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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Petranovich v Matanuska Electric Assoc (05/11/2001) sp-5406

Petranovich v Matanuska Electric Assoc (05/11/2001) sp-5406

     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
                                 


CLAYTON PETRANOVICH,          )
                              )    Supreme Court No. S-9346
             Appellant,       )
                              )    Superior Court No.
     v.                       )    3AN-97-10642 CI
                              )
MATANUSKA ELECTRIC            )    O P I N I O N
ASSOCIATION,                  )
                              )    [No. 5406 - May 11, 2001]
             Appellee.        )
______________________________)



          Appeal from the Superior Court of the State of
Alaska, Third Judicial District, Anchorage,
                     Rene J. Gonzalez, Judge.


          Appearances:  Charles W. Coe, Anchorage, for
Appellant.  Randall J. Weddle and Jon K. Goltz, Holmes Weddle &
Barcott, P.C., Anchorage, for Appellee.  


          Before: Fabe, Chief Justice, Matthews,
          Eastaugh, Bryner, and Carpeneti, Justices.  


          PER CURIAM. 


          The superior court granted summary judgment to Matanuska
Electric Association (MEA) in Clayton Petranovich's personal injury
action against MEA.  Petranovich argues on appeal that the superior
court erred in concluding that there was no issue of material fact
on the question of MEA's retained control.  We review his claim de
novo [Fn. 1] and will affirm if there are no genuine issues of
material fact [Fn. 2] -- if no reasonable jurors could disagree on
the factual question -- and MEA is entitled to judgment as a matter
of law. [Fn. 3]  We draw all reasonable inferences in Petranovich's
favor. [Fn. 4]  
          We AFFIRM, for the reasons stated in the two thoughtful
decisions issued by Judge Rene J. Gonzalez.  Those decisions are
set out in Appendix A and Appendix B. [Fn. 5]  



                            FOOTNOTES


Footnote 1:

     See Martinson v. ARCO Alaska, Inc., 989 P.2d 733, 735 (Alaska
1999) (citing Ramsey v. City of Sand Point, 936 P.2d 126, 129
(Alaska 1997) (citation omitted)).


Footnote 2:

     See id.


Footnote 3:

     See id. (citing McGee Steel Co. v. State, 723 P.2d 611, 614
(Alaska 1986)).


Footnote 4:

     See id. (citing Ramsey, 936 P.2d at 129).


Footnote 5:

     We have independently reviewed the record to confirm the
factual accuracy of those decisions.  In some instances the
decisions draw factual conclusions unwarranted in a grant of
summary judgment.  We have not corrected those conclusions here
because they are not material to the decisions and the decisions
are factually accurate in all material respects. 

                           APPENDIX A*


          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

                     THIRD JUDICIAL DISTRICT


CLAYTON PETRANOVICH,               )
                                   )
               Plaintiff,          )
                                   )
v.                                 )    Case No. 3AN-97-10642 CI
                                   )
MATANUSKA ELECTRIC ASSOCIATION,    )
                                   )
               Defendant.          )
___________________________________)


                              ORDER
           Defendant's Motion for Summary Judgment and
          Plaintiff's Cross-Motion for Summary Judgment


