No. 89-482 IN THE SUPREME COURT OF THE STATE OF MONTANA 1990

SPENCER SIZEMORE, Plaintiff & Respondent,

THE MONTANA POWER COMPANY; and DOE I and KEITH KESSEL, individual, and d/b/a KESSEL CONSTRUCTION COMPANY; and KESSEL CONSTRUCTION COMPANY; and DOE 11, Defendants and Appellants.

APPEAL FROM: DistrictCourtof theSeventeenthJudicialDistrict, In and for the County of Blaine, The Honorable Leonard Langen, Judge presiding.

COUNSEL OF RECORD: For Appellant: Brian Lilletvedt; Bosch, Kuhr, Dugdale, Martin & Kaze; Havre, Montana 

### For Respondent: Morton B. Goldstein; Goldstein Law Firm; Havre, Montana Amicus: Ira Eakin; Lynaugh, Fitzgerald, Eiselein & Eakin; Billings, Montana (MontanaTrial Lawyers'Assn.) Gary L. Graham; Garlington, Lohn & Robinson; Missoula, Montana (Montana Defense Trial Lawyers, Inc.) Submitted: October 25, 1990

Filed: ~ecided: December 13, 1990

(iJustice R. C. McDonough delivered the Opinion of the Court. Defendant, Montana Power Company (MPC)

### , appeals from a jury verdict of the Seventeenth Judicial District, Blaine County. The jury awarded plaintiff, Spencer Sizemore (Sizemore),damages for injuries sustainedwhen an I-beamhewas holding came into contact with a high voltage power line owned by MPC. The jury found that 15% of Sizemore's injurieswas attributable tohis own negligence, 20% was attributable to his co-worker,Keith Kessel (Kessel),and 65%was attributable to the negligence of MPC. We affirm. We rephrase the issues as follows: 1)Whether theDistrict Court erredwhen it allowed Sizemore's expert witness to testify concerning sectionsof the 1977 ~ational Electric Safety Code (NESC); 2) Whether the DistrictCourt erred when it ruled as a matter of law that the minimum height requirement set forth in the 1984 edition of theNESC did not apply to this case; 3) Whether the District Court erred when it refused MPC1s proposed jury instructions 15, 15A and 15B; 4) Whether the negligence of Sizemore, and his co-worker Kessel, was a superseding, intervening event which severed all liability on the part of MPC; 5) Whether the evidence was insufficient to support the jury's conclusion that MPC was responsible for sixty-fivepercent of Sizemore1sinjury. The facts are simple. On September 8, 1984, Spencer Sizemore gratuitously agreed to help Keith Kessel move some steel I-beams. 2Kessel is the owner of Kessel Construction Company. The company constructs concretebuildings, steel buildings and grain bins. It operates out of the Kessel Construction Yard in Blaine County. On the day of the accident Sizemore and Kessel went to the Kessel Construction Yard, where the I-beams were located. They planned to move the beams with a boom truck. Kessel and Sizemore moved somewooden stubs to the area where they planned tomove the beams so that they could set thebeams on the stubs. After setting the stubs in place, Sizemore guided Kessel as he backed the boom truck up to the beams and they hooked up the load. As they hooked an I-beam to the boom truck, Sizemore and Kessel discussed safety. Particularly, they talked about the need to avoid powerlines that ran across and above the Kessel Construction Yard. After hooking a beam to the boom truck, Kessel began to back up with the load. While backing up, the boom hit one of the powerlines and Sizemore, who was holding on to the beam, received

an electrical shock. As a result of the shock, Sizemore received burns tohis left leg and righthand. Hewashospitalized in Havre and Missoula, wherehehad surgeryto remove the ring fingeron his right hand and repair damage to his left leg. On November 28, 1986,Sizemore filed a complaint againstboth MPC and Keith Kessel, individually and d/b/a Kessel Construction Company. In his complaint, Sizemore alleged that he suffered permanent injuriesas a resultof the accident. He furtheralleged that MPC negligently placed the power line in such a manner as togrossly and recklessly endanger his life. He also alleged that Kessel negligently operated the boom truck by backing it into the powerline. MPC answered Sizemorels complaint and generally denied his allegations as to the cause of his injuries. MPC maintained that Sizemorels injuries were caused by his own negligence. It therefore filed a motion for summary judgment contending that Sizemorels injuries were causedby the superseding and intervening negligent acts of Kessel and Sizemore. This motion was denied. At trial the jury found that 15% of Sizemorels injuries was attributable to his own negligence, 20% of his injuries was attributable to Kesselgsnegligence and the remaining 65% was attributable to the negligence of MPC. MPC filed its motion for judgment notwithstanding the verdict or in the alternative for a

