No. 89-383 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

JOAN M. GRIFFITH, as Guardian of the 

minor children of CHARLES PAUL GRIFFITH; 

and JOAN M. GRIFFITH, individually, 

Plaintiffs and Respondents, 

MONTANA POWER COMPANY, a corporation, 

Defendant and Appellant. 

APPEAL FROM: District Court of the Twentieth Judicial District, 

In and for the County of Sanders, 

The Honorable Ed McLean Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Richard Ranney; Shelton C. Williams; Williams Law 

Firm; Missoula, Montana 

For Respondent: 

Kenneth H. Grenfell; McChesney, Grenfell & Ogg, 

Missoula, Montana 

Ben Everett; night, Dahood, McLean & Everett; 

Anaconda, Montana 

Submitted on Briefs: May 16, 1990 

Filed: 

Decided: June 26, 1990 

0 

# Clerk 
Justice Fred J. Weber delivered the opinion of the Court. 

After trial in the District Court of the Twentieth Judicial 

District, Sanders County, the jury returned a verdict in favor of 

defendant, Montana Power Company (MPC). Plaintiffs moved the 

District Court for a new trial based on irregularities in the 

proceedings which prevented a fair trial and an error in law at 

the trial. The District Court granted plaintiffs a new trial and 

defendants appeal. We affirm. 

The sole issue for our consideration is whether the District 

Court erred in granting plaintiffs a new trial? 

certain agreed facts were read as true to the jury prior to 

trial. They may be summarized as follows: MPC entered into a 

contract with Williams Construction Company, Inc. (Williams), to 

replace a pole and certain power distribution lines owned by MPC 

near a bridge crossing the Clark Fork River approximately 4 miles 

east of Paradise, Montana. Charles Paul Griffith (Mr. Griffith), 

was employed by Williams as a lineman on the Clark Fork River 

crossing project. The crews were working to string new lines 

across the river. While Mr. Griffith was working with other 

members of the crew to raise a new distribution line, the line 

became hung up in the river. Mr. Griff ith was working from the 

surface of the bridge. Tim Smith, an MPC employee, was assisting 

the Williams crew by driving a pickup truck which was used to pull 

the new lines into position. Richard Hewitt, the Williams crew 

foreman, was located on the pole on the west side of the river. 
A1 Whitaker, another Williams lineman, was on the pole on the east 

side of the river crossing. Whitaker attached a tag line connected 

to a brass hook to the conductor which was caught in the river, and 

Mr. Griffith then took the tag line to the bridge and used it to 

pull the conductor free from the obstruction in the river. At some 

point the conductor contacted an energized portion of the 

distribution line, became energized, and Mr. Griffith was 

electrocuted. He fell from the bridge, and died of his injuries. 

The evidence established that the tag line which Mr. Griffith 

was using to free the conductor was nonconducting polypropylene, 

and was not the path through which electricity entered his body. 

None of the other crew members were eye witnesses to the manner of 

electrocution. Mr. Griffith had electrical burn marks on both 

hands, and there were apparently correspondending burn marks on the 

conductor. In addition, Mr. Grif f ith had burn marks on both knees. 

MPC contends that the physical facts show that after the new 

conductor was freed by means of the tag line, Mr. Griffith pulled 

the conductor towards himself, and after it had become energized 

on coming into contact with the 7200 volt phase, he placed his 

hands on it. 

Plaintiff, ioan M. Grif f ith, acting individually, and as 

guardian of her three minor children, brought this action against 

MPC based on alleged negligence. Plaintiffs contended that MPC 

owed Mr. Griffith and the Williams line crew a duty to provide a 

safe place to work pursuant to .fj§ 50-71-201, 202 and 203, MCA 
(1985). They contended such duty was breached when MPC failed to 

exercise reas0nabl.e care and to take proper precautions surrounding 

the work on the project. Plaintiffs also maintained that MPC 

retained substantial control and right to control Williams on this 

project and that MPC negligently exercised that control. 

