*1 ruling judgment upon legisla- on the dubious and un- the Town’s Without legal tive body. for the court’s substantiated basis conclusion, support factual in we find no opinion Appeals Court of holding. for The Code of
the record judgment therefore VACATED and the Tipton, for the Town of Okla- Ordinances the trial court is REVERSED. an exhibit and exam- homa was admitted as validity by the trial court and ined HODGES, LAVENDER, HARGRAVE, challenged. is not this Code Ordinances OPALA, WILSON, KAUGER, ALMA A review of Code shows Town SUMMERS, JJ., concur. statutory power regulate its formalized building by enacting limits within town C.J., SIMMS, judgment. concurs in 43-101, O.S.1981, language ver- Fur- as its own 16-15.1. batim Ordinance
ther, 4-10, there is an exten- Ordinance governing procedures set of rules
sive building application and issuance
permits. 13 of that ordinance Subsection provides:
further any aggrieved person from
Appeals Clerk, concerning a of the Town decision WOODIS, Evelyn Parents John and granting Building Per- relative to Henry and Next Friends of John mits, shall be to the Town Board of taken Woodis, Jr., Plaintiffs-Appellees, Trustees, who act as a shall Board Tipton, Appeals for Town of Okla-
homa. AND ELECTRIC OKLAHOMA GAS exactly procedure COMPANY, followed corporation, Which case. by Landowner the instant Defendant-Appellant. No. 58815. holding
The trial no court erred procedure existed within Town’s ordi of Oklahoma. Supreme Court governing building application for nances Further, permit hearing and for a thereon. July appears fol it both Landowner Town application procedures as writ lowed
ten, and based all the relevant infor ex
mation available the Board Trustees- legislative in a its discretion reason
ercised if, prudent Even for the
able and manner. argument, had been
sake of there a defi building permit proce
ciency the Town’s
dures, says we find no rule of law which ground overturning
this is a sufficient decision, long appli so as an
the Town’s equal rights process pro
cant’s due
tection are violated. the trial erred find-
Because court procedure governing
ing that no existed
building permits because there no
finding unreasonably, the Town acted arbi-
trarily capriciously, the trial court had independent grounds superimpose
no
LAVENDER, Justice: The sole Oklahoma Gas and (OG&E) Company Electric raises for our appeal wrong- consideration this from a judgment ful death the trial in refusing jury court erred to instruct the that the decedent was a on its transmission-line tower and that the injure of care it owed him was not to wilfully wantonly. him or We conclude that under facts adduced and the law applicable thereto OG&E not entitled to the refused instruction affirm the judgment. fifteen-year boy
The deceased was a old who climbed to the of an top unlighted shortly transmission-line tower after mid- night. fifty The feet tower was stood in a field a third owned boy not defendant in the case. The by electricity was killed that arced toward high-voltage him from the line or insulator when he reached the near top crossbar of the tower. parents boy brought
The of the deceased action OG&E on theory that the electric had “high degree breached the of care” it owed properly son maintaining their Specifically, transmission-line tower. parents alleged sought prove had safety OG&E violated standards set Safety the National Electrical Code and safety precautions had failed to take other required were under circumstanc- parents es. The contended to make more failure difficult for tower their son to climb had caused his death. grounds defended on the OG&E that it complied applicable safety had with the precluded recovery code and that the decedent’s status as George, Sallisaw, S.Daniel plaintiffs- contributory negligence. The trial appellees. court refused instruct Wilcoxen, Cate, Andrew Wilcoxen & awas on OG&E’s trans- Muskogee, Stratton, H. Duane E. Steven only duty mission-linetower and that Moore, City, defendant-ap- Oklahoma care OG&E owed the entrant was not to pellant. injure wilfully wantonly. him OG&E Jay Galt, Nichols, Looney, requested M. Johnson & claims error this refusal Hayes, City, Oklahoma for amicus curiae. instruction. “(b) par- using intermeddling a verdict for the with a jury returned
ents, thirty-five per- possession chattel with an attribution in the another.” negligence to the deceased and six- cent of part following As of the “Comment” ty-five to OG&E. 217, it is stated: Physical “e. contact with Chattel: I. “ ‘Intermeddling’ *3 intentionally means We first consider the decedent- bringing physical about a contact with of occupied the status a entrant may chattel. The actor commit a at of his electrocution. the time trespass brings by an act which him into undisputed It that OG&E a owned physical intended contact with a chat perpetual right-of-way easement across another, tel in the as possession of when owner, it upon land a third which dog, he beats another’s horse or or electric transmission towers maintained directing object or intentionally missle including and the tower climbed lines against it, as when the actor a throws decedent; possession it had of the that at stone another’s