*1 GRANTED; DECISION CERTIORARI VACAT- APPEALS THE COURT OF

OF TRIAL COURT

ED; OF THE JUDGMENT

AFFIRMED.

HARGRAVE, V.C.J., and OPALA,

LAVENDER, SIMMS, WILSON, JJ., concur.

ALMA J., C.J., KAUGER,

DOOLIN,

dissent.

SUMMERS, J., participating. TRETT, Appellee,

R. Thomas & ELECTRIC

OKLAHOMA GAS

COMPANY, Appellant.

corporation,

No. 67352.

Supreme Court of Oklahoma.

April 1989.

Rehearing Denied June

Mordy Mordy, Mordy, and Inc. Burke Ardmore, appellee.

LAVENDER, Justice: Appellee R. an em- Thomas was ployee of The Company Dolese company’s opera- employed quarry at that tions in southern Oklahoma. One company’s operations quarrying was the railway At stone for use as ballast. one of quarry operations had these the stone been plans exhausted Dolese undertook begin quarrying from stone an area to the east, of county on other side road. In crushing order to make use of the rock unit loading and rail on west facilities side road, plans Dolese undertook overpass bridge county build an over the bring road so Dolese tracks could stone from the east side to the facilities on worrying the west side traf- without about public began fic on the road. Dolese con- project struction on this around the middle July in 1981. A line owned O.G. & E. paralleled county road some distance to the west. Because Dolese intended to raise grade for their road make use of the bridge, using the completed tracks road danger coming would be into contact electric Accordingly, Dolese 17, July contacted O.G. & E. on 1981 con- cerning the need to relocate the line. An met with offi- Dolese shortly cials at the work site thereafter to Dolese’s August assess needs. On proposed O.G. & E. sent estimates to Dolese on various methods of relocation. August On 1981 Dolese sent a check to E. to expensive cover the least accompanied by relocation alternative expressing note pleasure that &O.G. agreed had work commence on the relo- August cation the week of August 19, 1981, On Dolese was well along in the construction of the new road bridge. morning On Ross, Rainey, Rice and Binns employees, appellee Trett, H.D. including were Binns, Jr., L. Rod Cook and Robert engaged moving J. pan- reinforced concrete Campbell, Jr., City, for appel- els placement in the bridge construc- lant. tion. fill already Some material had supported the jury E. whether the evidence under the O.G. & new road placed Appeals who was Superintendent verdict lines. The Dolese moving directing operations had panel erroneously dealt with the instruction is- picked up by panels ten ton had one of the *3 sues. a end loader. The sling on front

a cable affirming judgment In the ground up off the and the panel picked was Appeals court the Court of stated that trial to directed the loader back superintendent agreement it did not find the contractual Appel- in panel the the air. and turn with totally E. to O.G. & and Dolese between employees who Trett one of two lee was liability. & E. from The insulate O.G. panel the as it moved. steadying was were merely question court stated that the holding a on to steel Appellee Trett was jury. was the properly submitted to reinforcing panel on the front bar the when petition E. in its pointed As out O.G. & inadvertently into backed the end loader certiorari, proper the standard to be made lines and contact was be- electric sufficiency applied when the of the evi bucket, from the raised loader which tween raised support jury dence to a verdict is the panel slung, was and one of ener- the support whether there is evidence to Appellee re- gized Trett electric against judgment party for the whom the a a electric shock as result ceived severe motion is made.3 the for directed verdict this contact. ruling In on a trial court must such motion Appellee brought present Trett the ac- consider as true all the evidence and all the against alleging negli- E. that O.G. & reasonably inferences drawn therefrom fa brought on & E. had gence O.G. party against vorable to the whom mo injuries. his The matter tried to about was any conflicting tion is made and evidence jury finding a verdict a which returned disregarde to must be favorable the movant contributarily percent negli- to 2.5 Trett reviewing ruling d.4 In the trial court’s finding & gent and O.G. E. to be 34.17 appellate court must examine the percent negligent awarding Trett record and make a determination to $350,000 damages.1 app- in & E. O.G. reasonably whether there is ealed, arguing that Trett’s evidence did tending support judgment.5 to Here it support the not verdict and that O.G. & Appeals’ from appear does not the Court of E.’s for directed verdict should motion have opinion that such an examination of the granted and that the trial court erred pre record was made. We have therefore giving requested by in not two instructions viously granted and now under certiorari Appeals, The O.G. E.2 Okla- ques appropriate take the review Divisions, City to which this case homa was presented. tions affirmed, originally assigned, finding er- no points raised ror as argues appeal & E. that Trett On O.G. present any support failed to evidence to a petitioned for O.G. & E. certiorari from finding a duty that O.G. & E. had breached Court, Ap- arguing that Court of argues duty a apply proper owed to Trett.6 Trett peals had failed stan- part, of on & E.’s and a breach of that dards review as O.G. Inc., remaining percent negligence Specialties, 4. was Messier v. Simmons Gun 687 1. 63.33 Dolese, (Okla.1984); against employer Haney, supra v. assessed Trett's which P.2d 121 Moses party in trial. note 3. requested by 2. The two instructions O.G. & E. Foods, Eggleston, 5. Sooner Inc. v. 412 P.2d 621 1) by the but trial court dealt with: refused reduction to value awards future 2) damages; taxability personal injury negligence 6. are The elements of actionable awards. duty existence of a the defendant protect injury, (Okla.1986); plaintiff Haney, from a violation Moses v. Merrell, resulting (Okla.1975); duty injury. or breach of that and a P.2d Gowins v. Owen, Co., Inc., (Okla.1977); Hughes Sadler v. T.J. Lumber Sloan P.2d 812 Ni Tacker, (Okla.App.1975). cholson v. busy.” duty, evidentiary they was established on two stated that were “too While points. supervisors & E.’s lines The first was the two from Dolese were sub- dangerously hang ject trial, were allowed to at a low to examination at there was no level. The second was attempt identify O.G. & officials timely in failed to move the lines fashion allegedly who made the statements attrib- following request. Dolese’s uted to them. height On the issue of the of O.G. & E.’s previously This Court has stated that lines, testimony introduced the conditions, the absence of unusual himself and several of co-workers to the his maintenance of electrical lines accord- *4 that, opinions, effect in their the lines were requirements ance with the of the Okla- However, dangerously low. from this tes- Corporation homa Commission the Na- timony it was also clear that a front end Safety prima tional Code will constitute a loader, with its bucket down in a normal showing negligence.7 facie of lack of Our position under could drive the lines with cases have further indicated that where only height clearance. The evidence of the compliance requirements with these es- by of the loader was submitted showing tablished there must abe of ex- and established that the distance from the ceptional circumstances on which to base ground top to the of the loader’s cab was negligence liability of the elec- feet, only specific fifteen ten inches. The trical carrier.8 regarding height the of the O.G. At trial O.G. E.& raised the by & lines was also submitted of 63 O.S. 1981 981 through also §§