I.   INTRODUCTION
          Clayton Petranovich, a lineman, suffered serious injury
while working on an energized power line owned by Matanuska
Electric Association (MEA).  At the time, Petranovich was working
for an independent contractor, and was free to choose his own
methods for doing the job; MEA did not retain direct control over
his work.  MEA is not responsible for Petranovich's acts, thus
summary judgment for Matanuska Electric Association is granted. 
II.  FACTS
          On December 21, 1995, Clayton Petranovich suffered
serious injury while working on the Matanuska Electric Association
Cache Creek power line.  A lineman with thirty years' experience,
Petranovich was foreman of a crew that was installing "inserts" --
additional utility poles, added to an existing line to support
sagging wires.  This work was done while the power line was
energized, at approximately 14,400 volts; working with the line
energized was standard practice for a project such as this one. 
Aside from the accident itself, there were no unusual circumstances
that distinguished this particular project from others of its type. 
          Basically, the procedure for installing an "insert"
involved moving the power lines out of the way by attaching ropes
or tools to the lines and pulling on them; next, the crew would set
up a new utility pole, midway between the existing poles; and
finally, the linemen would secure the power lines to the new pole. 
This particular project was being done under contract, by a four-
man crew from Vista Electrical Contractors, Inc.; Petranovich was
foreman of the crew.  Since the crew worked independently, there
were no MEA personnel present when the accident occurred.  
          At the time of the accident, Petranovich and another
lineman were at the top of a newly installed utility pole, securing
an energized line to an insulator on a bracket that was attached to
the pole.  There were two lines to be attached; one, the energized
line, carried 14,400 volts of electricity; the other a "neutral"
line, was not energized; this line served as an electrical ground,
to complete the circuit in the power distribution grid.  
          Before attaching the energized line, the linemen had
brought the neutral line to the top of the pole, and rested it on
the metal bracket.  The placement of the neutral line on the metal
bracket atop the pole was not the usual practice in the industry;
normally, the neutral line would have been tied into an insulator,
covered up, or kept out of the way until the energized line was
secured.  The decision to rest the neutral line on the metal
bracket turned out to have disastrous consequences.  
          As Petranovich was attaching the energized line to the
insulator, a lineman on the ground held the line under control by
pulling downward on it with an attached rope.  Somehow, Petranovich
lost control of the line; it slipped or rolled off the insulator,
and fell toward the ground.  Petranovich lost his footing and tried
to regain his balance, placing his right hand on the pole -- near
the metal bracket -- and throwing his left arm outward in the air. 
          When the energized line fell off the insulator, the
lineman holding it below lost control of it.  The energized line
bounced back upwards, striking Petranovich on his outstretched left
arm, while his right arm was still on the pole, near the metal
bracket that was in contact with the neutral, non-energized line --
thus creating an electrical ground.  The instant that the energized
line struck Petranovich's left arm, a short circuit was created,
and the electric current coursed through his body.  Petranovich
survived the accident, but he suffered severe injuries, losing part
of one arm including his hand, and losing partial use of his other
arm and hand.  
          From a scientific point of view, Petranovich's injuries
occurred because he came into contact with an energized line and an
electric ground at the same moment; if he had contacted only the
energized line, without also contacting the grounded bracket, the
resulting injury would not have occurred.  
III. THE PARTIES' ARGUMENTS
          Petranovich claims that MEA should be held liable for the
accident, and MEA now moves for summary judgment.  MEA argues that
the risks this job entailed were completely normal for electrical
linemen; Petranovich and his co-workers were well aware of these
risks, and knew how to manage them safely.  According to MEA,
Petranovich and his crew are the sole parties at fault.  Noting
that an employer of an independent contractor is usually not liable
for injuries incurred in the line of work by the contractor's
employees, MEA concludes that summary judgment in their favor is
warranted.  
          Petranovich cross-moves for summary judgment in his
favor.  He concedes that he knew the risks involved in working on
an energized power line, and he does not dispute the findings from
the accident investigations.  Nevertheless, he posits that an
employer of an independent contractor may be liable for injuries to
the contractor's employees, if the employer retained control over
some aspect of the work, or assumes affirmative duties with regard
to safety, and fails to exercise that control with reasonable care,
with the result that the employee is injured.  Although he concedes
that MEA did not exercise any actual control over the work while it 
was being done (by assigning an on-site supervisor, or the like) he
argues that MEA retained sufficient control, through the terms of
the contract with Vista, to trigger liability.  
          In support of his position, Petranovich notes that: 
          --   the contract required Vista to comply with all
applicable safety statutes and ordinances, as well as MEA's safety
rules and regulations; 
          --   MEA's design engineer was to have complete authority
to transmit instructions, receive information, and interpret and
define MEA's policies and decisions with respect to materials,
equipment, elements and systems pertinent to the work; 
          --   MEA reserved the right to stop work because of the
weather; 
          --   MEA reserved the right to change plans,
specifications, and sequence of construction on the project; 
          --   the contract required that Vista obtain clearance
from MEA dispatch prior to working on energized equipment; 
          --   MEA reserved the right to set specifications for the
materials used; 
          --   MEA reserved the right to remove Vista employees
from the job, if they were incompetent, insubordinate, or otherwise
unsuitable; 
          --   MEA reserved the right to inspect and approve the
project, and the materials and equipment used, as well as Vista's
payrolls, materials invoices, and other records; 
          --   MEA controlled the time and manner of construction
on the project; and 
          --   Vista had to perform the project according to
detailed MEA instructions.  
          In Petranovich's view, MEA breached its duty of care,
because they never provided the Vista crew with instructions on how
to safely proceed with the project; MEA failed to inspect the Cache
Creek project; and MEA never communicated with the crew while the
work was being done.  
          More specifically, Petranovich points to two omissions of
his own, which he claims should have triggered corrective action on
MEA's part:  he never contacted MEA dispatch to obtain clearance
for working on the energized line, and he never contacted the
dispatch to ensure that the oil circuit re-closer (a device
analogous to a circuit breaker, which resets itself after being
activated) would be placed on the proper "one-shot" setting so that
it would not reset.  
          Petranovich does not argue that the oil circuit recloser
("OCR") or his lack of clearance were themselves causative factors
in the accident.  Instead, he insists that MEA should have noticed
that he was not following proper procedure, and should have
intervened at that point.  Had they done so, Petranovich concludes,
the accident would not have occurred.  
IV.  DISCUSSION
     A.   The Standard for Summary Judgment
          Summary judgment is appropriate if there is no genuine
issue as to any material fact and the movant is entitled to
judgment as a matter of law. [Fn. 1]  The party opposing summary
judgment need not establish that it will ultimately prevail at
trial, but only that there exists a genuine issue of fact to be
litigated. [Fn. 2]  In ruling on a motion for summary judgment, the
court is required to draw all reasonable inferences in favor of the
nonmoving party and against the movant. [Fn. 3]  Once the movant
has made a prima facie case, the non-movant is required, in order
to prevent summary judgment, to set forth specific facts showing
that he could produce evidence reasonably tending to dispute or
contradict the movant's evidence and thus demonstrate that a
material issue of fact exists. [Fn. 4]  Broad generalizations and
unsupported conclusory allegations are not statements of fact
sufficient to prevent a grant of summary judgment. [Fn. 5]
     B.   The Terms of a Contract Are an Issue of Law for the
          Court.