automobile or inten lines, and, by ease- towers and virtue of its tionally drives his own car it...." ment, right possession of both. need not address the We entry by Here the unauthorized deceased trespasser upon was a whether decedent possession in the tower and wires easement, property, real for the reason placed of OG&E the deceased in the statue that occu we here determine decedent trespasser upon of a OG&E’s transmission pied upon per of a the status tower and wires. sona] OG&E, i.e., and property its tower wires. Johnson, In Kaw 202 Okl. City v. (1949), P.2d 699 held that the owner of we personal property Trespass to is delineat- light power duty electric and wires owed no Trespass ed in Am Jur 2d as fol- 9§ except toward a thereon to re- lows: him injuring intentionally frain from or “Trespass personalty is the inten- wantonly. supra, a City, In Kaw nineteen tional use of or interference with a chat- county a year boy old climbed owned possession tel in the which is bridge City Kaw top on of which owned Any in- justification. unlawful without with and maintained wires the con- terference, slight, en- however with the county. of the The wires were bare in sent joyment personal prop- another of his a spots places covered with weather trespass. ...” erty is a grabbed the insulation. The wires Torts, ed, 2nd further Restatement of lights grab- city twice to dim the elucidates: time, bing them third received a for the 215. Definition Possession of “§ him to jolting caused fall shock which Chattel: bridge floor, his death resulted. Subject, “In the Restatement of specifically address While the Court did person ‘possession who is in of a chattel’ personal trespass fact physical who has control of the one trespass upon property, in fact a it was with intent to exercise such con- chattel duty- traditional personal and the property behalf, trol on own on behalf applied. to-trespasser rule was another.” Ways Committing Tres- “§ to be committed appears Oklahoma pass to Chattel: negligence liability in var the view trespass chattel “A to a be com- complain entrant ies with the status intentionally mitted applies traditional ing injury, expressed in trespassers as Kaw “(a) dispossessing rule as to another of the chat- Johnson, supra. Sutherland tel, City v. Okl., Inc., Hospital, Code, with the Safety Saint Francis National Electrical (1979). required P.2d 780 Corporation order of the
Commission, exculpated an electric com-
II.
pany
charge
from a
negligent
that it was
maintaining
voltage
next consider whether
viola
uninsulated
We
provisions
building
lines close to a metal
tion of
National Elec
where it
knew or
Safety
trical
should have
code constitutes
known
ladders
per
would be used in the
part
se and breach of
on the
maintenance of the
building
might
general
which
come in
electric
owed
contact
public, including trespassers,
with
uninsulated
through the
wires. We there
police power
compliance
of a
held that
regulation.
invocation
with the National
Safety
in the
Electrical
Code
We answer
affirmative.
is not conclusive
company’s
evidence of the electric
exer-
There is substantial evidence in the
care,
of due
cise
“but
one factor to
support
finding
record
of a viola-
*4
Rotramel,
be considered.”
is distin-
tion of
Safety
the National Electrical
Code
bar,
guishable from the
in
case at
that
of
rung
1941 in that
the lowest
the
of
compliance
the
sought
with
code was
as
ladder on OG&E’s transmission tower was
shield, whereas, here, noncompliance
a
is
ground,
less than
feet
6½
from “the
sought as a sword.
readily
place”
other
accessible
as forbid-
In the
Langazo
case of
v. San Joa
by
added).
den
code. (Emphasis
the
quin Light
Power Corporation,
&
jury
a
was instructed that
violation
the
of
App.2d
(1939),
Cal.
In
through
we further
performance
public
considered
inure to the
compliance
power
aby
company
safety
the added
assured to individual
of-way,
appellant-trespasser
and can
person
property,
duty
effect
great
way.
as
must
exercised
public
in no other
That the failure
as
be
general public. (Ci
electric
requirements
of such a
to observe
omitted).
degree
will,
high
tation
While this
proximate
if the
cause of
statute
expressed
care
Power &
Light
even
a tres-
injury, support an action
[Florida
Bridgeman,
Co.
Fla.
by an
182 So.
passer
v.]
sustained
[133
abundance
(1938)
does not raise an electric
(Citations omitted).
com
authority.”
]
pany
against
of an insurer
the level
all
the trespasser-
between
The distinction
(Citation omitted),
possible accidents
it does
status-liability
part
determination on the
demand
company guard
that an electric
against
negli-
as
ordinary
landowner
against
reasonably
occurrences which can
gence
the one
claim of a
anticipated by
foresight.”
the utmost
hand,
trespasser-status-liability de-
and the
part of
Thus,
on the
the owner
termination
of a police
where a violation
voltage
operator
electric lines who power regulation
has been invoked
police
safety
has
statute
comply
violated
electric company’s failure to
there
negligence with,
regulation
the traditional rules as to a claimant
trespasser on the other hand is
occupying
claim of a
apply,
status do not
City
in the case Norris v.
illustrated
and the
one of
issue becomes
whether the
(1979).