and was to the effect that the O.G. & E. known as the “six foot rule.”9 Section 981 carrying charge which was contact- provides: by ed the front end loader eighteen person, firm, corporation No five inches above the level of fill or associ- shall, by added at ation point, individually through Dolese the line’s lowest or top point agent and from the of the fill employee person to the or and no as an contact of approximately the accident was agent employee firm, or any person, nineteen and one half testimony feet. The corporation association, or perform shall of O.G. & E.’s witnesses also established permit any agent or employee per- or height that the line exceeded National Elec- any form activity upon function or any Safety trical requirements imposed Code land, building, highway, premis- or other by on O.G. & E. Corporation es, possible when it is during per- Commissionrules on electrical transmission formance activity any person of such for by lines a minimum of three and a half feet employee or engaged in performing work prior placement to Dolese’s of fill under- connected with or related to such func- neath activity tion or placed to move to or to be position (6) in a within six any feet of

On the issue of O.G. & E.’s timeliness of high voltage overhead electrical line response or request to move the lines conductor, possible or when it is only any evidence submitted Trett was tool, any equipment, machinery his and his testimony wife’s that on the evening accident, or material day by any of the of the to be used per- two of such supervisors Trett’s at the son or quarry brought to be within six stopped by and told him that they any feet of such high overhead volt- attempted to have O.G. & E. age move the lines line or through any conductor later- al, earlier but that the O.G. & E. officials had vertical swinging or during motion Co., 7. Daniel v. Oklahoma Gas & Electric constitutionality 9.The “six-foot rule” stat (Okla.1958); parties utes has not see Rudd v. Public been raised as an Co., appeal issue sary (N.D.Okla.1954). in this F.Supp. Service therefore it is unneces question. for this Court to address the See Application County Building Courthouse Com Daniel, Co., supra; Rotramel v. Public Service (Okla. Stephens County, mission 1965). of, fine of not shall be liable to a more function or ac- performance of such ($500.00), tivity. Five Dollars or than Hundred county jail for imprisonment in the provides: Section (6) months, not to exceed six or term person, corporation firm any When imprisonment; and in both fine and carry on func- any temporarily desires to thereof, if addition such violation results tion, operation closer activity, work physical or electrical contact any high-voltage line or con- proximity to act, high conductor, permitted voltage ductor line or than overhead responsible for the persons firm, person, corporation or associa- promptly notify the shall work be done violating provisions of this high-voltage conductors operator shall be liable to the owner performed and make to be work high voltage line or conductor for oper- arrangements with the appropriate damage facilities and for all to such high-voltage conductors ator opera- by such owner or barriers, tempo- temporary mechanical tor as a such accidental result grounding rary deenergization *5 conductors, temporarily raising of the or required The to essence establish any proceeding with conductors before foreseeability impair duty the clearances the existence of a is of work which would required act. consequences this of the of the breach al duty.11 liability on any opera- leged

