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Savage v. Kansas City Power & Light Co.

Court of Appeals of Missouri, Western District, Third Division

January 17, 2017

NICK SAVAGE, Appellant,

         Appeal from the Circuit Court of Clay County, Missouri The Honorable Larry D. Harman, Judge

          Before: Alok Ahuja, P.J., Victor C. Howard, and James Edward Welsh, JJ.

          James Edward Welsh, Judge

         Nick Savage appeals from the circuit court's judgment following a jury trial in which the jury assessed zero percent fault to Kansas City Power and Light (KCP&L) and 100 percent fault to Savage on Savage's personal injury claim against KCP&L. Savage contends that the circuit court erred in submitting KCP&L's comparative fault instruction to the jury because the instruction was not supported by substantial evidence and attributed a duty to him that did not exist. We affirm.

         The evidence established that Savage lived at the corner of NE 45th Street and Bellefontaine in Kansas City, Missouri, which is within the Northland Service Center of KCP&L's electrical grid. On the north side of Savage's home, a primary, uninsulated distribution power line (the primary line) runs along 45th Street. The power from this primary line conducts a high voltage electrical current, too high to go to a house directly. Therefore, the voltage from the primary line is sent through a transformer that reduces the voltage, which is then ran along secondary lines. The individual houses in the area get electricity off of secondary lines from service poles via electrical lines called service drops. For Savage's house, the service pole is on the opposite side of the yard from the primary line in the southeast corner of his backyard. The service drop line runs essentially diagonal across Savage's yard from the service pole to Savage's home.

         On Sunday, August 7, 2011, a strong thunderstorm damaged a large silver maple tree in Savage's backyard. The tree sat on the side of the yard closest to 45th Street and close to the primary line. As a result of the storm, a limb from the tree fell on the service drop line that ran across Savage's backyard. The weight of the limb pulled the service drop line down and pulled the electrical connection off of Savage's house. Although the weather head connection and electrical meter were pulled off Savage's house, the service drop line remained connected. The loose and damaged service drop line wire was down across Savage's yard and draped over a children's swing set. As a result of the damage, Savage did not have any electrical power in his house.

         Savage telephoned KCP&L and reported that he had no electrical power in his house and that the electrical box and the service drop line had been ripped off the back of his house because of the storm damage. Later that evening, a KCP&L lineman arrived to investigate the circumstances. The lineman testified that he could not recall working at Savage's house, but Savage testified that the lineman left the live service drop line down, told Savage to stay out of the backyard, and told him that someone would be out in the next couple of days to take care of things. When Savage inquired who would be responsible for cleaning up the tree and getting the electrical box and connection back on the house, the lineman told Savage that the homeowner would be responsible for doing those things.

         The next day, on Monday, August 8, Savage called KCP&L again, reported that the downed service drop line was making some noises, and asked when KCP&L would be sending someone out to work on it. KCP&L said that they would send someone out to get it taken care of and told Savage that he was responsible for taking care of the tree "and getting everything fixed back the way it should be."

         On Tuesday, August 9, KCP&L Lineman Gerald Peterson went to Savage's house to disconnect the live service drop line. He removed the live service drop line that had been draped on the swing set and coiled it up and put it at the foot of the service poll. At that point, Peterson let Savage know that it was safe to work in the backyard. Peterson told Savage that it was his responsibility "to put the riser and the new meter can [up]" and "to mount the riser up to the weather head" with the wire to give KCP&L a point of attachment for the service drop. Peterson informed Savage that, once all of that was done, Savage should call KCP&L and someone would come back and reconnect his service line to the weather head.

         At trial, Peterson did not deny that he told Savage that he would be responsible for cleaning up the tree; Peterson merely said he did not remember telling Savage that. Peterson said that he did not recall any conversations with Savage about his plans for trimming the tree, but Peterson said nothing was said about Savage climbing and trimming trees. Peterson also said that he did not have any conversations with Savage telling him that he needed to notify KCP&L before trimming any tree. Peterson acknowledged that he did not pay attention to how many broken limbs there were, how many broken tree limbs were in the tree hanging loose, or whether there were any tree branches growing off the big tree that were still growing over the service drop area of Savage's house. Although Peterson said that he could not remember whether there were any tree limbs hanging over the area where the service drop line would be, Peterson said that, before attaching the service drop line, "you usually look up and see if there's anything in the way, " and, from what he could tell, "it was clear." Peterson said that, if the point of attachment had been on Savage's house, he could have reattached the service drop line at that time. Peterson also said that he never looked at the branches of tree to see where they were in relationship to the primary line.