          In negligence cases, the existence and extent of a duty
of care are questions of law for the court. [Fn. 6]  In general, an
employer of an independent contractor is not liable for negligence
of the independent contractor; however if the contracting party
retains control over any part of the work, they can be subject to
liability for failing to exercise that control with reasonable
care. [Fn. 7]  
          The question of whether a party exerted sufficient
control to invoke liability under this rule is normally a question
of fact left to the jury. [Fn. 8]  However, where rational minds
could not disagree, this issue is subject to disposition by the
court. [Fn. 9]  To determine whether the nature and extent of the
control is sufficient to impose liability, both the contractual
provisions and the actual exercise of control are relevant. [Fn.
10]
          In this case, Petranovich does not suggest that MEA
exercised any actual control over the Vista crew as they were
working; rather, he argues that MEA did not provide the oversight
that would have prevented the accident.  To support his claim that
MEA retained the right to control his work, he relies solely on the
terms of the contract.  Since interpretation of the terms of a
contract is an issue of law for the court, [Fn. 11] this issue is
ripe for summary judgment.  
     C.   Petranovich Has Not Established the Requisite Control.
          The retained control theory of liability for independent
contractors has been addressed on at least eleven occasions by the
Supreme Court of Alaska. [Fn. 12]  A review of those cases, and
comparison with the present case, reveals that MEA did not retain
sufficient control to be held liable here.  Although Petranovich
points to a multitude of contract provisions in support of his
retained control theory, those provisions undercut rather than
support his argument. 
          The precise nature and extent of control required to
incur liability under the retained control doctrine must be more
than the normal right of an employer to ensure that the work is
done in a satisfactory manner.  
          It is not enough that [the employer] has
merely a general right to order the work stopped or  resumed, to
inspect its progress or to receive reports, to make suggestions
recommendations which need not necessarily be followed, or to
prescribe alterations and deviations. . . .  There must be such a
retention of a right of supervision that the contractor is not
entirely free to do the work in his own way.[ [Fn. 13]]

          While the contract between MEA and Vista does have a
section that discusses the time and manner of construction, that
section only contains general provisions requiring the work to be
done in accordance with the contract specifications. 
Significantly, the contract also provides that the "construction
sequence is at bidder's discretion."  While the contract contains
a general provision giving MEA the right to conduct inspections of 
the project, and to stop work, the cite from Hammond v. Bechtel,
Inc. above makes it clear that these provisions are not enough to
attribute liability to MEA.  
          The contract provisions do allude to safety requirements
in several places; however, these provisions make it clear that
Vista, not MEA, was responsible for compliance with all applicable
safety requirements.  Generally, contract terms delegating
responsibility to the contractor are enforceable, and absolve the
employer from liability for the matter delegated. [Fn. 14]  There
is nothing in the contract that suggests that MEA would retain
control over safety matters, or provide supervision or safety
inspections, or assume any affirmative duties in this regard. 
"[I]f the employer retains only standard 'boilerplate' provisions
with respect to safety inspections and requirements, but assumes no
affirmative duties and never directs the method of performance,
there is insufficient control or supervision to render" the
employer liable. [Fn. 15]
          In this case, there is no dispute that the risks
Petranovich encountered were routine.  Where the independent
contractor encounters only routine risks, courts discourage
shifting responsibility for those risks onto the employer.  
          Every . . . project has some inherent dangers
for which routine precautions are necessary.  The employer should
not be compelled to become familiar with the routine aspects of the
contractor's work and safety practices, when the contractor is
already aware of the hazards and is in a better position to take
preventive action . . . .[ [Fn. 16]]

