No. 85-251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1988 

TERRY HAWTHORNE MARTEL, 

Plaintiff and Appellant, 

-vsMONTANA POWER COMPANY, 

Defendant and Respondent, 

APPEAL FROM: District Court of the Fifth Judicial District, 

In and for the County of ~efferson, 

The Honorable Frank Davis, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

R. Keith Strong argued; Church, Harris, Johnson & 

Williams, Great Falls, Montana 

For Respondent : 

Lon T. Holden argued and Curtis G. Thompson argued, 

Great Falls, Montana 

For Amicus Curiae: 

Eric Thueson, (For Rowan Ogden), Helena, Montana 

Submitted : January 19, 1988 

Decided: March 10, 1988 

Filed: MAR 1 0 1988 
Mr. 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 setting his damages at 

$290,000. He also appeals the order denying his motion for a 

new trial. 

We affirm in part, reverse in part and remand with 

instructions. 

The following issues were raised on appeal: 

1. Did the trial court err when it declined to instruct 

the jury that contributory negligence is not a defense to 

willful and wanton misconduct? 

2. Did the trial court destroy the protection of the 

National Electrical Safety Code (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 negligence was 

a defense under these circumstances? 

c) failed to instruct the jury that the NESC was only 

a minimum 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 testimony of an employee involved with the suit months 

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 to make 

use of a continuance the trial court offered him? 

6. Did the trial court err in granting MPC's motion to 

dismiss appellant's claim charging MPC with misrepresentation 

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 some portion 

of his body came within a few inches of an electric power 

transmission line carrying 100,000 volts. Martel testified 

that he had two beers 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 short road 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 sits on top of a concrete footing sunk in the ground. To 

climb it one must 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 series of bolt 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 the Whitehall town marshal Rand McLester offered 

testimony that neither had ever seen children or any other 

unauthorized people 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 

correctly refused 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 

is merely negligent. When the defendant's conduct is willful 

and wanton, the plaintiff's own mere 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 of willful and wanton conduct and 

mere negligence served to ameliorate the harshness of the 

defense of contributory negligence which would bar all 

recovery to the plaintiff. Fortunately, we now operate under 

a scheme of comparative negligence where there is no danger 
of a plaintiff's slight negligence barring all recovery 

against a willful and wanton or grossly negligent defendant. 

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 interpretation from the state where 

our comparative negligence statute originated. The Wisconsin 

Supreme Court ruled that negligence in all its forms, gross, 

willful and wanton or ordinary, can be compared to and offset 

by each other under its comparative negligence statute. 

Bielski v. Schulze (Wis. 1962), 114 N.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 including but 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 court destroy the protections of 

the 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 negligence was 

a defense under these circumstances? 

c) failed to instruct the jury that the NESC was only a 

minimum standard? 

Appellant Martel argues that failure to give the 

comparative negligence instruction as well as failure to give 

several other instructions regarding specific NESC provisions 

resulted in destroying the protections provided by the NESC. 

We agree with appellant's position that plaintiff's 
instructions no. 14 and 15 should have been given and, 

further, that the jury should have been instructed that the 

NESC was only a minimum 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 legislature has incorporated the NESC in 

one form or another into the Montana statutes and requires 

utilities in Montana to construct, install and maintain 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 to Montana 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, or when 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, 14 and 15 were wrongly denied and that the protections of 

the NESC were thereby destroyed. Instructions no. 12 and 13 

were the 1973 NESC version and differed slightly from 

instructions no. 14 and 15, the 1977 NESC version. 

Plaintiff's proposed instructions no. 14 and 15 stated 

as follows: 
No. 14. The Montana Power Company must comply with 

the National Electrical Safety Code in its 

construction. Portions of the National Electrical 

Safety Code reads as follows: 

"211. Installation and Maintenance 

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 rules when placed in service. 

2. Inspection 

Lines and equipment shall be inspected from 

time to time at such intervals as experience 

has shown to be necessary. 

3. Tests 

When considered necessary, lines and equipment 

shall be subjected to practical tests to 

determine required maintenance. 

4. Record of Defects 

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." 

If you find that the Montana Power Company did 

not install or maintain this tower in compliance 

with the sections of the National Electrical Safety 

Code quoted above, then you must find that the 

Montana Power Company was negligent. 
No. 15. The Montana Power Company must make its 

construction projects comply with the National 

Electrical Safety Code. 