new trial. These motions were denied and MPC filed this appeal. Issue I MPC argues that the trial court erred when it allowed Sizemorels expert witness, Robert Leo, to testify concerning certain safety standards contained in the 1977 edition of the National Electric Safety Code (NESC). These standards set forth height requirements for powerlines. According to MPC, the 1984 edition of the NESC should have been used because Sizemore's injury occurred in 1984. It argues that the trial court erred 

### in allowing Mr. Leo to refer to the older 1977 version during his testimony. We need not delve into the merits of MPC1sargument. AsSizemore points out, MPC failed to object to this testimony. Without a proper objection,MPC failed to preserve possible error for purposes of appeal. Matter of B.L.O. (1984), 213 Mont. 164, 689 P.2d 1246. Accordingly, we decline to address this issue or to find reversible error on thepart of the District Court. Issue I1 MPC argues that the NESC provides that a power company need only elevate itspower lines twenty feet above the ground in areas such as theKessel ConstructionYard. It supports this contention through reference to section 232 of theNESC, which indicates that the minimum height requirement for powerlines similar to the one involved in this case is 20 feet. Apparently, in cross examining Mr. Leo, counsel for MPC attempted to insinuate that this 20 foot standard was the height required by the NESC. Upon objection, the trial court ruled that such questioning misrepresented Mr. Leo's former testimony. Thetrial courtpointed out that this 20 foot figure was modified by a footnote which explained that the figurewas based upon vehicle operating heights of less than 14 feet. Therefore, ifvehicles,with maximumheights of 14 feet operated under powerlines, the codemandated a minimum height of 20 feet. If vehicleshigher than 14 feet operated in the

area however, the lines must be at least six feet higher than the maximum operating height of the vehicles. Based upon this interpretation of the NESC, the trial court sustained Sizemore's objection and forbid MPC1scounsel from asking what it considered misleading questions.We have reviewed section 232 of the NESC. Obviously, this section was intended to require power companies to provide lines at least six feet higher than the maximum height of vehicles passing underneath. This conclusion comports with Mr. Leo's testimony. We thereforehold that the trial courtls ruling on this issuewas a correct interpretation of both Mr. Leo's testimony and the standards contained in the NESC. Issue I11 Throughout trial and on appeal,MPChas argued that Sizemore's and Kessel's negligence was an unforeseeable event. Itmaintains that because this event was unforeseeable, it should be regarded

as a superseding, intervening event which cuts off all legal liability on the part of MPC. See Kitchen Krafters v. Eastside Bank of Montana (1990), 47 St.Rep. 602, 789 P.2d 567. In order to emphasize this theory MPC submitted several instructions to the District Court for presentation to the jury. These instructions stated: PROPOSED INSTRUCTIONNO. 15 If you findtheDefendantKeith KesselIs conductwas the operative conduct or superseding cause which intervened as the proximate cause of Spencer Sizemore's injuries,youmust returnyourverdict for the Defendant Montana Power Company. PROPOSED INSTRUCTIONNO. 15-A If an act of negligence subsequent to the first act of negligence was of such a character as not reasonably to be expected to happen in the natural sequence of events, such later act of negligence is the independent, intervening cause and, therefore, the sole proximate cause of the injury. PROPOSED INSTRUCTIONNO. 15-BWhere one has negligently caused a condition of danger, he is not relieved of responsibility for damage causedtoanothermerely because the injury also involved the latermisconduct of someoneelse, if that conductwas reasonably foreseeable. The District Court rejected these instructions. It rejected Instruction 15because it felt that its languagewould confuse the jury. The lower court stated its belief that the wording of the instructionwas inconsistentwithMontana's comparative negligence law. MPC, on the other hand, argues the instruction is an accurate statement of Montana law. Itpoints out that its language is taken directly out of a decision renderedby this Court in 1986. Dvorak