          Also significant is an area on which the contract was
silent.  In this case, the accident occurred during the process of
attaching an energized line to a power pole; but there is nothing
in the contract that specifies the procedure by which this was to
be accomplished.  Since the contract was silent on this point,
Petranovich was free to choose his own methods, and MEA had no duty
to oversee Petranovich's choice.  
          Petranovich argues that MEA should have noticed that he
failed to call in for clearance to work on the energized wire, and
MEA should have noticed that he failed to request that the oil
circuit recloser be placed on its proper setting.  This is
irrelevant, since these oversights had nothing to do with the
accident.  If MEA had noticed these omissions, and had acted on
them, at most they would have required Petranovich to be more
attentive to proper call-in procedures.  Even if MEA had a duty to
ensure that Petranovich properly called in, that would not equate
to a duty to prevent the accident that occurred.  
          Petranovich also complains that MEA never gave him any
safety instructions, nor reviewed safety procedures with him. 
There is nothing in the contract to indicate that MEA undertook any
such obligation.  Petranovich was a lineman with thirty years'
experience, and the foreman for the independent contractor. 
Petranovich's employer considered him to be one of the their best
employees, and a highly-qualified electrician who was fully
familiar with safety procedures.  There is nothing in the contract
with Vista to suggest that MEA promised to provide an on-the-spot
supervisor to oversee Petranovich's supervision of his own work
crew.  
          This case is not comparable to other cases where
employers have been held liable for the acts of independent
contractors under the retained control theory.  The contract
provisions invoked by Petranovich do not support his claim that MEA
exercised sufficient control over his work to be held liable. 
Petranovich's allegation that MEA had a duty to prevent this
accident has no evidentiary support, and does not raise a factual
dispute.
V.   CONCLUSION
          This court is sympathetic to the fact that Clayton
Petranovich has suffered a horrible injury, which will drastically
impair his ability to live the rest of his life in a normal way. 
However, that fact does not justify imposing liability upon
Matanuska Electric Association for circumstances that were not
within MEA's control.  MEA did not retain sufficient control over
the work done by Vista Electrical Contractors, Inc. to be held
liable for this accident.  
          For the reasons above, IT IS HEREBY ORDERED THAT the
Motion for Summary Judgment filed by Matanuska Electric Association
is GRANTED.  The Cross-Motion for Summary Judgment filed by Clayton
Petranovich is DENIED.  
          DATED at Anchorage, Alaska, this 25th day of July, 1999. 

                                   /s/ Rene J. Gonzalez          
                                   Superior Court Judge




                      FOOTNOTES (Appendix A)

Footnote *:

     We have edited the superior court's decision to conform to our
technical rules.  

                                 
Footnote 1:

     See Alaska R. Civ. P. 56(c). 


Footnote 2:

     See Alaska Rent-A-Car, Inc. v. Ford Motor Co., 526 P.2d 1136
(Alaska 1974).  


Footnote 3:

     See id.


Footnote 4:

     See Howarth v. First Nat'l Bank of Anchorage, 540 P.2d 486,
489-90 (Alaska 1975), aff'd on reh'g, 551 P.2d 934 (Alaska 1976). 



Footnote 5:

     See Fomby v. Whisenhunt, 680 P.2d 787, 792-93 (Alaska 1984). 



Footnote 6:

     See Beck v. State, 837 P.2d 105, 109 (Alaska 1992). 


Footnote 7:

     See Hobbs v. Mobil Oil Corp., 445 P.2d 933, 934 (Alaska 1968). 



Footnote 8:

     See Parker Drilling Co. v. O'Neill, 674 P.2d 770, 776 (Alaska
1983); Morris v. City of Soldotna, 553 P.2d 474, 478 (Alaska 1976). 



Footnote 9:

     See Morris, 553 P.2d at 478-79.  


