671 S.E.2d 740
The Opinion of the Court was delivered PER CURIAM.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE MCHUGH, sitting by temporary assignment.
JUSTICE BENJAMIN disqualified.
JUDGE BLOOM, sitting by temporary assignment.
5. “Valid rules and regulations of the Public Service Commission of West
Virginia, which incorporate and adopt certain minimum requirements of the National
[Electrical] Safety Code with regard to the external installation of electrical equipment, have
the force of statutory law and the failure to comply therewith would constitute prima facie
negligence. The compliance therewith would meet the standard of care and duty required in
such cases unless other circumstances appear which would require additional care in order
to comply with the requirement to use ordinary care in attendant circumstances.” Syllabus
point 1, Johnson v. Monongahela Power Co., 146 W. Va. 900, 123 S.E.2d 81 (1961).
6. “Even though a child is a trespasser on the property of a third party, he
is not a trespasser as to one who maintains electric [or guy] wires either on or in such
proximity to the lands of the third person that the child while on such lands or objects on
such lands may come in contact with the wires.” Syllabus point 3, Sutton v. Monongahela
Power Co., 151 W. Va. 961, 158 S.E.2d 98 (1967).
Per Curiam: (See footnote 1)
The appellant, William T. Smoot, II, by his next friend, Kari Major (See footnote 2) (hereinafter collectively referred to as “Mr. Smoot”), filed this appeal from an order of the
Circuit Court of Kanawha County granting summary judgment to the appellees, American
Electric Power, Verizon of West Virginia, Inc., and Charter Communications, Inc. (See footnote 3) Here,
Mr. Smoot contends that the circuit court erred in finding, as a matter of law, that the
defendants did not owe him a legal duty to place guy markers on three guy wires (See footnote 4) that
anchored a utility pole. (See footnote 5) It is also contended by Mr. Smoot that the circuit court committed
error in finding that, (1) at the time of his injury, he was a trespasser, and, to the extent that
the defendants owed him a duty, (2) there was no evidence that the defendants engaged in
willful and wanton conduct that caused him injury. (See footnote 6) After a careful review of the briefs and
record, and considering the oral arguments of the parties, the circuit court's summary
judgment order is reversed and this case is remanded for further proceeding consistent with
this opinion.
On May 4, 2004, Mr. Smoot filed the instant action against the defendants. In
his complaint Mr. Smoot contended “[t]hat because the defendants did not have any of the
guy wires marked [, he] was unable to see that he was riding straight for the guy wires until
it was too late to avoid coming into contact with said wires.” After a period of extensive
discovery, the defendants moved for summary judgment. On February 22, 2007, the circuit
court granted summary judgment in favor of the defendants.
The circuit court's summary judgment decision was based upon two mutually
exclusive grounds. First, the circuit court found that, based upon the industry standard for
utility pole guy wires, as set out in the National Electrical Safety Code, the defendants were
not required to place guy markers on the guy wires because the guy wires were not “exposed”
to pedestrian traffic. As a result of there being no requirement under industry standards to
place guy markers on the guy wires, the “[d]efendants did not owe [Mr.] Smoot a duty to
mark or guard the guy wires at issue.” Second, the circuit court found that Mr. Smoot was
trespassing when the accident occurred. Consequently, if a duty had been owed to Mr.
Smoot by the defendants, the circuit court determined that Mr. Smoot had to produce
evidence to show that the defendants' breach of that duty was willful and wanton. The
circuit court found that no evidence was produced to suggest that Mr. Smoot's injury
occurred as a result of willful and wanton conduct by the defendants. Following the entry
of the circuit court's summary judgment, Mr. Smoot filed this appeal.
[s]ummary judgment is appropriate where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, such as where the nonmoving party has failed to make a sufficient showing on an essential element of the case that it has the burden to prove.
Syl. pt. 4, Painter, 192 W. Va. 189, 451 S.E.2d 755. Finally, we are also cognizant that
“[t]he circuit court's function at the summary judgment stage is not to weigh the evidence
and determine the truth of the matter, but is to determine whether there is a genuine issue for
trial.” Syl. pt. 3, Painter, id. With these applicable standards in view, we now consider the
substantive issues raised herein.