v. Matador Service Inc. (1986),223 Mont. 98, 727 P.2d 1306. In Dvorak,theplaintiff sued for injuries incurredwhen his employer ordered him to enter a tank which had previously contained poisonous chemicals. The tank car was owned by Matador Service Inc. We held that the employer's grossly negligent conduct was the I'operative causew or superseding force of Dvorak's injuries. Dvorak, 727 P.2d at 1310. Based upon this conclusionwe held that Dvorak could not establishproximate cause and therefore affirmed the lower court's order of summary judgment. Recently this Court has expanded and modified the law of proximate cause. This trend began in the seminal case of Young v. Flathead County (1988), 232 Mont. 274, 757 P.2d 772, and has continued through our decisions in Kitchen Krafters Inc. 

### v. Eastsi.deBank of Montana (1990), 47 St. Rep. 602,789 P.2d 567;and Thayer

### v. Hicks (1990), 47 

### St. Rep. 1082, 793 P.2d 784. In each 7of these cases we have set forth the rule thatproximate causehas its basis in foreseeability. See Kitchen Krafters, 789 P.2d at 575. The language fromDvorak, upon which Instruction 15 isbased, does not incorporate the doctrine of foreseeability and its relationship to proximate cause as set forth in Young and its progeny. Moreover, the language I1operativeconduct or superseding

causew indicates that Sizemore's accident may have had only one

cause. Such a connotation is inconsistent with the law concerning comparative negligence. Given these facts, we hold that the instruction is faulty and the District Court could properly refuse its submission to the jury. Similarly, Instruction 15-A was properly refused. This instruction is based upon Halsey v. Uithof (1975), 166 Mont. 319, 532 P.2d 686. Halsev was decided before Montana adopted comparative negligence. Before this law was adopted a plaintiff couldnot recover if hewaspartially responsible forhis injuries. Many of the older cases decided under this scheme of liability often denied such plaintiffs recovery on the grounds that their negligencewas the sole or proximate cause of their damages. Such language is no longer applicable, however. Under comparative negligence aplaintiff can recover even thoughtheaccident causing his injuries is caused by more than one actor, including himself. The language of Instruction 15-Adoesnot adequately set forth this concept. The instruction is also covered by other approved instructions. We hold the instructionwas properly denied.The lower court also denied Instruction 15-B, obviously holding that it was adequately covered by other instructions already approved. Instruction 15-B deals with foreseeability. In order to incorporate foreseeability into the instructions given to the jury, the District Court utilized a modified version of the standard proximate cause instruction, which was used at the time trial. InstructionNo. 13 submitted to the jury states: The proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by an unforeseeable, new and independent cause, produces the injury, and without which it would not have occurred. (Addedwords underlined.) This instruction when read in conjunction with others, adequately sets forth the concept of foreseeability and its applicationtoproximate causation. The concept of foreseeability

was set forth to the jury through InstructionNo. 13, instructions

on negligence,proximate cause, and the duty of thepower company. Also, itwas discussed in closing argumentsgiven by counsel. The lower court's refusal to submit Instruction 15-B to the jury does not constitute reversible error. In light of instructions given regarding negligenceand comparativenegligence, itwas redundant. Furthermore, the instruction is confusing, especially by the use of the word llinvolvedll and the word llconduct.ll However,as an aside,we note that this instruction (15-B)has merit in theuse of theword "reasonablyt1 (the lack of which isnot reversibleerror) asan adverb before theword Ilfore~eeable.~~ This addition would help explain the concepts of ordinarily prudent person and natural and probable consequences in setting forth theissue of foreseeability in an instruction applicable to the appropriate case. These concepts were included in an instruction recently set forth in Kitchen Krafters v. Eastside Bank of Montana

(1990), 47 St.Rep. 602, 689 P.2d 567. Issue IV MPC maintains that the District Court erred when it denied MPCns motion for summary judgment,motion fordirected verdict and motion for judgment notwithstanding the verdict. It bases this argument on itsbelief thatKesselnsand Sizemorens negligence was unforeseeable, and that therefore Sizemore cannot establish proximate cause. In support of its contentions,MPC cites a number of cases decided by this Court. Most of these cases arose before the legislature passed Montananscomparative negligence statute. See e.g. Halsey 

