No. 89-482
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
SPENCER SIZEMORE,
Plaintiff & Respondent,
THE MONTANA POWER COMPANY; and DOE I and
KEITH KESSEL, individual, and d/b/a
KESSEL CONSTRUCTION COMPANY; and KESSEL
CONSTRUCTION COMPANY; and DOE 11,
Defendants and Appellants.
APPEAL FROM: District Court of the Seventeenth Judicial District,
In and for the County of Blaine,
The Honorable Leonard Langen, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Brian Lilletvedt; Bosch, Kuhr, Dugdale, Martin &
Kaze; Havre, Montana
For Respondent:
Morton B. Goldstein; Goldstein Law Firm; Havre,
Montana
Amicus :
Ira Eakin; Lynaugh, Fitzgerald, Eiselein & Eakin;
Billings, Montana (Montana Trial Lawyers' Assn.)
Gary L. Graham; Garlington, Lohn & Robinson;
Missoula, Montana (Montana Defense Trial Lawyers,
Inc. )
Submitted: October 25, 1990
~ecided: December 13, 1990
Filed: (i
Justice R. C. McDonough delivered the Opinion of the Court.
Defendant, Montana Power Company (MPC), appeals from a jury
verdict of the Seventeenth Judicial District, Blaine County. The
jury awarded plaintiff, Spencer Sizemore (Sizemore), damages for
injuries sustained when an I-beam he was holding came into contact
with a high voltage power line owned by MPC. The jury found that
15% of Sizemore's injuries was attributable to his own negligence,
20% was attributable to his co-worker, Keith Kessel (Kessel), and
65% was attributable to the negligence of MPC. We affirm.
We rephrase the issues as follows:
1) Whether the District Court erred when it allowed Sizemore ' s
expert witness to testify concerning sections of the 1977 ~ational
Electric Safety Code (NESC);
2) Whether the District Court erred when it ruled as a matter
of law that the minimum height requirement set forth in the 1984
edition of the NESC did not apply to this case;
3) Whether the District Court erred when it refused M P C 1 s
proposed jury instructions 15, 15A and 15B;
4) Whether the negligence of Sizemore, and his co-worker
Kessel, was a superseding, intervening event which severed all
liability on the part of MPC;
5) Whether the evidence was insufficient to support the
jury's conclusion that MPC was responsible for sixty-five percent
of Sizemore1s injury.
The facts are simple. On September 8, 1984, Spencer Sizemore
gratuitously agreed to help Keith Kessel move some steel I-beams.
2
Kessel is the owner of Kessel Construction Company. The company
constructs concrete buildings, steel buildings and grain bins. It
operates out of the Kessel Construction Yard in Blaine County.
On the day of the accident Sizemore and Kessel went to the
Kessel Construction Yard, where the I-beams were located. They
planned to move the beams with a boom truck. Kessel and Sizemore
moved some wooden stubs to the area where they planned to move the
beams so that they could set the beams on the stubs. After setting
the stubs in place, Sizemore guided Kessel as he backed the boom
truck up to the beams and they hooked up the load.
As they hooked an I-beam to the boom truck, Sizemore and
Kessel discussed safety. Particularly, they talked about the need
to avoid powerlines that ran across and above the Kessel
Construction Yard.
After hooking a beam to the boom truck, Kessel began to back
up with the load. While backing up, the boom hit one of the
powerlines and Sizemore, who was holding on to the beam, received
an electrical shock. As a result of the shock, Sizemore received
burns to his left leg and right hand. He was hospitalized in Havre
and Missoula, where he had surgery to remove the ring finger on his
right hand and repair damage to his left leg.
On November 28, 1986, Sizemore filed a complaint against both
MPC and Keith Kessel, individually and d/b/a Kessel Construction
Company. In his complaint, Sizemore alleged that he suffered
permanent injuries as a result of the accident. He further alleged
that MPC negligently placed the power line in such a manner as to
grossly and recklessly endanger his life. He also alleged that
Kessel negligently operated the boom truck by backing it into the
powerline.
MPC answered Sizemorels complaint and generally denied his
allegations as to the cause of his injuries. MPC maintained that
Sizemorels injuries were caused by his own negligence. It
therefore filed a motion for summary judgment contending that
Sizemorels injuries were caused by the superseding and intervening
negligent acts of Kessel and Sizemore. This motion was denied.
