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Cable v. Shefchik (8/13/99) sp-5157
Notice: This opinion is subject to correction before publication in
the Pacific Reporter. Readers are requested to bring errors to the attention of
the Clerk of the Appellate Courts, 303 K Street, Anchorage, Alaska 99501, phone
(907) 264-0608, fax (907) 264-0878.
THE SUPREME COURT OF THE STATE OF ALASKA
STEVEN W. CABLE, )
) Supreme Court No. S-8264
) Superior Court No.
v. ) 4FA-95-734 CI
DON SHEFCHIK, d/b/a ) O P I N I O N
Fairbanks Concrete Plumbing, )
Appellee. ) [No. 5157 - August 13, 1999]
Appeal from the Superior Court of the State of
Alaska, Fourth Judicial District, Fairbanks,
Jay Hodges, Judge.
Appearances: Douglas Pope, Pope & Katcher,
and R. Collin Middleton, Middleton & Timme, P.C., Anchorage, for
Appellant. John J. Tiemessen, Clapp, Peterson & Stowers,
Fairbanks, for Appellee.
Before: Matthews, Chief Justice, Eastaugh,
Fabe, and Bryner, Justices. [Compton, Justice, not participating.]
MATTHEWS, Chief Justice.
Steven Cable severely injured his right hand when it was
caught in the rotating "flapper valve"blade of a concrete pump
owned and operated by Don Shefchik (doing business as Fairbanks
Concrete Pumping). Cable sued Shefchik for damages. The jury
returned a verdict in Shefchik's favor, finding that although
Shefchik had been negligent, his negligence was not the legal cause
of Cable's injuries. Cable's motion for a new trial was denied.
His main contention on appeal is that the trial court erred by
declining to instruct the jury on negligence per se. We agree and
order a new trial.
II. FACTS AND PROCEEDINGS
A. Factual Background and Trial Testimony
Cable injured his right hand in the flapper valve of
Shefchik's concrete pump. Cable was not employed by Shefchik, but
accompanied him and his employee, Jeff Nicholson, on a construction
job to "learn the ropes"in the event Shefchik needed to hire
The concrete pump is a large machine with a truck-mounted
225 horsepower diesel engine and sixty-four-foot boom. It pumps
wet concrete through a transport line and deposits the concrete
wherever the end of the line and boom are placed. Driven by
hydraulic pressure, the flapper blades swing inside the flapper
valve housing, controlling the flow of concrete within the pump.
The pump's operation manual states repeatedly in bold letters,
"Never place your hands in the valve housing."
The jury heard conflicting accounts about the events
leading to Cable's hand injury.
1. Nicholson's testimony
Jeff Nicholson, who knew Cable, arranged for Cable to
accompany him and Shefchik on a construction job on June 4, 1993.
Nicholson testified that he told Cable the "do's and the don'ts"of
working the pump and that he stressed that Cable should "never
stick [his] hand in the flapper box." Nicholson explained that he
had performed over one hundred clean-out operations on concrete
pumps and had never used a guard to cover the opening to the
flapper valve during such operations. He doubted that anyone could
rake out unused concrete during clean-out with a cover over the
flapper box. He also noted that on the day Cable was injured the
pump lacked a warning sign over the flapper valve box even though
a picture in the instruction manual depicted one. He acknowledged
pictures in the manual depicting the flapper box without a cover
According to Nicholson, prior to the accident both he and
Cable were on the back of the truck conducting clean-out operations
when Nicholson told Cable to "jump on down [off the truck] and let
me finish cleaning this up." Nicholson said he was using a hose to
finish cleaning up and after he finished spraying, he looked up and
saw that Cable had moved near the flapper valve box and had a
"funny expression on his face." Nicholson jumped down from the
truck and then realized that Cable had gotten his hand caught in
the flapper box.
When asked by Cable's counsel what he would have done
differently on the day of the accident, Nicholson said, "I'd have
Steve with me . . . at all times. . . . That way an unfortunate
accident wouldn't [have happened]."
2. Shefchik's testimony
Shefchik testified that neither the truck nor the pump
had warning signs about the dangers of the flapper valve, but he
did not believe the lack of a sign contributed to Cable's accident.
He also testified that he always told his operators never to place
their hands in the valve.