### v. Uithof (1975), 166 Mont. 319, 532 P.2d 686; Sprankle v. DeCock

(1974), 165 Mont. 274, 530 P.2d 457; Turley v. Montana Power Company (1975), 167 Mont. 39, 534 P.2d 1254. Many of these decisions contain language concerning causation which, although relevant in a contributory negligence context, is no longer applicable under our comparative negligence scheme. For this reason,MPCnsreliance upon these cases is misplaced. However,MPC also relies upon Dvorakv. Matador Services Inc. (1986), 223 Mont. 98, 727 P.2d 1306, which arose after the comparativenegligence statute was enacted. Admittedly,this case lends some support toMPC1s arguments. Since Dvorakwas decided, however,we have issued a number of opinions which render much ofits language obsolete. As stated earlier, this Court has sought in recent decisions, to clarify the doctrine of proximate cause. Therefore,we relyupon these decisions in formulating theholding in the case now before us. The doctrine of proximate cause has been developed in an effort to prevent unlimited liability. As observed in a recent

case 'Ithe consequences of a wrongful act can extend in time for years--perhaps [even] beyond the defendant's lifetime." Kitchen Krafters Inc 

### v. Eastside Bank of Montana (1990),47 St.Rep. 602, 789 P.2d 567. In recognitionof this fact,the courts have sought to devise a means to cut off a defendant's liability when principles of equity and common sensedemand sucha result. By far themost commonmethod of achieving this end is through resort to the foreseeabilityanalysis. Thismethod of analysis requiresa trier of fact to determine whether the consequences of a defendant's actions were reasonably foreseeable. Ifa plaintiff's damageswere reasonably foreseeable to a man of ordinary prudence, liability will usually follow. However by the same token the law refuses to hold a defendant responsible for consequences which, although possible are not reasonably foreseeable, or are generally regarded as freakish, bizarre orunpredictable. Prosserand Keeton onTorts, 5th Edition 5 43 (1984). Foreseeability can be determined in one of two ways. Some courts analyze the issue under the element of duty. These courts take the view that the scope of a defendant's duty is determinedby the foreseeability of any harm which may arise as a result of his negligent conduct. See e.g. Palsgraf v. Long Island Railroad Co. (New York 1928), 162 N.E. 99, 100. Other courts have analyzed foreseeability under the issue of proximate cause. In doing so, they have taken the view that all persons owe a duty to the world at large to act reasonably in order to prevent injury to their fellow man. Palssraf, 162 N.E. at 104 (Andrews dissenting)

# . If this duty is breached, it then becomes necessary to determine whether the consequences of thebreachwere reasonably foreseeable to thedefendant. If the consequenceswere reasonably foreseeable, proximate cause is established and liability will follow. InKitchen Krafters, Inc. v. Eastside Bank of Montana (1990), 47 St.Rep. 602, 789 P.2d 567, this Court analyzed foreseeability under the doctrine of proximate cause. In the present case, MPC maintains that Sizemore1sinjuries were unforeseeable because his negligence combined with Kessel's was a superseding, intervening event. Therefore,we analyze the facts now before us under this doctrineand apply them to the lawestablished inKitchen Krafters. As stated earlier, MPC argues that the events surrounding Sizemore's accidentwere unforeseeable. They maintain that it was impossible to foresee that Kessel and Sizemore would be so completely inattentive and negligent so as to run the boom truck into the overhead powerline. They further argue that they had no way of knowing that the truckwould be operated in thevicinity of the powerline. Based upon these contentions, MPC maintains that Kessells and Sizemore1s acts were unforeseeable and thereforeproximate cause cannotbe established. Withoutproximate causeMPC cannot be held liable for any alleged negligence associated with the height of the powerline. Simply stated, the issue raised by MPC is whether the antecedent actsofnegligencecommittedby Kessel and Sizemorewere superseding, interveningeventswhich cutoff legal responsibility on the part of MPC. By definition, a superseding, intervening event is an unforeseeable event that occurs after the defendant's original act of negligence. Its presence will generally serve to cut off liability on thepart of thedefendant. KitchenKrafters, 789 P.2d at 576. It is true that sometimesan antecedent act by a third person

orby theplaintiff isunforeseeable. For example, numerous courts have held that the criminal or intentional actions of a third person may not be foreseeable. Cole v. German Savings and Loan Society (8th Cir. 1903), 124 

