Opinion
July 17, 1973.
Editorial Note:
This case has been marked 'not for publication' by the court.
Stewart H. Brown, Vail, Eugene D. Lorig, Longmont, for plaintiff-appellant.
Banta, Banta & Eitel, Richard L. Banta, Jr., Englewood, for defendant-appellee.
Page 287
DWYER, Judge.
Plaintiff, Wave L. Wertz, appeals from summary judgment entered in favor of the defendant, Holy Cross Electric Association, Inc., in an action to recover damages for the wrongful death of her husband, Albert G. Wertz, Jr. The decedent, while engaged in the performance of his duties as an employee of a motor crane service, was electrocuted when a cable attached to the boom of a crane came into contact with the overhead, energized, high voltage electrical transmission lines of the defendant.
Plaintiff brought this action alleging that the death of her husband was proximately caused by the negligence of the defendant. In her complaint, she specifically alleged that defendant negligently failed to exercise the care required to avoid contact with its lines; negligently failed to move its lines to a location safely removed from the site of construction; negligently failed to insulate, bury, or terminate transmission of electricity through its lines; knew, or had reason to know, of the construction activity involving the use of the crane; knew the crane was capable of contacting the lines; and failed to take any steps to avoid contact with its lines. This was allegedly a breach of defendant's duty to plaintiff's decedent.
Defendant, in its answer, denied generally any negligence and asserted that the decedent's death was caused solely by the negligent act or omission of decedent's employer or his coemployees.
Defendant subsequently filed a motion for summary judgment supported by depositions. In its motion, defendant alleged that the pleadings and depositions reflect that there is no genuine issue as to any material fact and that defendant was entitled to judgment as a matter of law. Plaintiff did not file any affidavits or depositions to refute defendant's motion. After a hearing, the trial court entered summary judgment in favor of the defendant.
The record, viewed most favorably to the plaintiff, sets forth the following undisputed facts. Decedent was an employee of a motor crane service which was employed as a subcontractor in the construction of an apartment house in Vail, Colorado. Adjacent to the construction site was an easement upon which was located defendant's electrical transmission lines. In his deposition, defendant's manager stated that the construction of the lines and defendant's safety practices were in compliance with the National Electrical Safety Code. On May 19, 1971, a crane, owned by decedent's employer, was working on the construction site assisting in the movement of machines and material. The operator of the crane stated in his deposition, that he had swung the boom of the crane around over defendant's lines. Decedent had walked up to the crane and was engaging the operator in a conversation. The operator admitted that his attention was distracted. The operator stated that due to settling on one side, the crane was not level. As the decedent stood touching the machine talking to the operator, the machine drifted and the cables attached to the boom came into contact with defendant's power lines resulting in decedent's fatal injuries. The crane operator had been informed that defendant's lines were 'hot' and that he should avoid them as much as he could.
The owner of the crane service deposed that he had observed defendant's lines at the construction site, and that he knew they were not insulated and that precautions would have to be taken to avoid contact with the lines. He stated that he did not ask defendant to move its lines, or cut off the power in the lines. Upon the basis of his conversation with the crane operator, the owner stated that, in his opinion, the cause of the accident was the momentary distraction of the operator's attention by the conversation with the decedent.
Plaintiff contends that the court erred in entering summary judgment for the defendant because the issue of proximate cause of decedent's death is a matter to be resolved by a jury. A party is entitled to summary judgment where the pleadings, affidavits, depositions, or admissions on file show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. C.R.C.P. 58(c); O. C. Kinney, Inc. v. Paul Hardeman, Inc., 151 Colo. 571, 379 P.2d 628. Plaintiff admits that there is no dispute as to the material facts of the accident, but asserts that the questions of negligence and proximate cause should be resolved by a jury. We disagree. Upon the basis of the undisputed facts in the record, the court properly concluded that defendant was entitled to judgment as a matter of law.
Although held to a high degree of care because of the inherent danger of electricity, a power company is not an insurer and may be held liable for injuries or death resulting from contact between an electric line and a crane only if the power company is shown to be negligent and its negligence proximately caused the injury. Currence v. Denver Tramway Corp., 132 Colo. 328, 287 P.2d 967, is directly in point. In that case, plaintiff, an employee of a construction company, was injured when a crane came into contact with defendant's power lines. The Supreme Court, in holding that there was no negligence on the part of defendant, stated:
'. . . There is no showing that defendant company in the construction and maintenance of its power lines, had not complied with all safety codes or ordinances and regulations. Its duty involved the exercise of reasonable care commensurate with the dangers involved. It was not required to protect against any and all possible eventualities. Such requirement would make defendant company an insurer, whereas its only duty was to guard against probabilities. It cannot be held to be negligent in not anticipating such an occurrence as is here presented, that is, the operation of an oversize crane near its power lines. The negligence heretofore observed as being rampant on this occasion was that of the contractor and Motor Crane Service. Their knowledge of the known danger and their disregard thereof fixes the proximate cause of the accident.'
Examination of the record discloses that there is no genuine issue of any material fact and that there is not breach of duty to plaintiff's decedent on the part of defendant.
Judgment affirmed.
ENOCH and SMITH, JJ., concur.