A portion of the National Electrical Safety 

Code reads: 

"280. Structures for Overhead Lines 

A. Supporting Structures 

1. Protection of 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 

appropriate wa.rning signs. 

2. Steps 

Steps permanently 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.on did not meet the requirements of the 

National Electrical Safety Code set out above, then 

you must find tha.t the Montana Power Company was 

negligent as a matter of law. 

MPC1s engineers testified that these provisions were designed 

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 since 
MPC 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 

instruction stated it must 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 a matter of construction 

and design standards, as is the matter of installing barriers 

around towers or signs. The standards of the NESC should not 

be limited to a narrow 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 elements of maintenance. 

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 interpretation of 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 

standards by 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 of 
maintenance 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 suffered by the plaintiff. 

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 therefore were 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 of willful and wanton conduct on the part 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-lant contends that denial of plaintiff's 

instruction no. 16 further destroyed NESC protections. The 

instruction reads : 

The National Electrical Safety Code is a minimum 

standard only. You may 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 

statute was 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 refused by 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 

negligence on the part of plaintiff 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 in juries 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 in the dark. This, he argues, makes it impossible to 
tell 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. Owens v. Parker Drilling Co. (Mont. 1984), 

676 P.2d 162, 166, 41 St.Rep. 66, 71. In fact, we have 

refused to order a new trial based upon the reasons defendant 

gives. In North v. Bunday (Mont. 1987), 735 P.2d 270, 277, 

44 St.Rep. 627, 636, we expressly recognized the integrity of 

the jury in determining negligence percentages when we 

stated: 

We cannot impugn the integrity of the jury that it 

indulged in that kind of manipulation. The single 

duty of the jury in this case was to determine the 

applicable percentages of negligence, if such 

negligence existed. 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 though not called on to 

determine damages, their factual determination 

would be different from what they decided. 

We are persuaded by appellant's argument that the jury 

speculated about the effect of its percentage determinations. 

During deliberations the jury sent a note to the judge, "Do 

the percentages in question #4 apply to monetary compensation 

in question #5?" The judge answered, "Dear Folks: You must 

answer each question separately by 8 or more of your 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 

lengthy discussion, the Idaho Supreme Court concluded that it 
is 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 

should have been informed of the effect of its verdict. Upon 

the request of a party, the court must 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 trial and had received from its counsel just before trial? 

Since we are remanding the case we will discuss this 

issue only 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 1973 and 

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 interpretation was, as 

yet, unpublished and undistributed and MPC1s counsel seemed 

to be the only one in possession of 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 standard which 

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 a proper foundation. 

Issue 5. Did the trial court err in allowing MPC to use 

the expert testimony of its employee Pat Rice who was 

involved with the suit months before trial but was identified 

only seven days hefore trial, when another expert had been 

identified as the power company's primary expert and when 

appellant had declined to make use of a continuance the trial 

court had 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 

misrepresentation and bad faith under both the common law and 

the Unfair Trade Practices Act? 

The trial court dismissed Count I1 of 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 

$500,000 of its losses, its adjuster's actions were tortious, 

malicious, oppressive and unjustified. 

Appellant claims that the adjuster presented himself as 

an investigator for the Public Service Commission (PSC) and 

that he was a state official on official business. He claims 

most of the information gained was 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 outside 
the emergency room. Appellant contends this amounts to a 

tort in and of itself. 

In addition, appellant argues that the trial court erred 

first by not assuming the facts alleged in the complaint to 

be true for purposes of a motion to dismiss. Rule 12(b) (6), 

M.R.Civ.P. Secondly, the court essentially rendered summary 

judgment for the defendant by assuming certain facts would be 

proved. Appellant contends that this, along with not 

informing the parties tha.t the court is treating the motion 

as one for summary judgment, is error under Gebhardt v. D. A. 

Davidson & Co. (1983), 203 Mont. 384, 389, 661 P.2d 855, 857. 

Appellant further contends the substantive law is also 

in his favor. He alleges the adjuster's activities were 

performed in accordance with deliberate corporate policy and 

performed by a skilled, experienced and trained agent and 

appellant was harmed by these actions. The situation is also 

aggravated because the same agent working for MPC allegedly 

investigates and 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 which was breached and consists of unsupported conclusory 

statements. They argue dismissal was correctly based on the 

failure to state a 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 the 
business of providing power to customers was not, at the time 

of Martel's accident, regulated by the Unfair Trade Practices 

Act, 5 33-18-101, et seq. MCA (1985). The Act only covered 

those in the business 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: -