dissenting:
I respectfully dissent.
The negligence claims at issue in this case are the result of a tragic accident that caused Charles Gast, a seventeen-year old, to suffer severe personal injuries. Gast was working around the yard of his father’s farmhouse. A number of sections of irrigation pipe were stored on the Gast farm under electric power lines. The Gast dogs chased a rabbit into one of the irrigation pipes. Gast attempted to dislodge and trap the rabbit. He raised the thirty-foot, three-inch aluminum irrigation pipe into a vertical position and came in contact with a power line.
The court of appeals reversed the judgment entered on a jury verdict for Gast and remanded for a new trial. Gast v. City of Fountain, 870 P.2d 506 (Colo.App.1993). A majority of this court has concluded that there was evidence to support the jury verdict. The majority’s remand directs that the court of appeals reinstate the jury verdict and review those issues raised on appeal that were not addressed because of the court of appeals reversal and remand to the district court for a new trial on the liability issue.
In the district court, Gast claimed that the City of Fountain (Fountain) was negligent and asserted that Fountain negligently installed, operated, inspected, and maintained the electric power lines. The primary claims were that Fountain was negligent in not elevating the power lines and in not carrying out its duty to warn of the dangers of storing aluminum irrigation pipe under high voltage power lines. In a motion in limine, Fountain sought an order prohibiting Gast from presenting any testimony by lay or expert witnesses that Fountain was under a duty to elevate the power lines or warn Gast of the dangers inherent in overhead electric power lines. The motion was denied. Fountain also moved for a directed verdict at the end of Gast’s ease in chief and at the close of all the evidence on the grounds that (1) Gast failed to establish that Fountain had any duty to Gast to provide protection against the type of accident that caused Gast’s injuries; and (2) Gast failed to establish that Fountain proximately caused Gast’s injuries.1 The district court denied Fountain’s motion.
The district court rejected Fountain’s proposed jury instruction limiting Fountain’s obligations to Gast.2 Fountain also objected to certain jury instructions on causation, foreseeability, and the appropriate standard of care. The instructions given to the jury quoted section 214(A) of the National Electrical Safety Code that provided that “electric supply lines shall be arranged so as to provide adequate clearance from the ground_” From this instruction, Gast argued that Fountain had a duty to elevate the power lines. While the jury was instructed that Fountain must exercise the highest possible degree of care, no specific instruction on duty to warn was given. The jury entered a general verdict finding Fountain 60% negligent and Gast 40% negligent. Fountain then filed a motion for judgment notwithstanding the verdict and a motion for a new trial asserting that the evidence presented failed to establish that Fountain owed Gast *485any legal duty or that Fountain proximately caused Gast’s injuries.
The issue of whether Fountain owed Gast a duty to elevate the power lines or a duty to warn was preserved for review by virtue of the following: (1) Fountain’s motion in li-mine; (2) Fountain’s motion for a directed verdict at the close of Gast’s case and at the close of all the evidence; (3) the district court’s failure to submit Fountain’s proposed instruction that it had neither a duty to warn nor a duty to elevate and Fountain’s objection to the instructions given; and (4) Fountain’s motion for judgment notwithstanding the verdict and its motion for a new trial.
The court of appeals concluded that the instructions given to the jury required a new trial because a duty to elevate could be inferred from the instructions and from Gast’s argument as to negligence. All members of the court of appeals concluded that the statutory duty to take reasonable measures to protect persons on the ground excluded raising power lines to a safe height. The court of appeals said:
We initially address the issue whether defendant had a duty to elevate the transmission lines in excess of the 20-foot elevation that existed on the date of the accident.
The jury was instructed that the applicable provisions of the 1961 National Electrical Safety Code “in effect as a law of the state of Colorado” required that:
All electric supply and communication lines and equipment shall be of suitable design and construction for the service and conditions under which they are to be operated....
