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Nevada Power Co. v. Haggerty12/13/1999
fined the term "overhead line" as "a bare or insulated electrical conductor installed above ground." NRS 455.200(2). The dissent may have persuasive policy arguments in favor of including high voltage transformer equipment located in a basement of a building within the definition of "overhead line." However, the legislature did not make such an inclusion, and therefore this court has no business holding otherwise.
AGOSTI, J., with whom LEAVITT, J., agrees, dissenting:
I respectfully dissent. I would reverse the district court's order and remand the matter for trial.
Initially, I note that the majority has determined that Raymond Haggerty's injuries were not caused by contact with an overhead line within the meaning of NRS 455.200(2). It should stop there. Its conclusion that the overhead power line statutes create an independent duty to indemnify need not and should not be reached if the circumstances of this case do not bring it within the parameters of the overhead power line statutes. As stated in City of North Las Vegas v. Cluff, 85 Nev. 200, 201, 452 P.2d 461, 462 (1969), " his court is confined to controversies in the true sense. The parties must be adverse and the issues ripe for determination."
I also note that the issue of whether the power lines located in the Horseshoe Club's basement are "overhead line " within the meaning of NRS 455.200(2) was never raised in the district court. This issue was first raised on appeal in an amicus curiae brief filed by the Nevada Self-Insurers Association. For this reason, I believe that this court should not consider this issue at this time. See Diamond Enterprises, Inc. v. Lau, 113 Nev. 1376, 1378, 951 P.2d 73, 74 (1997) ("It is well established that arguments raised for the first time on appeal need not be considered by this court.").
While I agree with the majority that NRS 455.240 permits indemnification if the provisions of NRS 455.230 are violated, I dissent because I believe that the electrical equipment which caused Haggerty's injuries does fit within the definition of an overhead power line.
I agree with the majority that the term "above ground" is subject to a variety of interpretations. I disagree that in the context of the statute in question, "above ground" excludes a basement. A worker standing in a basement is certainly standing above the ground below his feet. And the power line located near the roof of a room in a basement is certainly overhead in the sense that it is above the worker. I also believe that nothing in the language of NRS 455.200(2) compels the conclusion that the line must be in the open air, outside or above sea level. The simplest and best interpretation of this statute is that "above ground" means not buried.
An important purpose of the overhead power line statutes is to promote worker safety. This purpose is best accomplished if an employer is provided with an economic incentive to notify the applicable utility whenever an employee must work within close proximity to a power line maintained by the utility.
This court has consistently determined that a statute with a protective purpose should be liberally construed in order to effectuate the intended protection. For example, in Tobin v. Gartiez, 44 Nev. 179, 191 P. 1063 (1920), this court interpreted a statute which prohibited unauthorized grazing on the land of a person with "legal title." Id. at 186-87, 191 P. at 1065. This court determined that "legal title" included a lessee because the statute was enacted to protect those with a right to the exclusive occupation of the land. Id.
This court interpreted a mining statute in Ex Parte Douglass, 53 Nev. 188, 295 P. 447
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