Plaintiffs further contended that such duty was nondelegable and 

therefore any negligence of Williams was to be imputed to MPC. 

They maintain that MPC knew or should have known that the kind of 

work the Williams crew was doing created a I1peculiar riskff of 

physical harm to individuals unless special precautions were taken. 

Plaintiffs sought damages for loss of society, comfort, consortium, 

contribution to support, education and training, and emotional 

distress as well as other expenses. 

MPC denied any negligence on its part. It contended that 

Williams, acting as an independent contractor, retained control of 

its employees. In MPCfs proposed pre-trial order, it summarized 

its contentions: 

[tlhe sole cause of Mr. Griffithfs tragic accident was 

his inexplicable conduct in pulling the conductor to him, 

placing his hands on it, while his knees were against the 

steel bridge rail, and continuing to pull the wire to the 

point that it contacted the energized south phase. Mr. 

Griffithfs conduct violated the work rules agreed upon 

by the Williams crew, and violated various OSHA and NESC 

rules and requirements, all of which were well known to 

Mr. Griffith as a result of his education, training and 

experience as a journeyman lineman. The conduct of Mr. 

Griffith was unforeseeable to his foreman Dick Hewitt, 

to Williams Construction Co., Inc., and to the Montana 

Power Company, and it was the sole cause of his death. 

MPC further contended that the Occupational Safety and Health 
Review Committee conducted a detailed investigation and concluded 

that there were no OSHA violations and that the sole cause of the 

incident was the flunforeseeable and idiosyncratic behavior1' of Mr. 

Griffith. MPC concluded that Mr. Griffith's own negligence barred 

or reduced any recovery for damages. 

Prior to trial plaintiffs moved the District Court to prohibit 

any mention at trial of the OSHA Administrative Law Judge's (AW) 

findings of fact, conclusions of law and judgment, as well as 

Department of Labor charges against Williams, and the absence of 

OSHA and Montana Public Service Commission's citations to MPC. 

MPC contended that the Am's findings, conclusions and 

judgment should be admitted as an exception to the hearsay rule 

under Rule 803(24), M.R.Evid. The District Court granted 

plaintiffs' motion to prohibit any reference to the Am's findings, 

conclusions and judgment, stating: 

It is the opinion of this Court that Plaintiffs' motion 

to prohibit mention of the OSHA Am's Findings of Fact, 

Conclusions of Law and the absence of MPSC and OSHA 

citations to Montana Power Company should be granted. 

However, if Plaintiffs call experts to testify as to the 

violation of certain OSHA standards. the Court will allow 

the introduction of evidence of the OSHA hearinus. 

(Emphasis added.) 

During plaintiffs case-in-chief, their expert was not 

questioned and did not testify about OSHA. However, on crossexamination, defense counsel asked the expert whether there were 

any violations of the OSHA standards. Plaintiffs objected to such 

questioning, but were overruled. MPC questioned the plaintiffs' 

expert at length with regard to the OSHA standards. 
During trial MPC refered to OSHA a number of times. MPC also 

submitted a number of instructions with regard to OSHA regulations. 

At the conclusion of the trial the jury returned a verdict for MPC. 

Plaintiffs then moved for a new trial. The motion was granted and 

MPC appeals. 

Did the District Court err in granting plaintiffs a new trial? 

The District Court has sound discretion to grant a new trial 

and it will not be overturned absent a showing of manifest abuse 

of discretion. Stanhope v. Lawrence (Mont. 1989), 787 P.2d 1226, 

47 St.Rep. 438. 

On appeal, MPC contends that the jury could not have 

understood this case without reference to OSHA since OSHA provides 

the standard of care the linemen should use in this case. MPC 

maintains that since violations of safety standards are evidence 

of negligence, then compliance with the safety standard is evidence 

of no negligence. It contends the District Court did not err in 

admitting the OSHA evidence or in subsequently instructing the jury 

on OSHA standards. 

Plaintiffs contend that under the court's ruling, as 

reemphasized a number of times in the course of conferences between 

counsel and the court, plaintiffsv conduct was severely limited. 

