No. 85-251

INTHE SUPREME COURTOF THE STATEOFMONTANA
1988

TERRYHAWTHORNEMARTEL, Plaintiffand Appellant,-vsMONTANA POWER COMPANY, Defendantand Respondent,

APPEAL FROM: District Courtof the Fifth JudicialDistrict, In and for the County of~efferson, TheHonorable FrankDavis,Judgepresiding.
COUNSEL OF RECORD:
ForAppellant:

R. Keith Strong argued; Church, Harris, Johnson & Williams,Great Falls,Montana For Respondent:
LonT. Holden argued and CurtisG. Thompsonargued, Great Falls,Montana
ForAmicus Curiae: Eric Thueson, (For RowanOgden),Helena,Montana

Submitted: January 19, 1988 Decided: March 10, 1988 Filed:

### MAR101988Mr. Justice William E. Hunt, Sr., delivered the Opinion of the Court.

Plaintiff Martel appeals the jury's special verdict finding the defendant Montana Power Company (MPC) 25% negligent; himself 

### 75% negligent; and settinghis damages at $290,000. He also appeals the order denyinghismotion for a
new trial. We affirm in part, reverse in part and remand with instructions. The following issueswere raised on appeal: 1. Did the trial court errwhen itdeclined to instruct the jury that contributory negligence is not a defense to willful andwantonmisconduct? 2. Did the trial court destroy the protection of the National Electrical SafetyCode (NESC)when it: a) gave only one instruction on the NESC and refused several others on specific NESC provisions? b) instructed the jury that comparative negligencewas a defenseunder these circumstances? c) failed to instruct the jury that the NESC was only

aminimum standard? 3. Did the trial court err when it refused to tell the jury the effect of comparative negligence on its verdict? 4. Did the trial court err when it allowed into evidence an interpretation of a construction standard which MPC did not have and had not used for design until the time of trial, and which had been received from its counsel just before trial? 5. Did the trial court err in allowing MPC to use the expert testimonyof an employee involvedwith the suitmonths before trial, but identified only seven days before trial,when another expert had been identified as the power company's primary expert and when appellant declined tomake

use of a continuance the trial court offeredhim? 6. Did the trial court err in grantingMPC's motion to dismiss appellant's claim chargingMPCwithmisrepresentation and bad faith under both the common law and the Unfair Trade Practices Act for its method of investigating and adjusting this accident? On July 7, 1979, Terry Martel suffered permanent injuries as a result of being electrocuted when someportion of his body came within 

### a few inches of an electric power transmission line carrying 100,000 volts. Martel testified that he had twobeers with friends after they arrived at the old Piedmont Substation south of Whitehall,Montana. Martel

was 19 at the time of the accident. The substation sits at the end of a shortroad off a county roadway. After one other person climbed the tower, Martel also climbed it. A dispute in the facts exists as to whether Martel reached out to the line but the evidence is clear he did not touch the line. In any event, his proximity to the line caused electricity from the line to arch to his body causing serious injury. The substation has a tower which supports the transmission line. The tower is crossed with metal brackets and sitson top of a concrete footing sunk in the ground. To climb itonemust take a step from the ground to the footing, then to a bracket 17" from the concrete footing, then to another bracket 2' 3/4" above, then to a bolt step 4' 6 1/4" above that. Beyond that is a seriesofbolt steps leading to the top of the tower. No barricades surrounded the tower. A wooden sign was near the tower. The sign had been painted over but the word "danger"was still visible.The Milwaukee Road built the substation prior to 1920 and MPC acquired it in 1974. MPC employees drove by the tower site at least once a month to examine the site. One employee and theWhitehall town marshal Rand McLester offered testimony that neither had ever seen children or any other unauthorizedpeople on the tower. Issue 1. Did the trial court err when it refused an instruction that contributory negligence is not a defense to willful or wanton misconduct?