Footnote 10:

     See Moloso v. State, 644 P.2d 205, 211 (Alaska 1982).  


Footnote 11:

     See Davis v. Dykman, 938 P.2d 1002, 1008 n.7 (Alaska 1997). 


Footnote 12:

     See State, Dep't of Natural Resources v. Transamerica Premier
Ins. Co., 856 P.2d 766, 773 (Alaska 1993); Dahle v. Atlantic
Richfield Co., 725 P.2d 1069, 1072 (Alaska 1986); Parker Drilling
Co. v. O'Neill, 674 P.2d 770, 776 (Alaska 1983); Moloso, 644 P.2d
at 210; Sterud v. Chugach Elec. Ass'n, 640 P.2d 823, 827 (Alaska
1982); Everette v. Alyeska Pipeline Serv. Co., 614 P.2d 1341, 1347
(Alaska 1980); Hammond v. Bechtel, Inc., 606 P.2d 1269, 1273
(Alaska 1980); State v. Morris, 555 P.2d 1216, 1218 (Alaska 1976);
Morris, 553 P.2d at 478-80; Sloan v. Atlantic Richfield Co., 552
P.2d 157, 160 (Alaska 1976); Hobbs, 445 P.2d at 934.  


Footnote 13:

     Hammond, 606 P.2d at 1275 (citation omitted). 


Footnote 14:

     See Dahle, 725 P.2d at 1073.  


Footnote 15:

     Moloso, 644 P.2d at 211.  


Footnote 16:

     Sievers v. McClure, 746 P.2d 885, 889 (Alaska 1987). 


APPENDIX B *


          IN THE SUPERIOR COURT FOR THE STATE OF ALASKA

                     THIRD JUDICIAL DISTRICT


CLAYTON PETRANOVICH,               )
                                   )
               Plaintiff,          )
                                   )
v.                                 )    Case No. 3AN-97-10642 CI
                                   )
MATANUSKA ELECTRIC ASSOCIATION,    )
                                   )
               Defendant.          )
___________________________________)


                              ORDER
              Plaintiff's Motion for Reconsideration


          The motion for reconsideration filed by Clayton
Petranovich is denied.  This court has not overlooked any material
facts or legal principles here.  
          Although Petranovich argues that this court has
overlooked or misconstrued the effect of the National Electrical
Safety Code, that is not so.  Before issuing its summary judgment
order, this court reviewed the NESC as a whole, as well as the
particular sections cited by Petranovich, and found that it has no
legal effect here.  The NESC does not have the force of law; it is
a set of industrial standards that are intended to serve as
guidelines for parties who work on electric power lines and
communication lines.  These guidelines have not been adopted as law
in Alaska, thus they do not impose any legally binding obligation
on MEA.  Moreover, the NESC does not impose any non-delegable
obligations on utilities as such; the code refers generically to
anyone who works on or has control of electrical power lines and
communication lines -- this includes authorized contractors as well
as utilities and other entities. [Fn. 1]  
          In his motion for reconsideration, Petranovich argues
that MEA personnel actually exercised on-site safety control as a
factual matter.  This argument directly contradicts the position he
took prior to summary judgment, where he insisted that "MEA never
inspected the Cache Creek project to ensure that the Vista crew was
abiding by the proper safety procedures or regulations." [Fn. 2] 
Nevertheless, this court examined the issue of on-site inspections,
and found that there is no evidence that MEA exercised any control,
through on-site inspections or otherwise, that would materially
differ from MEA's normal right to inspect the progress of the work. 
MEA did not assume a duty to ensure Petranovich's safety.  
          Although Petranovich states that "the court's decision
does not appear to address the significance of MEA's violation of
switching and clearance procedures," this issue was addressed by
the court, at page 11 of its order.  
          Other arguments raised by Petranovich that were not
raised prior to summary judgment are not properly presented here.
          For the reasons cited above, IT IS HEREBY ORDERED THAT
the Plaintiff's Motion for Reconsideration is DENIED. 
          Dated at Anchorage, Alaska, this 12th day of August,
1999.

                                   /s/ Rene J. Gonzalez          
                                   Superior Court Judge




                      FOOTNOTES (Appendix B)

Footnote *:

     We have edited the superior court's decision to conform to our
technical rules.  


Footnote 1:

     See, e.g., National Elec. Safety Code, sec. 1-012-B, sec. 1-
011.  


Footnote 2:

     Pf. Br. Opp'n Mot. Summ. J. & Supp. Cross-Mot. Summ. J., p. 9
(emphasis added).