### F. 113. Similarly, a grossly negligent act on thepart of aplaintiffmay properly be considered unforeseeable. The case now before us, however, presents neither of these fact scenarios. Rather, the case requiresus todeterminewhether the circumstances surrounding Sizemore'saccidentwas a reasonably foreseeable consequence of MPC1s negligent placement of its powerline. We begin with the premise that '!the standard of reasonable conductmay require the defendant toprotect theplaintiff against

'thatoccasional negligencewhich is one of the ordinary incidentsof human life, and therefore to be anticipated1I1 Prosser and Keeton on Torts, 5th Edition 5 44 (1984). Based upon this rule, it isapparent that at times apower companyhas aduty tomaintain its lines in such amanner as toprevent the type of accident that occurred in this case. After a careful review of the facts,we conclude thatKessel

### 's and Sizemorelsactionswere not extraordinarily negligent. On the contrary,the boom truck's contact with the line could be a normal consequence of MPC's negligent act. It was therefore reasonably foreseeable. This conclusion is supported by testimony presented by expert witnesses at trial. Sizemore's expert testified that 85% of all electrical injuries are caused by human frailty ormistake. MPC

### 'switness acknowledged that themajority of such accidents are due to human mistakes. Given these facts, we hold that the jury could properly conclude that the intervening negligence of Kessel and Sizemore

was reasonably foreseeable and proximate cause was established. Therefore, the lower court did not err in refusing to grant MPC's motions for summary judgment, directed verdict or judgment notwithstanding theverdict. Issue

### V Finally, MPC argues that there was insufficient evidence to support the jury's conclusion that it was responsible for sixtyfive percent of Sizemore's injury. In support of this contention MPC recitesevidence which established bothKessellsand Sizemore's knowledge of the location and danger of the powerlines. Theymaintain that their negligence if any, was in failing to raise or relocate the powerlines. This act constituted mere passive negligence, as opposed to the active negligence of Kessel and Sizemore. Given these facts, the evidence does not support the jurytsapportionment of damages. Wedisagree. ThisCourtIs function inreviewing jury verdicts is necessarily very limited. We must review the evidence in a lightmost favorable to the prevailing party to determine whether substantial evidence supports the jury'sverdict. Anaconda Co. v. Whittaker (1980), 188 Mont. 66, 610 P.2d 1177. This Court cannot reweigh the evidence or disturb the findings of a jury unless that evidence is so inherently impossible or improbable as not to be entitled to belief. Reynolds v. Trbovich Inc. (1949) 

### , 123 Mont

# . 224, 210 P.2d 634. Theevidencepresented at trial established thatMPC knewthat construction activity took place at the Kessel Yard. Apparently, MPC employeeshad been at theyard approximately 100 times over the years preceding the accident. Evidence was also introduced which established that a similar incident, although with no injuries, occurred a fewmonths prior to Sizemoretsaccident. The evidence is conflicting on whether MPC was notified of the incident. However, the incident involved contact with a powerline that was connected to the same power pole that connected the powerlines involved in the Sizemoreaccident. Finally, the record shows that MPC had been at the construction yard andhad buried cablesearlier in 1984, several months before the accident.These facts rise to the level of substantial evidence needed to support the jury's apportionment of damages. As stated earlier, thisCourt is precluded from reweighing theevidence. Accordingly, the jury's verdict is affirmed.