Near the end of the plaintiff's case-in-chief the trial court ruled that plaintiff established a prima facie case of willful or wanton misconduct on the part of defendant power company. Although the court instructed the jury that they could find that MPC had acted willfully or wantonly, the court refused plaintiff's proposed instruction that comparative negligence was not an issue if they found the defendant had acted willfully or wantonly. The trial court correctlyrefused this instruction. We said in Derenberger v. Lutey (Mont. 1983)

## , 674 P.2d 485,487-88, 40 St.Rep. 902, 906,that comparative negligence is inapplicable when the action is based on willful and wanton misconduct. In that case, we made a distinction between conduct that is willful and wanton and conduct that ismerely negligent. When thedefendant's conduct iswillful and wanton, the plaintiff's ownmere negligence could not be used to offset his recovery. We now conclude that this distinction is faulty and expressly overrule Derenberqer. Prior to the enactment of comparative negligence, the rule preventing comparison ofwillful and wanton conduct and

mere negligence served to ameliorate the harshness of the defense 

### of contributory negligence which would bar all recovery to theplaintiff. Fortunately,we now operate under

a scheme of comparative negligence where there is no dangerof a plaintiff's slight negligence barring all recovery against a willful and wanton or grossly negligentdefendant. See § 27-1-702,MCA as enacted in 1975 and amended in 1983. The rationale for the rule in Derenberger no longer exists. It is more appropriate, then, as Justice Gulbrandson pointed out in his concurring and dissenting opinion in Derenberger,to adopt the interpretationfrom the statewhere

our comparative negligence statute originated. TheWisconsin Supreme Court ruled that negligence in all its forms, gross, willful andwanton or ordinary, can be compared to and offset by each other under its comparative negligence statute. Bielski v. Schulze (Wis. 1962), 114N.W.2d 105, 111-114. In 1975, Montana adopted the Wisconsin statute. We hold, therefore, that all forms of conduct amounting to negligence in any form includingbut not limited to ordinary negligence, gross negligence, willful negligence, wanton misconduct, reckless conduct, and heedless conduct, are to be compared with any conduct that falls short of conduct intended to

cause injury or damage. The trial court is affirmed on this issue. Issue 2. Did the trial courtdestroy the protectionsof the NESCwhen it: a) gave only one instruction on the NESC and refused severalotherson specificNESC provisions? b) instructed the jury that comparative negligencewas adefense under these circumstances? c) failed to instruct the jury that theNESC was only a minimum standard? Appellant Martel argues that failure to give the comparativenegligence instructionaswell as failure to give several other instructions regarding specificNESC provisions resulted in destroying the protections provided by theNESC. We agree with appellant's position that plaintiff'sinstructions no. 14 and 15 should have been given and, further, that the jury should have been instructed that the NESCwas only aminimum standard. However,we agree with the trial court that the jury should have been instructed on comparative negligence as a defense under these circumstances. 2a. Since 1917,the legislaturehas incorporated theNESC in

one form or another into the Montana statutes and requires utilities inMontana to construct, installandmaintain lines and equipment so as to reduce hazards to life as far as practicable. Section 69-4-201, MCA. A look at previous versions of § 69-4-201 shows the legislature has also used the terms "future construction" since 1917. Since then the NESC has addressed the areas of electrical regulation involved in this case. Utilities, including MPC have understood it to be their duty to follow these standards. MPC witnesses testified they understood that a violation of these standards is contrary toMontana law. Martel argues that NESC construction standards apply to this case and are controlling. MPC did not build the particular tower in question. However, its engineers testified that when MPC buys a facility,orwhen it contracts with someone else to build a facility for them, MPC has a duty to inspect to see that the facility complies with the NESC. Appellant's argument is correct. Appellant claims that plaintiff's instructions no. 12, 13, 14and 15were wrongly denied and that theprotections of the NESC were thereby destroyed. Instructionsno. 12 and 13

were the 1973 NESC version and differed slightly from instructionsno. 14and 15,the 1977 NESCversion. Plaintiff's proposed instructions no. 14 and 15 stated as follows:No. 14. The Montana Power Companymust complywith the National Electrical Safety Code in its construction. Portions of the National Electrical Safety Code readsas follows:
"211. InstallationandMaintenance All electric supply and communication lines and equipment supply and communication lines and. equipment shall be installed and maintained so as to reduce hazards to life as far as is practical.
214. Inspection and Tests of Lines and Equipment 

### A. When In Service.
1. Initial Compliance with Rules Lines and equipment shall comply with these safety ruleswhenplaced in service.
2. Inspection Lines and equipment shall be inspected from time to time at such intervals as experience has showntobe necessary. 