He stated that he had performed between 500 and 1,000
clean-outs on the pump in over eight years and had never used a
guard over the flapper valve in the process. Of the half-dozen
other operators he had witnessed pouring concrete, he had never
seen any of them use a guard on their pumps during clean-out. Much
of Shefchik's testimony focused on the impracticability of using a
guard during clean-out. He testified that the "manufacturer did
not intend for that guard to be used while you were cleaning
up. . . . There's not a doubt in my mind that if you put [the
guard] over the flapper blade opening, you could not clean the pump
out. . . . [Y]ou can't push concrete through [the] solid plate [of
the guard]." Shefchik acknowledged that the manual says that the
opening "shall be guarded at all times,"but he said that the
manual did not say anything about using the guard during clean-out.
3. Cable's testimony
Cable was the only eye-witness to his injury. He stated
that he had "done a wash-out/clean-up type of operation"twenty-
five to fifty times on concrete pumps with the same flapper valve
configuration. But he said he did not know that the "flapper could
snap on your hand." On the earlier occasions when Cable had
cleaned out concrete pumps, he acknowledged that the pumps lacked
guards and he expressed uncertainty about the possibility of
performing clean-out operations with one in place.
Cable did not state with certainty how his injury
occurred. He testified that he, not Nicholson, held the hose and
was spraying the flapper assembly when "I fell forward and it just
bit me." He was not sure how he fell forward, but he believed that
"there was an outside force that kind of helped me there." Another
heavy machine, a "front-end loader, had been banging around there
for sometime and I -- I think it had something to do with my being
thrown into [the flapper valve]." Cable denied putting his hand in
the flapper valve voluntarily. Testimony was also presented
suggesting that he may have slipped and accidentally placed his
hand in the flapper box.
Cable said that he did not remember Nicholson ever
telling him to keep his hands out of the flapper valve. He also
alleged that even though he claimed that he was lifted into the
flapper valve by an outside force, seeing a warning sign to keep
his hands out of the flapper box would have prevented his injury
because "[s]eeing the warning may have re-advised me of just what
a dangerous piece of machinery [the pump] was . . . [and I] may
have just very well stayed away from [the pump] altogether." He
stated that despite his earlier deposition testimony that he did
not think Nicholson was responsible for his injuries, he now
believed that Nicholson "should have supervised me considerably
4. Other testimony
Cable's expert, Stanley Freeman, testified that after
reviewing all the deposition testimony in the case he concluded
that it would have been reasonable to have a guard over the flapper
valve. He also asserted that Fairbanks Concrete Pumping "did not
perform [its] duties to protect the safety of [its] employees
properly"because of the absence of both a guard and warning signs.
On cross-examination, Freeman admitted that he had formed his
opinions, which were detailed in a deposition, about the utility of
the guard on the pump before he had ever even seen a concrete pump
Dr. Harry Smith testified as a biomechanical expert for
Shefchik. He said that given Cable's injuries, he probably reached
or slipped into the left side of the flapper valve opening,
although it conceivably could have been the right side of the
valve. Smith also stated that the guard was "not useful." "[H]ow
in the world are you going to clean that hole when there's a guard
in front of it? You obviously have to take it off. . . . [Y]ou
cannot clean the [flapper valve assembly] with the guard in front
Other witnesses testified about the extent of Cable's
injuries, rehabilitation, and lost income.
B. Procedural Issues
Cable submitted three proposed negligence per se
instructions, which referenced the Alaska General Safety Code (GSC)
and the Alaska Construction Code. [Fn. 1] The superior court
declined to give any negligence per se instructions and instead
instructed the jury that a violation of GSC section 01.0802 could
be considered evidence of negligence.
The jury returned a verdict that Shefchik was negligent,
but that his negligence was not the legal cause of Cable's
injuries. Cable moved for a new trial on various grounds. The
court denied the motion and entered judgment for Shefchik,
including costs and attorney's fees. This appeal followed.
A. The Superior Court Abused Its Discretion When It Declined
to Instruct the Jury on Negligence Per Se.
In determining whether a negligence per se instruction is
appropriate, the superior court should conduct a two-step inquiry:
First, [the superior court] must decide
whether the conduct at issue lies within the ambit of the statute
or regulation in question, by applying the four criteria set out in
the Restatement (Second) of Torts sec. 286 (1971).[ [Fn. 2]] This
threshold determination is strictly a legal conclusion, and we will
exercise our independent judgment in deciding whether the superior
court interpreted the scope of the statute or regulation correctly.