At trial the jury found that 15% of Sizemorels injuries was
attributable to his own negligence, 20% of his injuries was
attributable to Kesselgs negligence and the remaining 65% was
attributable to the negligence of MPC. MPC filed its motion for
judgment notwithstanding the verdict or in the alternative for a
new trial. These motions were denied and MPC filed this appeal.
Issue I
MPC argues that the trial court erred when it allowed
Sizemorels expert witness, Robert Leo, to testify concerning
certain safety standards contained in the 1977 edition of the
National Electric Safety Code (NESC). These standards set forth
height requirements for powerlines. According to MPC, the 1984
edition of the NESC should have been used because Sizemore's
injury occurred in 1984. It argues that the trial court erred in
allowing Mr. Leo to refer to the older 1977 version during his
testimony.
We need not delve into the merits of MPC1s argument. As
Sizemore points out, MPC failed to object to this testimony.
Without a proper objection, MPC failed to preserve possible error
for purposes of appeal. Matter of B.L.O. (1984), 213 Mont. 164,
689 P.2d 1246. Accordingly, we decline to address this issue or
to find reversible error on the part of the District Court.
Issue I1
MPC argues that the NESC provides that a power company need
only elevate its power lines twenty feet above the ground in areas
such as the Kessel Construction Yard. It supports this contention
through reference to section 232 of the NESC, which indicates that
the minimum height requirement for powerlines similar to the one
involved in this case is 20 feet. Apparently, in cross examining
Mr. Leo, counsel for MPC attempted to insinuate that this 20 foot
standard was the height required by the NESC.
Upon objection, the trial court ruled that such questioning
misrepresented Mr. Leo's former testimony. The trial court pointed
out that this 20 foot figure was modified by a footnote which
explained that the figure was based upon vehicle operating heights
of less than 14 feet. Therefore, if vehicles, with maximum heights
of 14 feet operated under powerlines, the code mandated a minimum
height of 20 feet. If vehicles higher than 14 feet operated in the
area however, the lines must be at least six feet higher than the
maximum operating height of the vehicles. Based upon this
interpretation of the NESC, the trial court sustained Sizemore's
objection and forbid MPC1s counsel from asking what it considered
misleading questions.
We have reviewed section 232 of the NESC. Obviously, this
section was intended to require power companies to provide lines
at least six feet higher than the maximum height of vehicles
passing underneath. This conclusion comports with Mr. Leo's
testimony. We therefore hold that the trial courtlsruling on this
issue was a correct interpretation of both Mr. Leo's testimony and
the standards contained in the NESC.
Issue I11
Throughout trial and on appeal, MPC has argued that Sizemore's
and Kessel's negligence was an unforeseeable event. It maintains
that because this event was unforeseeable, it should be regarded
as a superseding, intervening event which cuts off all legal
liability on the part of MPC. See Kitchen Krafters v. Eastside
Bank of Montana (1990), 47 St.Rep. 602, 789 P.2d 567.
In order to emphasize this theory MPC submitted several
instructions to the District Court for presentation to the jury.
These instructions stated:
PROPOSED INSTRUCTION NO. 15
If you find the Defendant Keith Kessel Is conduct was
the operative conduct or superseding cause which
intervened as the proximate cause of Spencer Sizemore's
injuries, you must return your verdict for the Defendant
Montana Power Company.
PROPOSED INSTRUCTION NO. 15-A
If an act of negligence subsequent to the first act
of negligence was of such a character as not reasonably
to be expected to happen in the natural sequence of
events, such later act of negligence is the independent,
intervening cause and, therefore, the sole proximate
cause of the injury.
PROPOSED INSTRUCTION NO. 15-B
Where one has negligently caused a condition of
danger, he is not relieved of responsibility for damage
caused to another merely because the injury also involved
the later misconduct of someone else, if that conduct was
reasonably foreseeable.
The District Court rejected these instructions. It rejected
Instruction 15 because it felt that its language would confuse the
jury. The lower court stated its belief that the wording of the
instruction was inconsistent with Montana's comparative negligence
law.