### 3. Tests When considered necessary, lines and equipment shall be subjected to practical tests to determine requiredmaintenance.
4. Record ofDefects Any defects affecting compliance with this code revealed by inspection or tests, if not promptly corrected, shall be recorded; such records shall be maintained until the defects are corrected.
5. Remedying Defects Lines and equipment known to be defective so as to endanger life or property shall be promptly repaired,disconnected, or isolated."
Ifyou find that the Montana Power Company did not install or maintain this tower in compliance with the sectionsof theNational Electrical Safety Code quoted above, then you must find that the Montana Power Companywas negligent.No. 15. The Montana Power Company must make its construction projects comply with the National Electrical SafetyCode.


### A portion of the National Electrical Safety Code reads:
"280. Structures for Overhead Lines 

### A. Supporting Structures 1. Protectionof Structures 

### b. Climbing Readily climbable supporting structures such as closely latticed poles or towers, including those attached to bridges, carrying open supply conductors energized at more than 303 volts, brhich are adjacent to roads, regularly travelled pedestrian thoroughfares, or places where persons frequently gather

(such as schools or public playgrounds) shall be equipped with barriers to inhibit climbing by unqualified persons or posted with appropriatewa.rningsigns.
2. Steps Stepspermanently installed on supporting structures shall not be closer than 8 feet from the ground or other accessible surface." 

### If you find that the Montana Power Company's constructi.ondid not meet the requirements of the National Electrical SafetyCode setoutabove, then you must find tha.t the Montana Power Company was negligent as amatter of law.
MPC1sengineers testified thatthese provisionsweredesigned to protect anyone around the towers regardless of age or authorization. MPC contends that proposed instructions no. 12 and 14

were correctly refused because they state that I1[T]he MPC must comply with the National Electrical Safety Code in its construction1'and such statements are not applicable sinceMPC did not construct the tower. Also, respondent disputes these instructions claiming the jury may find respondent negligent if it violated certain NESC sections whereas the instructionstated itmust so find. The manner in which the footing, braces and channel irons were configured to provide access to the bolt ladder that led to the top of the tower is amatter of construction and design standards,as is thematter of installing barriers around towers or signs. The standards of theNESC shouldnot be limited to anarrow meaning of the word "construction" but should imply an obligation to comply with the standards in the broader sense of "design"as well. Although MPC did not initially construct the tower it must still bring its "design" within the NESC standards. This duty may also include elementsofmaintenance. We held in Barmeyer v. Montana Power Co. (Mont. 1983), 657 P.2d 594, 40 St.Rep. 23, that through $ 69-4-201,MCA, the legislature incorporated only the NESC construction standards. Therefore violations of nonconstruction NESC standards were merely evidence of negligence and not negligence as a matter of law. 657 P.2d at 602-03. Upon reflection,this seems an overly narrow interpretationof the statute. One of the purposes of the NESC is to ensure the safeness of electrical systems that have life-threatening capabilities. If a utility can avoid complying with these standardsby purchasing constructed lines and towers instead of constructing them itself, the NESC becomes ineffectual. It is unlikely that the legislature intended such a result when it incorporated the NESC into 

### S 69-4-201,MCA. We have recognized that a violation of statutes intended to protect the public is negligence per se. Stepanek v. Kober Const.

(Mont. 1981), 625 P.2d 51, 55, 38 St.Rep. 385, 391. We therefore overrule Barmeyer and hold that violations ofmaintenance and design standards intended to protect the public are also negligence per se. However, to be complete the trial court should inform the jury that in this action a violation of law is of no consequence unless it contributed

as a proximate cause to an injury found by the jury to have been sufferedby theplaintiff. We hold that plaintiff's instructions no. 14 and 15 properly may be given upon retrial after a modification to show that MPC must comply with the construction, maintenance and design standards of the NESC. We further hold that plaintiff's proposed instructions no. 12 and 13 were correctly refused since they quoted the 1973 version of the NESC and thereforewere not applicable law at the time of the accident in 1979.

Issue 2b is whether the protections of the NESC were destroyed when the trial court allowed the jury to consider the comparative negligence of the plaintiff even after a prima facie case ofwillful andwanton conduct on thepart of the defendant had been demonstrated by the plaintiff. This issue is resolved by the holding in issue 1 and need not be addressed further.