Once it has concluded that the enactment
applies to the allegedly negligent conduct, the superior court may
exercise its discretion to refuse to give the negligence per se
instruction. Such discretion is extremely limited, being confined
to those "highly unusual cases"in which "laws may be so obscure,
oblique or irrational that they could not be said as a matter of
law"to provide an adequate standard of due care, or to those where
the enactment amounts to little more than a duplication of the
common law tort duty to act reasonably under the circumstances.
The superior court's disposition of the question of whether the
enactment was too vague or arcane to be utilized as a reasonable
standard of care will only be reversed on appeal if it constitutes
an abuse of discretion.[ [Fn. 3]]
Cable's proposed instruction 1B focused primarily on
whether Shefchik violated section 01.0802 of the Alaska General
Safety Code. [Fn. 4] The superior court gave an instruction
referring to this section, but declined to give a negligence per se
instruction. [Fn. 5] Upon Cable's counsel's request that it
explain its decision, the court stated:
I don't find it's negligence per se. I find
it's one factor, and the jurors can utilize that in determining
whether or not there is negligence under the facts of this case
. . . . I find that the general safety provision is not
necessarily, if it's violated, negligence per se. It's evidence of
negligence. I can't make it clearer than that.
Under Osborne's two-step inquiry, this ruling was
erroneous. First, Cable's activities on the day he was injured lie
"within the ambit"of the GSC provisions in the proposed jury
instruction. [Fn. 6] We have held that the GSC "is generally
applicable to construction sites."[Fn. 7] Also, despite Cable's
status as Shefchik's invitee, rather than his employee, we have
emphasized that certain provisions of the GSC are "directed toward
the safety of the place of employment rather than toward the legal
relationship existing between the employer and those who may be
performing work on the premises."[Fn. 8] Cable's activities were
thus covered by the Alaska General Safety Code.
Second, the superior court abused its "extremely limited"
discretion by refusing to give a per se instruction. The GSC
provisions in instruction 1B were not "so obscure, oblique or
irrational"that, as a matter of law, they could not provide an
adequate standard of care. [Fn. 9] In State Mechanical, Inc. v.
Liquid Air, Inc., [Fn. 10] we held that the superior court did not
abuse its discretion by giving a negligence per se instruction on
a GSC provision, despite the provision's ambiguity, because the
"GSC should be given a broad interpretation."[Fn. 11] In the
present case, the GSC provisions in proposed instruction 1B were
neither ambiguous nor "obscure, oblique or irrational." In
particular, GSC section 01.0802(a) establishes a detailed standard
of care applicable to machine guarding. [Fn. 12] In Osborne, we
held that the superior court had "no area of discretion"in which
to decline a negligence per se instruction because the regulations
at issue "convey specific commands"about how electrical wires are
to be insulated. For analogous reasons, the superior court abused
its discretion in the present case by refusing to give a negligence
per se instruction referring to GSC section 01.0802.
B. It Was Not Harmless Error for the Superior Court to
Refuse to Instruct on Negligence Per Se.
In evaluating whether there has been prejudicial error
with regard to jury instructions, "the reviewing court must put
itself in the position of the jurors and determine whether the
error probably affected their judgment."[Fn. 13] We review this
question de novo. [Fn. 14]
Shefchik argues that because the jury found him
negligent, "any alleged error in the negligence per se instruction
was harmless." This argument assumes too much. While it is true
that the jury did find Shefchik negligent for something, it is not
clear what that something was. Perhaps it was failing to supervise
Nicholson and Cable more closely, or failing to post warning signs
on the pump. On this record, however, we cannot presume, as
Shefchik does, that because the jury had already found Shefchik
negligent for some action he took or failed to take, it would not
have also found him negligent for failing to place a guard over the
flapper valve if the jury had been properly instructed on
negligence per se.
The jury's determination of legal causation necessarily
depends on the basis for the finding of negligence. Its definition
of the precise character of Shefchik's negligence may have altered
the jury's analysis of causation. For example, had the jury's
finding of negligence been premised on the failure to use the
guard, it is unclear how it could have concluded that this
negligence was not a legal cause of the injury, since the evidence
seems undisputed that the guard would have prevented the injury.