MPC, on the other hand, argues the instruction is an accurate
statement of Montana law. It points out that its language is taken
directly out of a decision rendered by this Court in 1986. Dvorak
v. Matador Service Inc. (1986), 223 Mont. 98, 727 P.2d 1306. In
Dvorak, the plaintiff sued for injuries incurred when his employer
ordered him to enter a tank which had previously contained
poisonous chemicals. The tank car was owned by Matador Service
Inc. We held that the employer's grossly negligent conduct was
the '
I operative causew or superseding force of Dvorak's injuries.
Dvorak, 727 P.2d at 1310. Based upon this conclusion we held that
Dvorak could not establish proximate cause and therefore affirmed
the lower court's order of summary judgment.
Recently this Court has expanded and modified the law of
proximate cause. This trend began in the seminal case of Young v.
Flathead County (1988), 232 Mont. 274, 757 P.2d 772, and has
continued through our decisions in Kitchen Krafters Inc. v.
Eastsi.de Bank of Montana (1990), 47 St. Rep. 602, 789 P.2d 567; and
Thayer v. Hicks (1990), 47 St. Rep. 1082, 793 P.2d 784. In each
7
of these cases we have set forth the rule that proximate cause has
its basis in foreseeability. See Kitchen Krafters, 789 P.2d at
575.
The language from Dvorak, upon which Instruction 15 is based,
does not incorporate the doctrine of foreseeability and its
relationship to proximate cause as set forth in Young and its
progeny. Moreover, the language I1operativeconduct or superseding
causew indicates that Sizemore's accident may have had only one
cause. Such a connotation is inconsistent with the law concerning
comparative negligence. Given these facts, we hold that the
instruction is faulty and the District Court could properly refuse
its submission to the jury.
Similarly, Instruction 15-A was properly refused. This
instruction is based upon Halsey v. Uithof (1975), 166 Mont. 319,
532 P.2d 686. Halsev was decided before Montana adopted
comparative negligence. Before this law was adopted a plaintiff
could not recover if he was partially responsible for his injuries.
Many of the older cases decided under this scheme of liability
often denied such plaintiffs recovery on the grounds that their
negligence was the sole or proximate cause of their damages. Such
language is no longer applicable, however. Under comparative
negligence a plaintiff can recover even though the accident causing
his injuries is caused by more than one actor, including himself.
The language of Instruction 15-A does not adequately set forth this
concept. The instruction is also covered by other approved
instructions. We hold the instruction was properly denied.
The lower court also denied Instruction 15-B, obviously
holding that it was adequately covered by other instructions
already approved. Instruction 15-B deals with foreseeability. In
order to incorporate foreseeability into the instructions given to
the jury, the District Court utilized a modified version of the
standard proximate cause instruction, which was used at the time
trial. Instruction No. 13 submitted to the jury states:
The proximate cause of an injury is that cause which in
a natural and continuous sequence, unbroken by an
unforeseeable, new and independent cause, produces the
injury, and without which it would not have occurred.
(Added words underlined.)
This instruction when read in conjunction with others,
adequately sets forth the concept of foreseeability and its
application to proximate causation. The concept of foreseeability
was set forth to the jury through Instruction No. 13, instructions
on negligence, proximate cause, and the duty of the power company.
Also, it was discussed in closing arguments given by counsel. The
lower court's refusal to submit Instruction 15-B to the jury does
not constitute reversible error. In light of instructions given
regarding negligence and comparative negligence, it was redundant.
Furthermore, the instruction is confusing, especially by the use
of the word llinvolvedll the word llconduct.ll
and
However, as an aside, we note that this instruction (15-B) has
merit in the use of the word "reasonablyt1
(the lack of which is not
reversible error) as an adverb before the word Ilfore~eeable.~~
This
addition would help explain the concepts of ordinarily prudent
person and natural and probable consequences in setting forth the
issue of foreseeability in an instruction applicable to the
appropriate case. These concepts were included in an instruction
recently set forth in Kitchen Krafters v. Eastside Bank of Montana
(1990), 47 St.Rep. 602, 689 P.2d 567.
Issue IV
MPC maintains that the District Court erred when it denied
MPCnsmotion for summary judgment, motion for directed verdict and
motion for judgment notwithstanding the verdict. It bases this
argument on its belief that Kesselnsand Sizemorensnegligence was
unforeseeable, and that therefore Sizemore cannot establish
proximate cause. In support of its contentions, MPC cites a number
of cases decided by this Court.