Finally appel-lantcontends that denial of plaintiff's instruction no. 16 further destroyed NESC protections. The instructionreads: The National Electrical Safety Code is a minimum standard only. Youmay find that the Montana Power Company was negligent as defined in these instructions even if you find that the Montana Power Company fully complied with all the provisions of the National Electrical Safety Code in evidence in this case.In keeping with our holding that a violation of these NESC standards is negligence per se we further note that bare compliance with a statute such as S 69-4-201,MCA, does not necessarily establish due care. If the circumstances are such that a danger exists beyond the minimum which this statutewas designed to meet, then the jury may be informed that a defendant is negligent for not doing more. For this reason plaintiff's proposed instruction no. 16 should not have been refusedby the court. Issue 3. Was it error for the trial court to refuse to tell the jury the effect of comparative ilegligence on the verdict?

We hold that it was error. The applicable statute, S 27-1-702, MCA (1978),provides that a plaintiff may recover damages for injury if the plaintiff's "negligence was not greater than the negligence of the person against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of negligence attributable to the person recovering." The purpose of this statute is to remove the harsh treatment of contributory negligenceon thepart ofplaintiff under the old scheme that prevented any recovery for any negligence of the plaintiff. MPC argues that the scale may have gone too far the other way, and juries informed of the legal effect of comparative negligence are overly generous to the negligent plaintiff. It argues that the jury's determination of damages will reflect the jury's sympathies for the plaintiff's injuries rather than reflect its computation of actual damages sustained and offset by the plaintiff's own negligence. In opposition, Martel argues that juries, not informed 

### of the legal effect of their apportionment of negligence, operate inthedark. This,he argues, makes it impossibletotell whether the amount of damages awarded is based on the jury's determination of actual damages or whether it is infected with speculation about the effect of its apportionment of negligence. We have held that the jury can objectively consider the facts before it. Owensv. Parker Drilling Co. (Mont. 1984), 676 P.2d 162, 166, 41 St.Rep. 66, 71. In fact, we have refused to order anew trialbased upon the reasons defendant gives. InNorth v. Bunday (Mont. 1987), 735 P.2d 270, 277, 

### 44 St.Rep. 627, 636, we expressly recognized the integrityof the jury in determining negligence percentages when we stated: We cannot impugn the integrity of the jury that it indulged in that kind ofmanipulation. The single duty of the jury in this casewas to determine the applicable percentages of negligence, if such negligenceexisted. We cannot order a new trial in this case upon the mere speculation that if the jury could foresee the precise effect of their factual determination,even thoughnot called on to determine damages, their factual determination would be different fromwhat they decided.

We are persuaded by appellant's argument that the jury speculated about the effect of itspercentage determinations. During deliberations the jury sent a note to the judge, "Do thepercentages inquestion #4 apply to monetary compensation in question #5?" The judge answered, "Dear Folks: Youmust answer each question separatelyby 8or more ofyour number." We think Montana juries can and should be trusted with the information about the consequences of their verdict. Other jurisdictions have considered this question and have

come to differing conclusions. An excellant review of the holdings in those jurisdictions is set forth in the Idaho

case of Seppi

### v. Betty (Idaho 1978), 579 P.2d 683. After a lengthydiscussion, the IdahoSupreme Court concluded that itis naive to believe that jurors do not speculate about the effect of their answers. To end speculation, the Idaho court said juries should be informed of the effect of their