[t]he ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?
Moreover,
[t]he determination of whether a defendant in a particular
case owes a duty to the plaintiff is not a factual question for the
jury; rather the determination of whether a plaintiff is owed a
duty of care by a defendant must be rendered by the court as a
matter of law.
Syl. pt. 5, Aikens v. Debow, 208 W. Va. 486, 541 S.E.2d 576 (2000).
In the instant case, the defendants argue that they complied with the standard
for using guy markers on guy wires, as the same is set out in the 2002 edition of the National
Electrical Safety Code (hereinafter referred to as “NESC”). (See footnote 9) Consequently, the defendants
assert that they did not owe a duty to Mr. Smoot to place guy markers on the guy wires in
question. (See footnote 10) The provision of NESC relied upon by the defendants, Section 264E(1), states:
The ground end of anchor guys exposed to pedestrian
traffic shall be provided with a substantial and conspicuous
marker.
(Emphasis added) (See footnote 11) (Footnote added). The circuit court found that “the guy wires at issue
are open and obvious and not exposed to pedestrian traffic. Thus, NESC does not require
that the guy wires in question be marked or guarded.” For the reasons fully set out below,
we disagree with the circuit court.
The parties in this case agree that NESC has been adopted by reference under
regulations promulgated by the Public Service Commission of West Virginia. See W. Va.
C.S.R. § 150-3-5.1.2 (2000) (“[T]he Commission will take as a guide the current edition of
the National Electrical Safety Code[.]”). This Court has had occasion to address the
application of standards set by NESC:
Valid rules and regulations of the Public Service Commission of West Virginia, which incorporate and adopt certain minimum requirements of the National [Electrical] Safety Code with regard to the external installation of electrical equipment, have the force of statutory law and the failure to comply therewith would constitute prima facie negligence. The compliance therewith would meet the standard of care and duty required in such cases unless other circumstances appear which would require additional care in order to comply with the requirement to use ordinary care in attendant circumstances.
Syl. pt. 1, Johnson v. Monongahela Power Co., 146 W. Va. 900, 123 S.E.2d 81 (1961).
Contrary to the contention of the defendants, it is clear that, under Johnson, proof of
compliance with a safety standard set out by NESC does not insulate a defendant from
liability, if a given set of facts demonstrates that a higher standard should be applied. See Lambert v. Franklin Real Estate Co., 37 S.W.3d 770, 778 (Ky. Ct App. 2000) (“[A]n electric
company's compliance with safety standards does not in itself free the company of
negligence.”). (See footnote 12) We need not determine whether the facts of this case required a higher
standard than that which is imposed by Section 264E(1) of NESC. In our review of the
record submitted to the circuit court, we find that Mr. Smoot presented sufficient evidence
to show that the standard established under Section 264E(1) of NESC required the
defendants to place guy markers on the guy wires at issue. A case which helps illustrate our
conclusion is Musch v. H-D Electric Cooperative, Inc., 460 N.W. 2d 149 (S.D. 1990).
In Musch, the plaintiff rode her horse onto the property of Alfred and Beverly
Novy, to retrieve a stray calf. When the plaintiff entered the Novys' property, “[j]ust a few
horse strides off the county road, the calf veered in a northerly direction under an unguarded
guy wire. [The plaintiff] never saw the guy wire and was violently knocked off her horse.” Musch, 460 N.W.2d at 150. The plaintiff filed a lawsuit against the defendant power
company that owned the guy wire and utility pole that it anchored. The trial court granted
summary judgment to the defendant on the grounds that the plaintiff was a trespasser on the
property. The Supreme Court of South Dakota reversed after finding that the defendant
could not assert a trespassing defense to real property that it did not own. In making this
ruling, the Musch court addressed the defendant's claim that it was not required to place a
guy marker on the guy wire. Musch stated, under applicable federal regulations pertaining
to agricultural land, “[g]uy guards, or better termed guy markers, must be used on guyed
transmission structures exposed to pedestrian traffic.” Musch, 460 N.W. 2d at 151. The
court in Musch found that the plaintiff presented evidence that a guy marker was required to
be placed on the guy wire:
Here, [the defendant's] pole and guy wire were near a county road. Their own guidelines suggested that guy wires be marked if in fields exposed to vehicular traffic and pedestrians. Though [the defendant] claims [the plaintiff] presented no evidence of these facts, the record does not support this allegation. Alfred Novy testified concerning the pole's proximity to his garden and his mowing around the pole three or four times a year. The rough diagram entered into evidence by [the plaintiff] demonstrates the proximity of the pole and the guy wire to the road and traffic.