Most of these cases arose before the legislature passed
Montanans comparative negligence statute. See e.g. Halsey v.
Uithof (1975), 166 Mont. 319, 532 P.2d 686; Sprankle v. DeCock
(1974), 165 Mont. 274, 530 P.2d 457; Turley v. Montana Power
Company (1975), 167 Mont. 39, 534 P.2d 1254. Many of these
decisions contain language concerning causation which, although
relevant in a contributory negligence context, is no longer
applicable under our comparative negligence scheme. For this
reason, MPCns reliance upon these cases is misplaced.
However, MPC also relies upon Dvorak v. Matador Services Inc.
(1986), 223 Mont. 98, 727 P.2d 1306, which arose after the
comparative negligence statute was enacted. Admittedly, this case
lends some support to MPC1s arguments. Since Dvorak was decided,
however, we have issued a number of opinions which render much of
its language obsolete. As stated earlier, this Court has sought
in recent decisions, to clarify the doctrine of proximate cause.
Therefore, we rely upon these decisions in formulating the holding
in the case now before us.
The doctrine of proximate cause has been developed in an
effort to prevent unlimited liability. As observed in a recent
case 'Ithe consequences of a wrongful act can extend in time for
years--perhaps [even] beyond the defendant's lifetime." Kitchen
Krafters Inc v. Eastside Bank of Montana (1990), 47 St.Rep. 602,
789 P.2d 567. In recognition of this fact, the courts have sought
to devise a means to cut off a defendant's liability when
principles of equity and common sense demand such a result. By far
the most common method of achieving this end is through resort to
the foreseeability analysis.
This method of analysis requires a trier of fact to determine
whether the consequences of a defendant's actions were reasonably
foreseeable. If a plaintiff's damages were reasonably foreseeable
to a man of ordinary prudence, liability will usually follow.
However by the same token the law refuses to hold a defendant
responsible for consequences which, although possible are not
reasonably foreseeable, or are generally regarded as freakish,
bizarre or unpredictable. Prosser and Keeton on Torts, 5th Edition
5 43 (1984).
Foreseeability can be determined in one of two ways. Some
courts analyze the issue under the element of duty. These courts
take the view that the scope of a defendant's duty is determined
by the foreseeability of any harm which may arise as a result of
his negligent conduct. See e.g. Palsgraf v. Long Island Railroad
Co. (New York 1928), 162 N.E. 99, 100. Other courts have analyzed
foreseeability under the issue of proximate cause. In doing so,
they have taken the view that all persons owe a duty to the world
at large to act reasonably in order to prevent injury to their
fellow man. Palssraf, 162 N.E. at 104 (Andrews dissenting) . If
this duty is breached, it then becomes necessary to determine
whether the consequences of the breach were reasonably foreseeable
to the defendant. If the consequences were reasonably foreseeable,
proximate cause is established and liability will follow.
In Kitchen Krafters, Inc. v. Eastside Bank of Montana (1990),
47 St.Rep. 602, 789 P.2d 567, this Court analyzed foreseeability
under the doctrine of proximate cause. In the present case, MPC
maintains that Sizemore1s injuries were unforeseeable because his
negligence combined with Kessel's was a superseding, intervening
event. Therefore, we analyze the facts now before us under this
doctrine and apply them to the law established in Kitchen Krafters.
As stated earlier, MPC argues that the events surrounding
Sizemore's accident were unforeseeable. They maintain that it was
impossible to foresee that Kessel and Sizemore would be so
completely inattentive and negligent so as to run the boom truck
into the overhead powerline. They further argue that they had no
way of knowing that the truck would be operated in the vicinity of
the powerline. Based upon these contentions, MPC maintains that
Kessells and Sizemore1s acts were unforeseeable and therefore
proximate cause cannot be established. Without proximate cause MPC
cannot be held liable for any alleged negligence associated with
the height of the powerline.