         Later that morning, Savage, with the help of his father, his brother, and a friend, began cleaning up the backyard. Savage cleaned up the area of the yard under where the service drop line would be restrung. Savage then took photographs of the area that showed that the yard beneath where the service drop line would be reconnected had been cleaned up. After cleaning up the service drop area, Savage decided to trim branches on the tree "that hung over the power line or where the drop line was supposed to go" and to "clean up all the limbs on [the] house side of the tree" to eliminate future problems. Savage used a ladder to climb up into the tree and used a small rope, tied from his belt to a small chain saw, to lift up the chain saw for use in the tree. After climbing into the tree, Savage climbed onto a large branch closest to the service drop and his house. Savage cut a couple of branches over the service drop area. He then moved to the "parent branch" of the tree to cut the "subject limb"[1] that resulted in his injuries. The "subject limb" had not been damaged in the storm. Savage acknowledged that he knew where the primary line was and knew that the "subject limb" could come into contact with the primary line when he was cutting it. Savage said, however, that he believed the "subject limb" would only brush against it. As Savage prepared to cut the "subject limb, " he wrapped his left arm and left leg around the trunk of the "subject limb" to secure himself, and, with his right foot standing on the "parent branch" and holding the chain saw above his head, he began cutting the "subject limb." Savage took no other precautions to prevent himself from falling out of the tree. When he cut the "subject limb, " the limb fell onto the high voltage primary line, conducting electricity, and electrocuting Savage. Savage was rendered unconscious and fell from the tree, falling about 25 feet.

         As a result of the incident, Savage suffered electrical burns to his left arm and left leg, and he had compression fractures at levels T-10 and T-11, resulting in the severance of his spinal cord leaving him paralyzed and losing the use of his legs.

         Savage never told Peterson that he intended to prune the tree near the primary line. According to Peterson's notes taken after Savage was injured, Peterson stated, "when I left that morning, nothing was said about the customer cutting trees." According to Peterson, if KCP&L had known Savage was going to prune the tree over the primary line, Peterson would have told Savage to contact a qualified tree service or to contact KCP&L for help.

         At trial, Savage acknowledged that one way to direct a cut branch away from electrical lines would have been to use a rope to pull it in the direction that you wanted to go. Savage acknowledged, however, that he did not do that when cutting the "subject limb." Savage also did not the cut the branch in a manner that it would tend to fall away from the overhead line. Savage's expert acknowledged that Savage did not make a clean cut of the subject limb; rather, Savage cut the limb so that it hinged and dropped in an arc into the primary line. According to Savage's own expert, a clean cut depends on doing an undercut first and then an overcut to prevent it from hinging.

         Savage filed a petition for damages against KCP&L for personal injuries resulting from the electrical shock that caused him to fall from the tree. Savage alleged that KCP&L maintained the primary uninsulated power line adjacent to Savage's Property; that tree limbs from Savage's tree were close to and above the primary line presenting an unreasonable risk of harm, and that it was reasonably foreseeable that persons would be trimming tree limbs of the tree in the backyard. Further, Savage alleged that the tree limb came into contact with the primary line because of KCP&L's failure to maintain a clearance between the tree limbs and the primary line. KCP&L alleged in its answer as an affirmative defense that Savage bore the responsibility for his injuries because he failed to notify KCP&L that he would be performing work in the trees near the power line.

         A jury trial was held on August 24, 2015, through September 2, 2015. Savage offered Instruction No. 6, a comparative-fault-modified verdict director instruction setting out disjunctive allegations of negligence by KCP&L, which was given by the court. Instruction No. 6 read:

In your verdict, you must assess a percentage of fault to [KCP&L] whether or not [Savage] was partly at fault, ...

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