answers. Seppi, 579 P.2d at 691. The Idaho court tempered its position by giving the trial court the discretion not to inform the jury in those cases where the issues are so complex or uncertain that the jury would only be confused. Seppi, 579 P.2d at 692. We adopt the reasoning of the Idaho Supreme Court and hold that under the circumstances of this case the jury shouldhavebeen informed of the effectof its verdict. Upon the request of a party, the courtmust give this instruction unless it finds the issue so complex as to confuse the jury. Issue 4. Did the trial court err when it allowed into evidence an interpretation of a construction standard which MPC did not have and had not used for design until the time of trialand had received from its counsel just before trial? Since we are remanding the case we will discuss this issueonly for purposes of guidance upon remand. Much of the trial focused on whether the tower was "readily climbable," or "closely latticed" as those terms appeared in the 1973and 1977 NESC, S 280. The trial court allowed into evidence a copy of a 1984 interpretation of those terms written by the Institute of Electrics and Electronic Engineers in response to a request by an entity having difficulty applying those terms to a tower built in 1911. The interpretationwas, as yet, unpublished and undistributed and MPC1scounsel seemed to be the only one in possessionof the interpretation. Appellant claims that this exhibit was totally irrelevant under Rule 401, M.R.Evid. and if admitted, any probative value would be outweighed by the danger of unfair prejudice and confuse and mislead the jury under Rule 403,We hold it was error to admit the 1984 280 interpretation into evidence as a construction standardwhich b4PC did not have and had not used for design until the time of trial, and which had been received from its counsel just before trial. At a new trial, the interpretation can be admitted upon the laying of aproper foundation. Issue 5. Did the trial courterr in allowingMPC touse the expert testimony of its employee Pat Rice who was involvedwith the suit months before trial butwas identified only seven days hefore trial, when another expert had been identified as the power company's primary expert and when appellanthad declined tomake use of a continuance the trial courthad offered him? This issue is moot and need not be discussed further. Issue 6. Did the trial court err in granting MPC's motion to dismiss Martel's claim charging MPC with misrepresentationand bad faithunderboth the common lawand the Unfair Trade PracticesAct? The trial court dismissed Count I1of appellant's second amended complaint for failure to state a claim. Count I1 alleges that MPC, through its insurance adjuster,was liable for negligent and fraudulent misrepresentation; breach of defendant's common law duty to act in good faith and fair dealing with appellant; and violation of the Unfair Trade Practices Act because, as a company self-insured up to $500,000of its losses,its adjuster's actionswere tortious, malicious, oppressiveand unjustified. Appellant claims that the adjuster presented himself as
an investigator for the Public Service Commission (PSC) and thathewas a state official onofficialbusiness. He claims most of the informationgainedwas not transmitted to the PSC but rather retained in MPC's files. Furthermore, the adjuster questioned appellant's parents at the site of the accident and his friends and relatives as they sat outsidethe emergency room. Appellant contends this amounts to a tort in and of itself. In addition, appellantargues that the trial courterred first by not assuming the facts alleged in the complaint to be true for purposes of amotion to dismiss. Rule 12(b)(6), M.R.Civ.P. Secondly, the court essentially rendered summary judgment for the defendantby assuming certain facts would be proved. Appellant contends that this, along with not informing the parties tha.tthe court is treating the motion

as one for summary judgment,is error under Gebhardtv. D. A. Davidson & Co. (1983), 203Mont. 384, 389, 661P.2d 855, 857. Appellant further contends the substantive law is also in his favor. He alleges the adjuster's activities were performed in accordancewith deliberate corporatepolicy and performed by a skilled, experienced and trained agent and appellantwas harmed by these actions. The situation is also aggravated because the same agent working for MPC allegedly investigatesand adjusts for MPC's excess insurance carrier. The latter portion of Count I1 alleged MPC was liable under S 33-18-201, MCA, because that section of the Unfair Trade Practices Act provides a right of action to injured third persons. Klaudt v. Flink (1983), 202 Mont. 247, 252, 658 P.2d 1065, 1067. In opposition, respondent argues MPC
was under a legal obligation to investigate the accident and report to the PSC. Section 69-3-107(2), MCA. MPC claims Count I1 did not allege the adjuster misrepresented his employment nor did it contain allegation of any duty owed by MPC whichwasbreached and consists ofunsupported conclusory statements. They argue dismissalwas correctly based on the failure to statea claim. This Court recently held in Ogden v. Montana Power Co. (Mont. 1987), 747 P.2d 201, 44 St.Rep. 2068, that a self-insured electric utility which is primarily in thebusiness ofproviding power to customerswas not,at the time ofMartel's accident, regulatedby the Unfair Trade Practices Act, 

### 5 33-18-101, et seq. MCA (1985). The Act only covered those in thebusiness of insurance. Therefore,the appellant

can state no claim against MPC based on this act. Nor may appellant state a claim based on a common law duty to investigate claims and to attempt in good faith to make prompt and fair settlements where liability is reasonably clear. Ogden, 747 P.2d at 205. The trial court correctly dismissed Count I1 of appellant's second amended complaint. /' We affirm in part, reverse in

Justice b We Concur: 

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