Simply stated, the issue raised by MPC is whether the
antecedent acts of negligence committed by Kessel and Sizemore were
superseding, intervening events which cut off legal responsibility
on the part of MPC. By definition, a superseding, intervening
event is an unforeseeable event that occurs after the defendant's
original act of negligence. Its presence will generally serve to
cut off liability on the part of the defendant. Kitchen Krafters,
789 P.2d at 576.
It is true that sometimes an antecedent act by a third person
or by the plaintiff is unforeseeable. For example, numerous courts
have held that the criminal or intentional actions of a third
person may not be foreseeable. Cole v. German Savings and Loan
Society (8th Cir. 1903), 124 F. 113. Similarly, a grossly
negligent act on the part of a plaintiff may properly be considered
unforeseeable.
The case now before us, however, presents neither of these
fact scenarios. Rather, the case requires us to determine whether
the circumstances surrounding Sizemore's accident was a reasonably
foreseeable consequence of MPC1s negligent placement of its
powerline.
We begin with the premise that '!the standard of reasonable
conduct may require the defendant to protect the plaintiff against
'that occasional negligence which is one of the ordinary incidents
of human life, and therefore to be anticipated1I1 Prosser and
Keeton on Torts, 5th Edition 5 44 (1984). Based upon this rule,
it is apparent that at times a power company has a duty to maintain
its lines in such a manner as to prevent the type of accident that
occurred in this case.
After a careful review of the facts, we conclude that Kessel ' s
and Sizemorels actions were not extraordinarily negligent. On the
contrary, the boom truck's contact with the line could be a normal
consequence of MPC's negligent act. It was therefore reasonably
foreseeable. This conclusion is supported by testimony presented
by expert witnesses at trial. Sizemore's expert testified that 85%
of all electrical injuries are caused by human frailty or mistake.
MPC ' s witness acknowledged that the majority of such accidents are
due to human mistakes.
Given these facts, we hold that the jury could properly
conclude that the intervening negligence of Kessel and Sizemore
was reasonably foreseeable and proximate cause was established.
Therefore, the lower court did not err in refusing to grant MPC's
motions for summary judgment, directed verdict or judgment
notwithstanding the verdict.
Issue V
Finally, MPC argues that there was insufficient evidence to
support the jury's conclusion that it was responsible for sixty-
five percent of Sizemore's injury. In support of this contention
MPC recites evidence which established both Kessellsand Sizemore's
knowledge of the location and danger of the powerlines. They
maintain that their negligence if any, was in failing to raise or
relocate the powerlines. This act constituted mere passive
negligence, as opposed to the active negligence of Kessel and
Sizemore. Given these facts, the evidence does not support the
juryts apportionment of damages.
We disagree. This Court Is function in reviewing jury verdicts
is necessarily very limited. We must review the evidence in a
light most favorable to the prevailing party to determine whether
substantial evidence supports the jury's verdict. Anaconda Co. v.
Whittaker (1980), 188 Mont. 66, 610 P.2d 1177. This Court cannot
reweigh the evidence or disturb the findings of a jury unless that
evidence is so inherently impossible or improbable as not to be
entitled to belief. Reynolds v. Trbovich Inc. (1949) 123 Mont .
,
224, 210 P.2d 634.
The evidence presented at trial established that MPC knew that
construction activity took place at the Kessel Yard. Apparently,
MPC employees had been at the yard approximately 100 times over the
years preceding the accident. Evidence was also introduced which
established that a similar incident, although with no injuries,
occurred a few months prior to Sizemoretsaccident. The evidence
is conflicting on whether MPC was notified of the incident.
However, the incident involved contact with a powerline that was
connected to the same power pole that connected the powerlines
involved in the Sizemore accident. Finally, the record shows that
MPC had been at the construction yard and had buried cables earlier
in 1984, several months before the accident.
These facts rise to the level of substantial evidence needed
to support the jury's apportionment of damages. As stated earlier,
this Court is precluded from reweighing the evidence. Accordingly,
the jury's verdict is affirmed.
We Concur: H
,pVT-
Chief Justice
Justices '.
--
Justice Fred J. Weber dissents as follows:
My dissent focuses on Issue I11 in which the majority
concludes that it was not error to refuse any of defendant's
proposed Instructions 15, 15-A and 15-B. The majority concludes
that the theories on the part of the defendant are adequately set
forth in Instruction No. 13 which is set forth as follows:
The proximate cause of an injury is that cause which in
a natural and continuous sequence, unbroken by an
unforeseeable, new and independent cause, produces the
injury, and without which it would not have occurred.
