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M. Wassilie v. AK Village Electric Cooperative (8/9/91), 816 P 2d 158
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Notice: This is subject to formal
correction before publication in the Pacific
Reporter. Readers are requested to bring
typographical or other formal errors to the
attention of the Clerk of the Appellate
Courts, 303 K Street, Anchorage, Alaska
99501, in order that corrections may be made
prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
MICHAEL WASSILIE, )
) Supreme Court File No. S-3932
) Superior Court No.
Appellant, ) 4BE-86-61 Civil
)
v. ) O P I N I O N
)
ALASKA VILLAGE ELECTRIC )
COOPERATIVE, INC., ) [No. 3735 - August 9, 1991]
)
Appellee. )
______________________________)
Appeal from the Superior Court of the
State of Alaska, Fourth Judicial District,
Bethel, Richard D. Savell, Judge.
Appearances: Jeffrey M. Feldman,
Gilmore & Feldman, Anchorage, and Myron E.
Angstman, Law Offices of Myron E. Angstman,
Bethel, for Appellant. Burton C. Biss, Biss
and Holmes, Wasilla, for Appellee.
Before: Rabinowitz, Chief Justice,
Matthews, Compton and Moore, Justices.
[Burke, Justice, not participating]
MOORE, Justice.
Michael Wassilie appeals a judgment notwithstanding the
verdict in a negligence action brought against Alaska Village
Electric Cooperative, Inc. (AVEC). Wassilie received injuries
from a severe electrical shock incurred when his citizens' band
(CB) antenna toppled near AVEC's newly installed overhead
electrical transmission wire system in the village of Eek. The
trial court issued a partial summary judgment, finding as a
matter of law that Wassilie had been comparatively negligent for
failing to ground his CB radio and CB antenna; this decision was
not appealed. At trial, the jury found in favor of Wassilie in a
special verdict but allocated 40% of the negligence to Wassilie
and 60% to AVEC.
AVEC moved for judgment notwithstanding the verdict, or
alternatively, a new trial, or alternatively, remittitur. The
superior court granted judgment n.o.v., ruling that the
possibility that Wassilie's CB antenna would fall near the
overhead lines was unforeseeable and therefore, AVEC did not have
a duty to specifically warn Wassilie of the possibility that
electricity from the lines could be conducted by his antenna and
furthermore, even if such a duty existed, Wassilie failed to
demonstrate that additional warnings would have changed his
behavior. The court did not decide the motion for a new trial or
remittitur. Although there is considerable evidence to the
contrary, we are nonetheless persuaded that the jury could
reasonably have concluded that the overhead lines created a risk
of foreseeable harm to Wassilie. We therefore reverse the grant
of judgment n.o.v. and remand for consideration of the motions
for a new trial and remittitur.1
I. BACKGROUND
At the request of the Eek village council, AVEC
installed an overhead electrical power system in Eek.
Previously, the village had been served by a ground-level system
of insulated wires enclosed in wooden utiladors. AVEC began
construction of the overhead system in November 1984.
Construction was completed in late March or early April 1985, and
the system energized some three to four months later.
Michael Wassilie's CB antenna was mounted on a forty
foot wooden mast which was located about eighteen feet from
AVEC's power lines. Contrary to explicit directions provided
with the antenna and CB unit, neither the antenna nor the CB unit
was grounded. The antenna was originally in an upright position,
but sometime between February 1984 and the time construction
began in November 1984, it blew over and was leaned at a forty-
five degree angle against Wassilie's house.
According to Wassilie, the antenna was righted to a
vertical position during the period between completion of
construction and the energizing of the system. AVEC disputed the
timing, contending that the antenna was placed in a vertical
position after the system was energized.2 The parties also
disagreed as to whether the antenna was relocated when it was
placed upright. Wassilie maintains that the antenna was merely
righted and its base not moved.
On October 9, 1985, Eek experienced a storm with winds
estimated at fifty miles per hour. Unbeknownst to Wassilie, his
CB antenna blew over from its vertical position and landed
dangerously close to AVEC's overhead transmission lines. The
proximity of the antenna to the wires permitted electricity to
arc to the antenna through which it was conducted to the CB unit.
When Wassilie attempted to pick up the CB, he received a severe
shock and was knocked to the floor unconscious. His daughter ran
to their neighbor Charles Allen's home for assistance. Allen
came to Wassilie's home and was also mildly shocked when he went
to pick up the CB unit from the floor where Wassilie had dropped
it. Allen then went outside the home and saw the antenna leaning
toward the wires with electricity arcing between it and the
wires. Allen contacted the village power plant operator who shut
down the power system; Allen then moved the antenna away from the
wires and secured it to Wassilie's house with a rope.