We Concur: 

## H 

# ,pVT- Chief Justice

Justices '-.-Justice Fred J. Weber dissents as follows: My dissent focuses on Issue I11 in which the majority concludes that it was not error to refuse any of defendant's proposed Instructions 15, 15-A and 15-B. The majority concludes that the theories on the part of the defendant are adequately set forth in InstructionNo. 13 which is set forth as follows: The proximate cause of an injury is that cause which in a natural and continuous sequence, unbroken by an unforeseeable, new and independent cause, produces the injury, and without which it would not have occurred. (Addedwords underlined.) The majority concludes that Instruction No. 13 adequately sets forth the concept of foreseeability and its application to proximate causation. I suggest that the analysis of Instruction No. 13 is not consistent with Kitchen Krafters Inc. v. Eastside Bank of Montana (Mont. 1990), 789 P.2d 567, 47 St.Rep. 602. InstructionNo. 13 speaks of "Thetf proximate cause in a casewhere thereare threedifferent causestobe considered. The instruction essentially uses the Ifbutfortf approach as it states that the proximate cause is that "withoutwhich the injury would not have occurred." As pointed out in Kitchen Krafters, 789 P.2d at 574, 47 St. Rep. at 610, causation in fact is determined by the Ifbut fortf test where applicable. However, if two causes concur tobring about an event then the tfsubstantial factorft test is used. Under Kitchen Krafters, it appears that Instruction No. 13 improperly focuses on the negligence of the defendant Montana Power Company without reference to any concurring negligence. The defendant's problem with Instruction No. 13 is that itcontends there is a failure to set forth its theories on foreseeability. The general rule is stated in Kitchen Krafters, 789 P.2d at 575, 47 St.Rep. at 611, as follows: Proximate cause is normally analyzed in terms of foreseeability. Simply stated, one is only liable for consequences which are considered to be reasonably foreseeable. Prosser and Keeton at 5 43. If the consequences of one's wrongful act are not reasonably foreseeable,then it followsthat itwas not proximately caused by that act. Using this analysis, one must look forward through the chain of causation in order to determine whether the events which occurred were foreseeable. If they were, the element of proximate cause is satisfied and liabilitywill attach. In analyzing the instructions in Kitchen Krafters, the Court concluded that the instructions were inadequateand suggested that

on remand a proper instruction on proximate cause with regard to foreseeabilitywould state: In order for the defendant's negligence to be the proximate causeof theplaintiffIs injury, itmustappear fromthe factsand circumstances surroundingtheaccident thatthedefendantas an ordinarilyprudentperson,could have foreseen that the plaintiff's injury would be the natural and probable consequence of the wrongful act. The proposed instruction in Kitchen Krafters would have been much more helpful in the present case because it focuses on the aspect that the defendant as an ordinarily prudent person could have foreseen that the plaintiff's injury would have been the natural and probable consequence of thewrongful act. Instruction No. 13

as given ismuch less helpful. That is particularly true in the present case where we have

a passive condition of danger created by the defendant Montana Power Company, which is followed in time by subsequent acts of negligence on the part of both Kessell and the plaintiff. Thisraises the issue of superseding, intervening causes. The instruction is totally inadequate in articulating the concept of superseding, intervening cause. InstructionNo. 15-A as proposed by the defendantproperly emphasized that if an act of negligence, such as that of the plaintiff or Kessell, subsequent to the first act of negligence was of such a character as not reasonably to be expected to happen in the natural sequence of events, then that later act is an independent, intervening cause. I believe that instructionto be an accurate statement of the lawwhich cannotbe derived fromother instructions. Itappears tome tobe comparable to the instruction suggested in the majority opinion in Kitchen Krafters, which required the jury to determine if the defendant as

an ordinarily prudent person could have foreseen that plaintiff's injury would be the natural and probable consequence of the defendant's negligence. To restate this in accordance with the factual determination which should have been required of the jury in the present case, the jury should have been instructed in such

a manner as to require it to focus on whether or not the Montana Power Company, as an ordinarily prudent person, could have reasonably foreseenthat Kesselllsbacking into thepower line and the plaintiff's injury would be the natural and probable consequence of its failure to raise the power line above 20 feet in height. A proper instruction on this aspect was also defined by this Court in Jacobson v. State (1989), 769 P.2d 694, 698, 46 St.Rep. 207, 212,where this Court approved the following instruction:

### An intervening cause will relieve a Defendant of liabilityfornegligent acts where thecause isonewhich the Defendant could not reasonably anticipate under the circumstances. I

### conclude that there hasbeen a failure toproperly instruct the jury on the defendant's theory of the case and 

### I would therefore reverse and remand. Ic-c?