Miami,
App.,
Fla.
GRAVE and the only transmission-line tower and him of care owed OG&E was not to KAUGER, J., judgment. concurs in wilfully wantonly. injure Judgment him C.J., SIMMS, part, concurs dissents rendered on a verdict below part. parents, thirty-five with an attribution of OPALA, J., dissents. percent deceased and sixty-five single to OG&E. OG&E’s claim SUMMERS,J., disqualified. judge’s give error is the trial refusal to OPALA, Justice, dissenting. requested instruction on the decedent’s wrongful In this death action the court trespasser status. pronounces power generat- that an electric view, Although, my requested ing company company] owes the *6 [OG&E charge correctly the that did not state law who, highest degree care to one as a decedent, spells duty the the out its toward trespasser upon by the land not owned the given by instructions the trial court are company, climbing was electrocuted while Where, fraught nonetheless with error.2 company’s the transmission-line tower. I join opinion. here, by the cannot as a decisive issue is formed together pleadings with evidence adduced deceased, fifteen-year boy, The old trial, to the attention of the at and is called upon unlighted climbed an trans- OG&E by requested charge, the court has court shortly midnight. mission-line after tower motion, duty, to set forth the on its own fifty The tower was feet and stpod governs the tendered is- rule of law by a field owned a third who was not informing sue.3 The trial court’s error litigation.1 in this The involved of care by electricity arced him the of the correct standard killed toward O.G.&E., only duty quo in the locus in O.G.&E.owed has but an easement of the and the 1. OG&E fatality wilfully —the land on which the in suit oc- or wanton- to the deceased was to avoid nonpossessory curred. Easements are estates in injuring ly him.” Property the land of another. Restatement of 450, 2903; (b) p. comment at Beetschen v. § McNeal, 31, 451, 3. Mason v. 187 Okl. 100 P.2d 751, Pipe Corp., Shell Line 363 Mo. 253 S.W.2d [1939], 452-453 cited in McCorklev. Great Atlan 785, [1952], 786 Co., Okl., 583, tic Ins. [1981]; 637 P.2d note 3 at 586 578; 12 O.S. Tapley, § 1981 Shelton v. requested OG&E stated: 2. The instruction Okl., 672, syllabus 329 P.2d [1958]. Decedent, "You are instructed that the Plaintiffs’ Woodis, 'Bo' John was a on the tower
489
prejudiced
liability
the
criteria of the
386
doubtless
tort
by OG&E
§
owed
—because
‘premises
on the
created,
OG&E had
posture.4
defense
company’s
here,
an artificial
condition —
(Second)
of the Restatement
386
Section
transmission-line
tower —which it should
case,
the sole
provides,
in this
of Torts
recognized as involving
have
an unreason-
basis
liability
be im-
upon which tort
persons
might
harm to
able risk of
qua electric transmission
OG&E,
posed
on
come
upon
imperiled
the land
be
the
of an uninvit-
company,
injury
for
or death
condition,7
dangerous
indeed,
may,
OG&E
upon its dan-
unauthorized entrant
ed and
like
to one
the
damages
be
answerable
the
gerous facility
upon
land of
constructed
who was a
decedent
vis-a-vis
components of
The critical
recov-
another.
the
as well
unautho-
landowner
as an
386 were neither
ery authorized under §
rized entrant
on
tower.
OG&E’s
In
parties
requested
in their
by the
tendered
short,
purposes
386
the decedent’s
§
any
of the court
charge nor included
status on the land and on the tower was
instructions.5
immaterial.
The
owed
OG&E
depend
did not
on decedent’s status but
an “aca-
386 fashions neither
Section
the
on
elements
386.
§
a new norm of liabili-
demic construct” nor
other
ty.
It draws
essence —as
sections
single
to
drawn
Because
inference
pertinent ap-
do—from
of the Restatement
undisputed
here
from the
facts
facts similar to
pellate pronouncements6 on
record is that
was indeed a
decedent
us.
386 embodies the
or,
those before
Section
as I
vis-a-vis
landowner —
apply
case,
common-law norms
prefer
say
American
it in this
unautho-
If
of this case.
rized
on
under
the circumstances
and uninvited entrant both
fit
negligent
did
the basic
land and the tower8 —it was
incumbent
conduct
4.
6. For
8.