In certain cases, "the difference between a negligence per se
instruction and an ordinary negligence instruction is such that
[the] error cannot be considered harmless."[Fn. 15] Accordingly,
we cannot say that the court's refusal to instruct on negligence
per se constituted harmless error.
C. Remaining Issues
1. The negligence per se instruction at the new trial
Shefchik argued extensively at trial that it was not
possible or practical to conduct clean-out operations of the pump
with the guard on. The negligence per se instruction at the new
trial should include a provision stating that Shefchik was
negligent only if he committed an unexcused violation of GSC
section 01.0802(a). [Fn. 16] Such an instruction properly tracks
the law of "excuse"as it relates to statutory and regulatory
violations that are viewed as negligent per se. For example, in
Ferrell v. Baxter [Fn. 17] we adopted the Restatement (Second) of
Torts section 288A(1) (1965), which states, in part: "An excused
violation of a legislative enactment or an administrative
regulation is not negligence."[Fn. 18] The defendant has the
burden of proving excuse inthis context. [Fn. 19]
2. The superior court did not abuse its discretion by
refusing to give proposed instructions 1A and 2.
To avoid the need to relitigate the correctness of the
superior court's refusal to give Cable's proposed instructions 1A
and 2, we address this issue here. Both proposed instructions
refer to section 05.090(a)(2)(A) of the Alaska Construction Code.
Section 05.090, in relevant part, states:
05.090 Tools -- Hand and Power.
(a) General Requirements.
(1) Condition of tools. All hand and power
tools and similar equipment, whether furnished by the employer or
the employee, shall be maintained in a safe condition.
(A) When power-operated tools are
designed to accommodate guards, they shall be equipped with such
guards when in use.
The superior court deemed this section inapplicable to
the case, concluding that because there was insufficient
documentation at trial "that the [concrete] pump truck in question
is a hand or power tool,"its coverage was not "contemplated by the
statute or the administrative regulation."
Cable argues that the court erred in rejecting these per
se instructions by incorrectly interpreting the phrase "power
Section 05.090 applies to handheld or portable power
tools, not to heavy equipment machinery. It lists such tools as
sanders, grinders, laminate trimmers, nibblers, shears, jigsaws,
and drills. [Fn. 20] The four subsections of section 05.090 --
"General Requirements,""Hand Tools,""Power-operated hand tools,"
and "Abrasive wheels and tools"-- also list handheld portable
tools. [Fn. 21] No examples of heavy equipment or machinery are
listed in section 05.090.
The doctrine of statutory construction, ejusdem generis,
undermines Cable's argument for an expansive reading of section
05.090. [Fn. 22] Thus, a general term, like "tool,"when modified
by specific terms, like "drills, saws and other hand tools,"[Fn.
23] will be interpreted "in light of those specific terms, absent
a clear indication to the contrary."[Fn. 24]
Because the specific terms of section 05.090 refer only
to handheld or portable tools, and because no indication exists
that the regulation is meant to cover other types of tools, the
superior court did not abuse its discretion in declining to give
Cable's proposed negligence per se jury instructions which refer to
Alaska Construction Code section 05.090.
The superior court's refusal to give a negligence per se
instruction was reversible error. Accordingly, the jury's verdict
is REVERSED and the case is REMANDED for a new trial. [Fn. 25]
For greater detail on the content of the instructions, see
section III.A. below.
Restatement (Second) of Torts sec. 286 (1971) provides:
The court may adopt as the standard of
conduct of a reasonable man the requirements of a legislative
enactment or an administrative regulation whose purpose is found to
be exclusively or in part
(a) to protect a class of persons which
includes the one whose interest is invaded, and
(b) to protect the particular interest
which is invaded, and
(c) to protect that interest against the
kind of harm which has resulted, and
(d) to protect that interest against the
particular hazard from which the harm results.
Osborne v. Russell, 669 P.2d 550, 554 (Alaska 1983) (quoting
Harned v. Dura, 665 P.2d 5, 12 (Alaska 1983)).
Cable's proposed instruction 1B stated, in relevant part:
Plaintiff, Steven Cable, claims that the defendant,
Don Shefchik, and his employee, Jeff Nicholson, were negligent
because they violated the provisions of the Alaska General Safety
Code. The relevant provisions of law state as follows:
. . .
01.0802 GENERAL REQUIREMENTS FOR ALL MACHINES
(a) Machine guarding.