In substance plaintiffs argue they were prohibited from questioning 

their experts on possible violations of OSHA in the course of 

direct examination. Plaintiffs' expert, on direct examination, 

testified only to violations of the National Electric Safety Code 
(NESC) . It was only on cross-examination that he made any 

reference to OSHA. Plaintiffs contend this effectively eliminated 

any opportunity on their part to present evidence of OSHA 

violations; while effectively allowing MPC to present evidence of 

OSHA compliance. 

At the request of MPC the District Court gave a number of 

instructions on OSHA. Plaintiffs contend that the instructions 

together with the OSHA evidence allowed as to MPC, and the 

limitation upon evidence as to the plaintiffs, prejudiced their 

case. We agree with the District Courtfs conclusion that there was 

such prejudice. 

As mentioned, the District Court effectively prohibited 

plaintiffs1 examination of their own expert on OSHA, and yet 

allowed MPC to cross examine the same expert on OSHA. The 

instructions given by the court included Instruction #18 which 

read: 

Plaintiffsf Decedent, Charles Paul Griffith, was 

bound to comply with applicable provisions as established 

by the Occupational Safety & Health Administration (OSHA) 

and applicable provisions of the NESC. If you were to 

find that he violated an applicable provision of the OSHA 

standards, you would consider that to be evidence of his 

negligence. If you were to find that he violated an 

applicable provision of the NESC, you would find that 

that constitutes negligence as a matter of law. Such 

negligence is of no consequence unless it acted as a 

cause of the accident in question. 

Instructions #29 and #30 instructed the jury on specific OSHA 

provisions. ~nstruction #32 read: 

The requirements of the Occupational Safety 61 Health 

Act apply to Williams Construction Co., Inc. and its 
employees, including Plaintiffs' Decedent, Charles Paul 

Griffith. The OSHA code does not apply to the Montana 

Power Company in connection with the activities involved 

in the present action unless you find Montana Power 

vicariously liable for the Williams Construction Co., 

Inc. if any. [sic] 

In the order and opinion granting plaintiffs' motion for a new 

trial the District Court stated its reasons as follows: 

It is the Court's opinion that the Court committed error 

with respect to the OSHA evidence. This Court had 

previously granted the Motion in Limine prohibiting 

mention of the OSHA Am's Findings of Fact, Conclusions 

of Law and Judgment. Plaintiffs' counsel was advised 

that if he introduced evidence of OSHA violations, 

Defendant would then be allowed to introduce evidence of 

the OSHA findings. When Plaintiffs' expert was called 

to testify, no questions asked of him were directed to 

OSHA on dikect examination. However, on crossexamination, Defense Counsel asked the witness whether 

there were any violations of the OSHA standards. 

Plaintiffs' counsel objected to this line of questioning, 

arguing that it should not be allowed given the Court's 

ruling on the Motion in Limine. The Court overruled the 

objection and later issued instructions as to compliance 

with OSHA regulations. 

The court later stated that it had committed error in giving 

any instructions with regard to OSHA. We agree that the District 

Court properly granted a new trial and conclude there was no abuse 

of discretion. The effect of the court's rulings, including 

instructions, was to deny the plaintiffs an opportunity to present 

any evidence of OSHA violations by MPC or by Williams for which MPC 

could be held vicariously liable. On the other hand, the effect 

was to allow MPC to present its theory of compliance with OSHA 

together with extensive reference to OSHA regulations, to their 

obvious benefit. We hold that the District Court did not err in 

granting plaintiffs a new trial. 
Without ruling upon the same, we make the following comments. 

Under Runkle v. Burlington Northern (1980), 188 Mont. 286, 303-4, 

613 P.2d 982, 992-93, and similar cases, it would appear that 

evidence of the OSHA regulations and direct evidence of the breach 

of the same or compliance with the regulations, would be 

admissible. 

Affirmed. 

We Concur: A 

. 

'chief Justice 

Justices 

Justice Diane G. Barz did not participate.