Wassilie was airlifted to a hospital in Bethel and
ultimately to Anchorage where he was hospitalized from October 9
through 23. Wassilie suffered third degree burns on his forearm,
palm, and chest. He was unable to resume normal activities for
the remainder of the winter.3
At trial, Wassilie's expert witness, John Talbott,
testified that AVEC could have prevented the accident had it:
(1) moved the power lines horizontally three feet further away,
out of the antenna's fall zone; (2) raised the conductors four
feet in height; or (3) insulated the conductors for "15 feet
centered on the nearest point to the antenna." AVEC's expert
testified as to the impracticality of insulating the line,
stating that the greater weight would have required additional
support poles. He also established that the antenna's proximity
to the power line did not violate the National Electrical Safety
Code.4
In the memorandum decision granting judgment n.o.v.,
the trial court, focusing on the issue of foreseeability, found
that AVEC did not have a duty to specifically warn Wassilie of
the danger posed by the uninsulated lines adjacent to his home
because it could not have foreseen that Wassilie would create the
dangerous condition by moving the antenna closer to the overhead
lines. Furthermore, the court found Wassilie had received
generalized warnings about the danger of the overhead power lines
and CB antennas but ignored these warnings. Therefore, the court
concluded that even assuming that AVEC did have a duty to warn,
Wassilie could not demonstrate that his actions would have been
different if he had received an adequate warning and thus had
failed to establish that breaching this duty was the proximate
cause of his injuries. For these reasons, the trial court
overturned the jury verdict and granted judgment for AVEC.
II. STANDARD OF REVIEW
"[T]he proper role of this court, on review of motions
. . . for judgment notwithstanding the verdict, is not to weigh
conflicting evidence or judge of the credibility of the
witnesses, but . . . rather to determine whether the evidence,
when viewed in the light most favorable to the nonmoving party,
is such that reasonable men could not differ in their judgment."
Holiday Inns of America, Inc. v. Peck, 520 P.2d 87, 92 (Alaska
1974)(footnote omitted).
In reviewing judgments n.o.v. in negligence cases, this
court has focused on whether, in the exercise of reasonable
judgment, there was room for diversity of opinion among fair
minded persons. Nat'l Bank of Alaska v. McHugh, 416 P.2d 239, 242
(Alaska 1966); McCoy v. Alaska Brick Co., 389 P.2d 1009, 1010
(Alaska 1964); Snipes v. March, 378 P.2d 827, 828-29 (Alaska
1963).
III. FORESEEABILITY
The trial court reasoned that AVEC could not have
foreseen that Wassilie would move his antenna from a safe
position against the house and "place it . . . ungrounded and
improperly moored" in a position close to the lines. It
therefore held that AVEC was not liable for Wassilie's injuries
because an electric company is not liable for accidents involving
activities which were unforeseeable at the time electric lines
were installed. See, e.g., Ferriss v. Chugach Elec Ass'n, Inc.,
557 P.2d 763, 767 (Alaska 1976) (a power company was not
responsible for electrical injury incurred during construction to
place a metal canopy within six feet of an existing power line,
because such construction was not foreseeable); Larman v. Kodiak
Elec Ass'n, 514 P.2d 1275, 1280 (Alaska 1973) (a construction
worker maneuvering a crane into a wire located off the road and
thirty-one feet in the air was not foreseeable).
The court's conclusion is implicitly based on the
following premises: (1) the antenna was a safe distance from the
overhead wires when it was leaning over the house; (2) the
antenna was relocated and placed closer to the wires when it was
raised to a vertical position; and (3) the antenna was not placed
in a vertical position until after AVEC finished construction of
the overhead transmission lines.5 Wassilie maintains that all
three of the trial court's premises underlying the judgment
n.o.v. are mistaken. Although there is evidence to support the
trial court's determinations, we find that Wassilie did present
conflicting evidence.
First, there was evidence presented that, even leaning
against the house, the antenna posed a risk of contact with the
transmission line. Wassilie's expert testified that an AVEC
photograph showed that even leaning over, the antenna was above
the conductors of the electric power line so that if it fell it
would contact the wires. Next, although the evidence indicates
that the base of the antenna probably was moved when it was
righted, Wassilie testified that the antenna remained the same
distance from the lines. Finally, there is some evidence which
indicates that the antenna was upright for some period of time
after the overhead system was completed but before it was
energized. The system was energized in approximately June or
July 1985, and Wassilie's neighbor testified that he helped one
of Wassilie's sons right the antenna in the spring of 1985.
Based on this evidence, the jury may have concluded
that the dangerous condition was present before the power lines
were installed or energized.6 Assuming that the risk posed by
electrical lines was present prior to the time the lines were
energized, Wassilie's situation is distinguishable from the
circumstances in Larman and Ferriss, and the jury could have
reasonably concluded that AVEC should have been aware of the
existence of the danger before the accident took place.7 While
we recognize that the evidence in the record is conflicting,
there is evidence to support the jury's decision that the harm to
Wassilie was sufficiently foreseeable to create a duty to warn.