7.
possessor."
which
land
v.
vides:
P.2d
or a member
reasonable
physical harm
may
or outside
tive
By
three
harm
land
trants to
Neither
cy
sees
Pacific
I
Restatement
This
Ward 255
considerations
do not
diminished
behalf,
varying
claim
common law’s trichotomous division
trespassers
and invitees—the common
occupier
794,
a structure or other
a recent
categories
occasioned
is the
“Any person, except
he should
consent of the
classified
historical
Ins.
now
may be
agree with the court that the decedent
risk of
who creates or
[emphasis supplied]
only
Co.
—a
Or.
[1969].
application
thereby
water down
(Second)
as between themselves and
they
responsibility
his household
protected
theory
entrants —
of as a
recognize
land,
85,
antecedents
militate in favor
rested.
physical
New York v.
are
464
possessor or
of
trespasser
defects
caused to
of tort
lawfully upon
care
§of
subject
P.2d
class
harm to others
maintains
the tort
artificial
Torts,
*7
386,
applicable
possessor
nor modern
in the
liability
involving
trespasser,
or one
698,
Frank, Okl.,
vis-a-vis OG&E.
law affords the
them,
otherwise,
yore
see
liability
701 [1970].
liability
condition
acting
extending
premises.
Escobedo
386,
on
form—a
irrespec-
of land
an un-
which
of en-
licen-
land,
poli-
pro-
452
plete
Bartmess,
shield from
Invitees,
occupier.
immunity
where the
was held
Marsh,
non-possessors,
2),
whose
ponds polluted
between
has
Okl.
harm to
Section 386
tion that the
nonpossessors
possessors well articulated in
21 N.Y.S.2d
ests in land]
tion. This
the land of
reflects the
"involving any
spective
and Earl
discussion
Hughes,
Survey
ment
and Restatement
refused
Machinery
(Second)
L.Q.Rev.
cattle
&
of whether
Duties
liability
Licensees
others", applies
W. Baker
Revaluation,
defendant,
rule
181 Okl.
liable to an
See
general
section,
common law’s
History
another
owner of
of Restatement
trespassed
P.2d
for conditions
[owners
182,
apply
such as
to a defendant other
e.g.,
&
unreasonable
(Second)
of
[1940],
Equipment
Torts,
Trespassers: A
the defendant’s
negligence.
359-361
occupiers and that
they
which
Utilities Co. v.
occupier
501,
Phillips
may
OG&E
68 Yale
623-624
dangerous
Trespassers,
and were
owner
where
was
adjoining
to all
traditional
Comparative
of
not defeat the dece- vis-a-vis itself or
dent’s status landowner,10 clearly it was entitled to ordinary-degree-of-care charge. Plain- recovery wrongful
tiffs’ for decedent’s
death can be rested here on OG&E’s liability ordinary 386 tort for breach of
§ care. The was not so instructed. It CITICORP SAVINGS AND TRUST charged highest was that OG&E owed “the COMPANY, an Oklahoma degree admittedly of care” to one who was Corporation, Appellant, neither a an invitee in licensee nor quo. locus in The BANKING BOARD OF STATE short, In I cannot accede to the court’s Empie, OF OKLAHOMA and R.Y. OG&E, holding qua power-trans- Commissioner, Appel Oklahoma Bank facility mission with a constructed lees. highest the land of owes the No. 61663. degree care to an unauthorized en- trant its tower and a vis-a- Supreme Court of Oklahoma. proves vis that land’s owner who OG&E’s 23, July noncompliance police power with some (1) regulation. I would hold that
liability governed exclusively by here is (Second)
terms of Restatement § (2)
Torts and because the decedent was not quo,
a licensee or invitee in the locus in entrant,
but unauthorized and uninvited him,
OG&E owed under the standards of ordinary no more than care. uation, 640; pump placed Injured supra land ..." In Ireland a hand at Annot.: Status of bank, alley request Trespasser in an near a at the on Land Not Adult Electricity Supplier, Owned bank, purpose pumping Affecting Liability for the water out of As Its Injuries its basement. The court held that § 386 did not Inflicted on Him Electric Wires it defendant-contractor, apply Thereon, and that the Maintains 30 A.L.R.3rd 777 [1970]. operating pump plaintiff was injured, when the *8 Okl., Company, protection 9. Rotramel v. Public Service was entitled to the operating rule P.2d 1015 [1976]. because he was pump at the invitation and for the benefit of the Inc., Hospital, 10. Sutherland v. Saint landowner. occupier, Francis Some courts have found that an Okl., operates inherently dangerous P.2d 780 Under the common- [1979]. apparatus, may system, only duty owe a to those who law status classification of care technically trespassers. injuring Hughes, See Duties owed a is to avoid him wil Trespassers: fully wantonly. Comparative Survey A & Reval-