(Added words underlined.)
The majority concludes that Instruction No. 13 adequately sets
forth the concept of foreseeability and its application to
proximate causation. I suggest that the analysis of Instruction
No. 13 is not consistent with Kitchen Krafters Inc. v. Eastside
Bank of Montana (Mont. 1990), 789 P.2d 567, 47 St.Rep. 602.
Instruction No. 13 speaks of "Thetf
proximate cause in a case where
there are three different causes to be considered. The instruction
essentially uses the Ifbut fortfapproach as it states that the
proximate cause is that "without which the injury would not have
occurred." As pointed out in Kitchen Krafters, 789 P.2d at 574,
47 St. Rep. at 610, causation in fact is determined by the Ifbut
test where applicable. However, if two causes concur to bring
fortf
about an event then the tfsubstantialfactorfttest is used. Under
Kitchen Krafters, it appears that Instruction No. 13 improperly
focuses on the negligence of the defendant Montana Power Company
without reference to any concurring negligence.
The defendant's problem with Instruction No. 13 is that it
contends there is a failure to set forth its theories on
foreseeability. The general rule is stated in Kitchen Krafters,
789 P.2d at 575, 47 St.Rep. at 611, as follows:
Proximate cause is normally analyzed in terms of
foreseeability. Simply stated, one is only liable for
consequences which are considered to be reasonably
foreseeable. Prosser and Keeton at 5 43. If the
consequences of one's wrongful act are not reasonably
foreseeable, then it follows that it was not proximately
caused by that act. Using this analysis, one must look
forward through the chain of causation in order to
determine whether the events which occurred were
foreseeable. If they were, the element of proximate
cause is satisfied and liability will attach.
In analyzing the instructions in Kitchen Krafters, the Court
concluded that the instructions were inadequate and suggested that
on remand a proper instruction on proximate cause with regard to
foreseeability would state:
In order for the defendant's negligence to be the
proximate cause of the plaintiff Is injury, it must appear
fromthe facts and circumstances surrounding the accident
that the defendant as an ordinarily prudent person, could
have foreseen that the plaintiff's injury would be the
natural and probable consequence of the wrongful act.
The proposed instruction in Kitchen Krafters would have been much
more helpful in the present case because it focuses on the aspect
that the defendant as an ordinarily prudent person could have
foreseen that the plaintiff's injury would have been the natural
and probable consequence of the wrongful act. Instruction No. 13
as given is much less helpful.
That is particularly true in the present case where we have
a passive condition of danger created by the defendant Montana
Power Company, which is followed in time by subsequent acts of
negligence on the part of both Kessell and the plaintiff. This
raises the issue of superseding, intervening causes. The
instruction is totally inadequate in articulating the concept of
superseding, intervening cause. Instruction No. 15-A as proposed
by the defendant properly emphasized that if an act of negligence,
such as that of the plaintiff or Kessell, subsequent to the first
act of negligence was of such a character as not reasonably to be
expected to happen in the natural sequence of events, then that
later act is an independent, intervening cause. I believe that
instruction to be an accurate statement of the law which cannot be
derived from other instructions. It appears to me to be comparable
to the instruction suggested in the majority opinion in Kitchen
Krafters, which required the jury to determine if the defendant as
an ordinarily prudent person could have foreseen that plaintiff's
injury would be the natural and probable consequence of the
defendant's negligence. To restate this in accordance with the
factual determination which should have been required of the jury
in the present case, the jury should have been instructed in such
a manner as to require it to focus on whether or not the Montana
Power Company, as an ordinarily prudent person, could have
reasonably foreseen that Kesselllsbacking into the power line and
the plaintiff's injury would be the natural and probable
consequence of its failure to raise the power line above 20 feet
in height.
A proper instruction on this aspect was also defined by this
Court in Jacobson v. State (1989), 769 P.2d 694, 698, 46 St.Rep.
207, 212, where this Court approved the following instruction:
An intervening cause will relieve a Defendant of
liability for negligent acts where the cause is one which
the Defendant could not reasonably anticipate under the
circumstances.
I conclude that there has been a failure to properly instruct
the jury on the defendant's theory of the case and I would
therefore reverse and remand. Ic-c?