To promote safety to the general public and to employees not authorized to approach conductors and other current-carrying parts of electric supply lines, such parts shall be arranged so as to provide adequate clearance from the ground or other space generally accessible, or shall be provided with guards so as to isolate them effectively from accidental contact by such persons.
The jury was farther instructed that a violation of the Code constituted negligence.
Two experts were called to testify by plaintiff and two experts were called to testify by defendants relative to the proper elevation for the lines under the Code. One of plaintiffs experts testified that because this was a rural agricultural area, defendant could expect loaded hay wagons as high as 20 feet with the result that the lines should have been elevated to 27.5 feet in order to be safe for this activity. This expert also testified that, because 30-foot spans of irrigation pipe were in use, the Code required that the lines should be elevated to a height of 37.5 feet.
Plaintiffs other expert opined that the elevation of the lines was not in conformance with the Code and that those lines transmitting electricity should have been at least 22 feet high. However, he was also of the view that raising the lines to that height in this ease would not have avoided this accident.
Both of defendant’s experts testified that the elevation of the lines did comply with the Code and that, therefore, there was no violation of any duty on defendant’s part under the circumstances. One of the experts stated that a 30-foot irrigation pipe when raised to its full vertical height would come in contact with “almost every line section in the United States across rural and agricultural lands.”
Given this state of the record, we are unable to conclude that the elevation issue should have been submitted to the jury. Notwithstanding the dispute among the experts as to the proper interpretation of the Code, we are unable to conclude that defendant had a legal duty to elevate the lines further because of the presence of the irrigation pipe.
Gast, 870 P.2d at 509. The court of appeals relied on Wilson v. Kansas Power & Light Co., 232 Kan. 506, 657 P.2d 546, 552 (1983), which states that:
[T]he mere usage of metal irrigation pipe in a rural cultivated field does not, in and of itself, mandate alteration of existing electrical transmission lines otherwise satisfactorily designed and maintained. To hold that usage of irrigation pipe alone *486creates a duty on the power company to raise, bury, relocate or coat its lines would place an unreasonable and unrealistic burden on power companies. This obviously could not be complied with and would, in essence, elevate the power company to the status of insurer.
Two members of the court of appeals panel concluded that Fountain had a legal duty to warn Gast of the dangers posed by the power lines. Gast, 870 P.2d at 511. The court of appeals ordered a new trial because of the likelihood that the jury’s verdict was founded upon the imposition of a duty on Fountain to elevate the power lines. Id. In dissent, Judge Rothenberg, who agreed that Fountain had no duty to elevate the power lines, stated that Fountain did not owe Gast a duty to warn of the danger posed by storing irrigation pipe under a transmission line. Id. at 512. Judge Rothenberg concluded that the record contained no evidence of negligence by Fountain to support the jury’s verdict for Gast and would have reversed the trial court with directions to enter judgment for Fountain. Id. at 513. I agree with Judge Roth-enberg’s dissent.
The court of appeals properly addressed whether Fountain owed Gast a duty to elevate or a duty to warn, and from the record I conclude that there was no evidence of negligence to support the jury’s verdict against Fountain and in favor of Gast. Accordingly, I would reverse and return this case to the court of appeals with directions for remand to the district court to enter judgment for Fountain.
I am authorized to say that Chief Justice VOLLACK and Justice KOURLIS join in this dissent.
. The majority states that Gast repeatedly denied Fountain's assertion that Gast's negligence claims were based on Fountain's duty to elevate the power lines and duty to warn because Gast alleged a general negligence claim. Maj. op. at 482. However, in response to Fountain's motion for a directed verdict, Gast stated, "They [Fountain] have a series of duties, there is testimony from qualified engineers, duly to know, duty to investigation [sic], duty to warn, hazard recognition code violations.” (Emphasis added.).
. One of Fountain's proposed jury instruction provided that "the mere presence of irrigation pipes on land in a rural area does not require a public utility to take any special actions to safeguard the public therefrom.” The instruction was refused.