Musch, 460 N.W.2d at 154. In sum, the court in Musch found that the guy wire was exposed
to traffic because it was located (1) “a few horse strides off” the road, (2) near a garden, and
(3) near a lawn that was mowed and maintained.
In the instant proceeding, both parties have presented clear photo images of the
area in which the guy wires were located. The photo images reveal a utility pole near the
edge of Embassy Drive. Right next to the utility pole is a mailbox, newspaper box, and gas
meter. A flower garden runs immediately along the roadway near the utility pole. The
flower garden is partitioned on one side, closest to the road, by garden stones, and, on the
other side, by garden planks. The land begins to slope down from the garden planks, where
the guy wires are located, approximately nineteen feet from the edge of the roadway. The
picture shows that a lawn surrounds the guy wires and that the lawn was cut and maintained.
It is clear from the photo images presented to this Court, and to the trial court,
that the guy wires are exposed to pedestrian traffic. This is evident by the fact that a mail
box, newspaper box, gas meter, and flower garden are near the guy wires. Further, insofar
as no evidence to the contrary has been presented, the lawn immediately around the guy wires
is mowed and maintained. We are not concerned with the defendants' emphasis on the fact
that the guy wires are approximately nineteen feet from the roadway. As noted in Musch, the
guy wires are merely “a few horse strides off” the road.
Additionally, the defendants argue that the evidence establishes only that the
guy wires may be “accessible” to pedestrian traffic, but that the evidence does not show that
the guy wires are “exposed” to pedestrian traffic. In other words, the defendants contend that
there is a distinction between the meaning of “accessible” and “exposed to,” and that the
standard established by NESC does not include mere accessibility to pedestrian traffic. We
find this argument unpersuasive.
NESC does not provide a definition for “exposed”. Therefore, we must afford
the term its common, ordinary meaning. This Court has previously held that “'[i]n the
absence of any definition of the intended meaning of words or terms used in a [regulation],
they will . . . be given their common, ordinary and accepted meaning in the connection in
which they are used.'” Subcarrier Communications, Inc. v. Nield, 218 W. Va. 292, 300, 624
S.E.2d 729, 737 (2005) (quoting Syl. pt. 1, Miners in Gen. Group v. Hix, 123 W. Va. 637,
17 S.E.2d 810 (1941), overruled on other grounds by Lee-Norse Co. v. Rutledge, 170 W. Va.
162, 291 S.E.2d 477 (1982)). In the context in which the term is used in Section 264E(1) of
NESC, the common and ordinary meaning of “expose” is defined as “to submit or make
accessible to a particular action or influence.” Merriam-Webster's Collegiate Dictionary 441
(11th ed. 2005). See State v. Daub, No. 56621-1-I, 2007 WL 738805 at*2 (Wash. Ct. App.
Mar. 12, 2007) (per curiam) (“'Exposed' is not defined in the statute, but means made
accessible to something that may prove detrimental.”). Thus, contrary to the position of the
defendants, by definition, the term “exposed” actually refers to and encompasses the term
“accessible.” Further, insofar as there is nothing in NESC which suggests a distinction
should be made between the terms “exposed” and accessible,” we will not impose any such
distinction.
