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 Judgepresiding.

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



### #ClerkJustice 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. Griffith was working from the surface of the bridge. Tim Smith, an MPC employee, was assisting the Williams crew by driving a pickup truckwhich 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 whichwas 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 themanner of electrocution. Mr. Griffith had electrical burn marks on both hands,and there were apparentlycorrespondending burn marks on the conductor. Inaddition,Mr. Griffithhad burn marks onboth 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. Griffith, 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 exercisereas0nabl.ecareand totake 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 I1peculiarriskffof physical harm to individuals unless special precautionswere taken. Plaintiffssought 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 MPCfsproposed pre-trial order, it summarized its contentions: [tlhe sole cause of Mr. Griffithfstragic accident was his inexplicable conduct inpulling theconductortohim, placing his hands on it,whilehis kneeswere against the steel bridge rail,and continuingtopull the wire to the point that it contacted the energized southphase. Mr. Griffithfsconduct violated the work rules agreed upon by theWilliams 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 HealthReview Committee conducted a detailed investigation and concluded that there were no OSHA violations and that the sole cause of the incidentwas the flunforeseeable and idiosyncraticbehavior1'of Mr. Griffith. MPC concluded thatMr. Griffith's own negligencebarred

or reduced any recovery for damages. Priorto trial plaintiffsmoved theDistrict Court toprohibit 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 toprohibit any referenceto theAm'sfindings, 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 certainOSHA standards.theCourt will allow the introduction of evidence of the OSHA hearinus. (Emphasisadded.) 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 anyviolations 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 toOSHA a number of times. MPC also submitteda number of instructions with regard toOSHA regulations. At the conclusion of the trial the jury returned averdict forMPC. Plaintiffsthenmoved for a new trial. Themotionwas granted and MPC appeals. Did theDistrict Court err ingranting 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. Stanhopev. Lawrence (Mont. 1989), 787 P.2d 1226, 47 St.Rep. 438. On appeal, MPC contends that the jury could not have understood this casewithout referenceto OSHA sinceOSHA provides the standard of care the linemen should use in this case. MPC maintains that since violations of safety standards are evidence ofnegligence,then compliancewith the safetystandard isevidence of no negligence. It contends the District Court did not err in admitting theOSHA evidence or in subsequently instructingthe jury

on OSHA standards. Plaintiffs contend that under the court's ruling, as reemphasizeda number of times in the course of conferencesbetween counsel and the court, plaintiffsvconduct was severely limited. In substanceplaintiffs arguetheywereprohibited fromquestioning 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 referenceto 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 agreewith theDistrict Courtfsconclusionthat therewas 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 tocomply with applicableprovisionsasestablished by theOccupational Safety & Health Administration (OSHA) and applicable provisions of the NESC. If you were to findthat heviolated an applicable provision of theOSHA standards,youwould consider that tobe 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: Therequirements oftheOccupational Safety 61 Health Act apply to Williams Construction Co., Inc. and itsemployees, 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, Defendantwould 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'counselobjectedtothis line ofquestioning, arguing that it should not be allowed given the Court's ruling on theMotion in Limine. The Court overruled the objectionand later issued instructionsas 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 therewas no abuse of discretion. The effect of the court's rulings, including instructions,was to deny theplaintiffs an opportunity topresent any evidence of OSHA violationsbyMPC or

### by Williams for whichMPC 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,wemake the following comments. Under Runkle v. BurlingtonNorthern (1980), 188 Mont. 286, 303-4, 613 P.2d 982, 992-93, and similar cases, it would appear that evidence of the OSHA regulationsand direct evidence of thebreach of the same or compliance with the regulations, would be admissible. Affirmed.

We Concur: 

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# .'chiefJustice

Justices

Justice Diane G. Barz did not participate.