v. Benton County PUD, 9 Wn. App. 456, 513 P.2d 99 (1973). See also Vannoy v. Pacific Power & Light Co., 59 Wn.2d 623, 369 P.2d 848 (1962). But, I cannot overlook the fact that the legislature also deleted the word "carrying" and replaced it with the word "installed." Unlike the majority, I must assume there was a purpose in making that change. Graffell v. Honeysuckle, 30 Wn.2d 390, 191 P.2d 858 (1948). I am convinced the legislature amended Rule 14 for the additional purpose of excluding mobile electrical units from its coverage.

The majority takes the position that Rule 14 is particularly applicable here because:

*497the welder was not simply a device which was plugged into a wall plug and which used available electricity. If that were the case, it would be a different matter. A simple appliance which merely plugs in and consumes electricity is not what the statute is about . . . One can hardly equate the plugging in of a toaster with the potential of the plaintiff becoming the final link of the electrical circuit within this welding unit.
. . . The shunt was energized, it was installed as an integral part of the welding device . . .

(Italics mine.) I agree that a "plugged in toaster" is not covered by the rule. Yet, this welding unit is the functional equivalent of a highly energized toaster which is "plugged into" an electrical power source to which the rule likewise has no application. The majority also misreads the statute when it concludes that "installation" as an integral part of the welding device satisfies the statute. It does not. The statute applies only if the device is actually installed inside a building or vault. Even were I to interpret the statute to apply to temporary mobile electrical equipment, I cannot agree that "installation" as an integral part of the welding unit satisfies the statutory requirement of installation inside a building or vault.

The legal principle that violation of a statute may be negligence per se has no application to this mobile unit which was not installed inside respondent's building. There being no indication of a legislative intent that Rule 14 applies, I would affirm both the trial court and the Court of Appeals on this issue.