The defendants also attempt to rely upon the decision in Phelps v. Wisconsin
Telephone Co., 11 N.W.2d 667 (Wis. 1943). However, Phelps is clearly distinguishable. In Phelps, the plaintiff's husband, while driving a road grader, turned around in an area where
the road had terminated. In so doing, plaintiff's husband accidentally backed into a guy wire
which crushed him against the steering wheel and killed him. The plaintiff filed a lawsuit
against the defendant, a utility company that owned the guy wire. A verdict was returned in
favor of the plaintiff. The defendant appealed. The controlling issue in the appeal was
whether or not the defendant was required to place a guy marker on the guy wire. Under
applicable law, the defendant was required to place a guy marker only on guy wires that were
exposed to traffic.
The court in Phelps found that because the utility pole that was anchored by
the guy wire was located in an area where the road had ended, the guy wire was not exposed
to vehicular traffic. The court in Phelps rejected evidence showing that occasionally people
drove past the utility pole and guy wire:
There is no evidence which in our judgment would warrant the jury in concluding that there ever was any public travel on North 117th Street south of the guy pole. One or two witnesses testified that some cars had proceeded south past the pole and guy wire. Most of this evidence relates to cars that proceeded south along 117th Street, found that the street did not go through, turned around in the vicinity of the guy wire or even south of that, and occasionally got mired in the process. However, this showing of sporadic and occasional use south of the pole by persons operating under the mistaken assumption that the road led some place is not a showing that there was public travel on this highway and it is even further from a showing that the guy wire, which under any construction of the evidence was not in or immediately adjacent to a traveled part of the highway itself, was exposed to traffic, as that term is used in the safety order. That the wire was so exposed is sought to be shown by the same evidence. We are not impressed with the claim that this testimony is significant. Had cars been driven further south beyond the thornapple bush where nobody claims that there was any highway, the driver could not by this process expose this territory to traffic or constitute poles or other structures in that vicinity obstructions or inconveniences to public travel. Neither can this be done so far as the boulevard is concerned. There is some evidence that a footpath existed about three feet to the east of the pole and that children used this as a short cut to school. This does not establish that the guy wire is exposed to pedestrian traffic and if it did, it would not have any tendency to indicate that it was exposed to vehicular traffic.
Phelps, 11 N.W.2d at 669-70.
We do not find Phelps persuasive. It was exclusively concerned with whether
a guy wire was exposed to vehicular traffic. Moreover, Phelps made clear that even if
evidence could be mounted to show that the area was exposed to pedestrian traffic, this
showing would not establish that the area also was exposed to vehicular traffic. In contrast,
the issue presented to this Court, as framed by the parties and the trial court, is whether the
guy wires were exposed to pedestrian traffic, not vehicular traffic. (See footnote 13) Consequently, we find
that the circuit court erred in holding that the defendants did not owe Mr. Smoot a duty to
place guy markers on the guy wires pursuant to Section 264E(1) of NESC.
Even though a child is a trespasser on the property of a
third party, he is not a trespasser as to one who maintains
electric wires either on or in such proximity to the lands of the
third person that the child while on such lands or objects on such
lands may come in contact with the wires.
Id.
The defendants contend that Sutton only prevents a utility company from
raising a landowner's defense of trespass when the issue involves electrical wires. Insofar
as the issue in this case involves guy wires, which do not carry electricity, the defendants
argue that Sutton's prohibition has no application. Defendants read Sutton too narrowly. It
is wholly illogical for the law to legitimately hold that a utility company cannot raise a
landowner's trespass defense, when it involves an electrical wire that runs across a utility
pole, but then hold that such a defense may be raised as to a guy wire that is also connected
to the exact same utility pole. (See footnote 14) Consequently, insofar as the defendants have acknowledged
that they did not own the land upon which Mr. Smoot allegedly trespassed, as it was owned
by Anna Farley, the decision in Sutton precluded the trial court from permitting the
defendants to rely upon the defense of trespass on Anna Farley's land. In light of the decision
in Sutton, we find that it was error for the trial court to allow the defendants to assert the
defense of trespass to land that they did not own.