(1) Types of guarding. One or more
methods of machine guarding shall be provided to protect the
operator and other employees in the machine area from hazards such
as those created by point of operation, ingoing nip points,
rotating parts, flying chips and sparks. Examples of guarding
methods are -- barrier guards, two-hand tripping devices,
electronic safety devices, etc.
(2) General requirements for machine
guards. Guards shall be affixed to the machine where possible and
secured elsewhere if for any reason attachment to the machine is
not possible. The guard shall be such that it does not offer an
accident hazard in itself.
(3) Point of operation guarding.
(A) Point of operation is the area
on a machine where work is actually performed upon the material
(B) The point of operation of
machines whose operation exposes an employee to injury, shall be
guarded. The guarding device shall be in conformity with any
appropriate standard therefore, or in the absence of [an]
applicable specific standard, shall be so designed and
constructed as to prevent the operator from having any part of his
body in the danger zone during the operating cycle.
If you decide that it is more likely true than not
true that the defendant, Don Shefchik, violated any part of this
law and that the violation was a legal cause of the accident, then
you are required to find the defendant negligent. Likewise, if you
decide that it is more likely true than not true that Don
Shefchik's employee, Jeff Nicholson, violated any part of this law
and that the violation was a legal cause of the accident, then you
are required to find Jeff Nicholson negligent. But if you find
that neither the defendant nor Jeff Nicholson violated the law,
then you should pay no further attention to this law and you should
decide whether the defendant and Jeff Nicholson were negligent on
the basis of the other instructions.
The court's instruction stated, in part:
If you decide it is more likely true than not
true that the defendant violated any part of this law, you may
consider this fact along with all the other evidence, including any
evidence tending to show why the law was violated, in deciding
whether under the circumstances of this case the defendant used
See Osborne, 669 P.2d at 554.
State Mechanical, Inc. v. Liquid Air, Inc., 665 P.2d 15, 19
Bachner v. Rich, 554 P.2d 430, 444 (Alaska 1976).
Osborne, 669 P.2d at 554-55.
665 P.2d 15 (Alaska 1983).
Id. at 20-21.
See note 4, supra.
Harris v. Keys, 948 P.2d 460, 465 (Alaska 1997) (citation
Id. at 465-66.
Godfrey v. Hemenway, 617 P.2d 3, 8 (Alaska 1980).
The pattern negligence per se instruction of the Alaska
Pattern Jury Instructions can serve as a model. It provides that
violations may be excused if they result from the defendant's
inability after reasonable care to comply with the law. See Alaska
Civil Pattern Jury Instruction 3.04A (1988 Rev.).
484 P.2d 250 (Alaska 1971).
See Ferrell, 484 P.2d at 263. The full text of the Restatement
(Second) of Torts sec. 288A (1965), states:
(1) An excused violation of a legislative
enactment or an administrative regulation is not negligence.
(2) Unless the enactment or regulation is
construed not to permit such excuse, its violation is excused when
(a) the violation is reasonable because
of the actor's incapacity;
(b) he neither knows nor should know of
the occasion for compliance;
(c) he is unable after reasonable
diligence or care to comply;
(d) he is confronted by an emergency not
due to his own misconduct;
(e) compliance would involve a greater
risk of harm to the actor or to others.
In the present case, sec. 288A(2)(c) would be the most
relevant Restatement provision relating to Shefchik's actions.
Comment g, which explains this clause, states: "Most legislative
enactments and regulations are construed to require only reasonable
diligence and care to comply with them; and if after such diligence
and care the actor is unable to comply, his violation will
ordinarily be excused."
Id. at 266.
See, e.g., Alaska Construction Code sec. 05.090(a)(4)(A) &
See Alaska Construction Code sec. 05.090(a),(b),(c), & (d).
See Alaska State Employees Ass'n v. Alaska Public Employees
Ass'n, 825 P.2d 451, 460 (Alaska 1991) (ejusdem generis -- "the
general is controlled by the particular").
See Alaska Construction Code sec. 05.090(c)(3)(A).
State Farm Fire & Cas. Co. v. Bongen, 925 P.2d 1042, 1046
(Alaska 1996) (citing Black's Law Dictionary (6th ed. 1990)).
Because we reverse, Cable's arguments that the superior court
erred in denying his motion for a new trial and in disallowing his
rebuttal testimony are moot.