The incurred To actual costs establish provid- case, of conductors in high-voltage tor of O.G. & E. in the ing set out shall be clearances as above necessarily have had to offer evi would or paid by persons, corpora- firms to that it was dence establish foreseeable operator high- of the requesting tions E. undertake to O.G. & that Dolese would voltage provide tempo- to said conductors in violation of state construction activities and rary Unless until ar- clearances. ignore the and also contrac statutes would rangements satisfactory operator to the provisions agreed tual to between & conductors for high-voltage such with E. and Dolese in conformance those made, payment operator such have been any failed to offer same statutes. Trett provide duty shall no to clear- be under point. this critical evidence to establish No ances set out herein. as to show that O.G. evidence was offered of the “six foot rule” As a result notice, had which would have actual in necessary it have been would negoti in the contractual conflict with of duty order to find a O.G. & ations, actually begun that con prevent E. to act to the accident which in the area of O.G. & struction activities Trett, E. to that injured for O.G. & foresee prior lines the date of the accident. E.’s to act in of Trett and Dolese would violation to notice essential es We would find such point emphasized by state law. This is exceptional circumstances which tablish very “six foot rule.” The nature of the part of duty create O.G. & would positive language rule is in its and forbids anticipate compliance with state provisions.10 in its The action conflict with regulations and would be insufficient law pe made the Legislature has further rule public. duty fulfill its to the provides: in nal nature. Section 984 competent we find no Because firm, corporation, Every person, associ- jury’s reasonably supportive of the verdict

ation, every agent of and in case the Court of this we VACATE firm, corporation, any person, opinion herein and RE- Appeals’ rendered association, any pro- violates who court judgment of the trial and VERSE guilty visions shall be of a of directions misdemeanor, REMAND matter with upon and confiction there- 10. See Cox, Nye Telephone Bell v. Southwestern Smith Co., (6) appellant ing E.12 six of judgment for within feet electrical line

enter or conductor assumes the risk a matter as V.C.J., SIMMS, OPALA, all liability an owner lawof SUMMERS, JJ., of physical as a result concur. KAUGER legislative prescription plainly This in is C.J., HODGES, HARGRAVE, derogation of 6 of Article Section WILSON, JJ., ALMA DOOLIN and Oklahoma Constitution: dissent. contributory negligence defense “The of WILSON, Justice, dissenting: ALMA shall, assumption or of the risk of whatsoever, fact, be a cases presupposes opinion majority The shall, times, at all left portion 63 O.S. § jury.” purports grant special right which Thus, operators such owners and cannot operators “indemnity” to owners and constitutionally legal be relieved of the bur- high voltage lines is constitutional.1 It defensively prove, den to as a matter not. fact, injured/electrocut- whether or not an portion states: relevant (or principle) ed truly his assumed “... violation coming with- [I]f [i.e. physical risk contact any high voltage in six over- high voltage lines or conductors. Our head line or electrical results conductor] State Constitution at Article Section physical or electrical contact with supra, prohibits legislative preclusion conductor, overhead assumption risk anything other firm, person, corporation, or associa- *6 question than a of fact. It be sum- cannot violating of this marily deemed a matter of In law. shall be liable to the owner or respect, challenged portion 63 O.S. high voltage of such line or conductor for 1981, patently is unconstitutional on § damage all facilities and face, dictates, law, its for it as a matter of liability owner op- any person coming within six erator as a result of such accidental of an overhead conduc- [Emphasis mine.] tor assumes the risk of 984, portion above of 63 O.S. § operator (and owner or therefore assumes face, on its violates Constitution of this physical injury electrocution) risk 23, Const., State at Any Okla. Art. 6.§ regardless particular facts and cir- granted through action which is an uncon operator/owner’s cumstances or the own legislative stitutional act of the is branch negligence. inception. void without effect from its I would hold the quoted por- heretofore wholly void, It in legal contemplation is 1981, unconstitutional, tion of O.S. § inoperative is as as if it had never been and therefore without effect. passed. County State v. Board Com County, missioners 188 Okl. Creek (1940). portion The above of 63 O.S. 1981 984 §

purports prescribe com- disposition (a 12. As a assumption jury result of of this question) matter nation of risk sufficiency question, of the evidence it is process. tantamount over, to a of due denial More unnecessary propositions to address the of error Supreme may review matter regard jury presented by ap- instructions presented not in the lower court if a pellant. public policy public interest is involved. In City, re Initiative Petition No. 10 Oklahoma process exception

1. Lack of due an claims are (1940). Questions 186 Okl. general presented rule issues not to a affecting right may substantial be considered appeal. Austin, trial court will considered on appellate court of review. Stem v. W.O.Pettit v. American Bank National Adams, 30 Okl. 118 P. 382 case, In the statutory preclusion of the factual determi