We must therefore consider whether the trial court correctly
concluded that Wassilie failed to adequately demonstrate that the
warnings he received were insufficient, and that additional
warnings would have caused him to change his behavior.
IV. FAILURE TO WARN
The superior court noted that Wassilie had received
warnings from "AVEC, friends, the CB package, and the antenna
instructions, among other sources." However, the record shows
that the jury may have concluded that none of these sources gave
Wassilie a clear indication of the extent of the risk.
An AVEC newsletter, Light Lines, warned of the dangers
of overhead lines, and one issue pointed out that CB antennas
should not touch the lines.8 However, Wassilie, his wife, Marie
Wassilie, and a neighbor testified that they read Light Lines
only intermittently. Wassilie's wife also testified that her
husband has "below average"reading skills and rarely reads.9
AVEC claimed that Charles Allen, Wassilie's neighbor, warned him
about the danger of the overhead lines. However, the record
indicates that Allen told Wassilie not to let the children fly
their kites near the wires, but did not warn him about the
antenna. Although the village public safety officer testified
that he made one announcement over the local CB station that CB
antennas close to the overhead wires should be moved, there is no
evidence that Wassilie heard this warning. The CB package and
antenna instructions contained warnings regarding grounding and
placement near power lines. However, Wassilie explained that he
read the instructions years earlier when he first assembled the
CB antenna; at that time he lived in an area with no overhead
power lines, so he disregarded the warning.
These warnings at most provided a generalized warning
about the danger of high voltage lines; Wassilie was not
specifically warned about the particular danger of his situation.
He admits that he knew that electricity is dangerous and metal
conducts electricity, but claims that he did not appreciate the
danger of electricity arcing between power lines and an antenna.
Thus, while Wassilie may have had "knowledge"of the risk, he
lacked an "appreciation"of the danger. See Keeton, Prosser and
Keeton on Torts, 68 at 487-89 (5th ed. 1984).
Given our conclusion that the risk posed by the
proximity of the antenna to the overhead lines was foreseeable,
we find that reasonable jurors could have concluded that AVEC
negligently failed to provide explicit warnings. Since Wassilie
testified that after the accident he had the antenna moved to a
safer location and would have done so sooner had he known of the
risk, we also find that the jurors could reasonably have found
that the failure to provide adequate warning was the proximate
cause of Wassilie's injury.10
V. CONCLUSION
In reviewing the facts presented in the record we find
that there was room for diversity of opinion among fair minded
persons. Therefore, we REVERSE the judgment notwithstanding the
verdict and REMAND this case to the superior court for a ruling
on the motion for a new trial and the motion for remittitur.
_______________________________
1. We note that the trial court erred in failing to rule on
the motion for a new trial or remittitur simultaneously with its
grant of judgment n.o.v. Alaska Rule of Civil Procedure 50(c)(1)
requires the court to rule on a motion for a new trial when it
grants a motion for judgment n.o.v.
2. AVEC interprets Wassilie's closing statement at trial as
conceding that Wassilie placed the antenna in a vertical position
after the system was energized. However, the closing statement
is ambiguous on this point.
3. Wassilie has permanent scarring on his chest and right
hand and the scarred areas are sensitive to cold; he also
experiences shortness of breath and periods of tiredness.
4. National Electric Safety Code standards are incorporated
into Alaska law. AS 18.60.580.
5. There is no question that AVEC knew or had reason to
know of the presence of Wassilie's CB antenna. During the
construction of the transmission line, AVEC's lineman spent
approximately half an hour atop a pole behind Wassilie's home,
giving him opportunity to observe the leaning antenna.
Additionally, the lineman inspected each home for grounding prior
to the energizing of the system; Wassilie's house was included in
this inspection.
6. Moreover, it is possible that the jury applied its
knowledge of local conditions to conclude that an accident was
foreseeable. Overhead wires were new to the village, and CB
antennas common. Conditions such as permafrost and wind render
antennas unstable.
7. AVEC's lineman admitted at trial that under the National
Electric Safety Code, transmission line installers have a duty to
check for anything that would present a "probable risk."
8. This newsletter was sent to all AVEC customers and
contained general information; there was no specific mailing to
Eek introducing the overhead system or issuing special cautionary
instructions.
9. Wassilie has a fifth grade education and his first
language is Yu'pik.
10. Wassilie argues that he presented the jury two
alternative theories of negligence in addition to the failure to
warn. As we have found that a reasonable jury could have found
negligence on a failure to warn theory, we need not address the
merits of Wassilie's alternative theories.
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