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LAMB v. CITY OF ELSMORE8/6/1993
This is a personal injury action brought by Donald L. Lamb against the City of Elsmore, Kansas (City). Lamb was burned by electrical shock when working on telephone lines for his employer, Craw-Kan Telephone Cooperative (Craw-Kan). Lamb appeals the summary judgment entered in favor of the City. Lamb contends the court erred in concluding (1) the City was immune from liability under the discretionary function exception of the Kansas Tort Claims Act, K.S.A. 75-6104(e); (2) Lamb was a licensee as to the City and, therefore, was owed no duty by the City other than to refrain from willfully or wantonly injuring him; and (3) the City was "not guilty of gross and wanton negligence nor did it willfully or wantonly injure" Lamb.
The City operates an electrical public utility within its corporate limits. The City buys electricity from Kansas Gas and Electric Company and sells it to utility customers residing in the City. Both the City and Craw-Kan own utility poles within the city limits, and, by agreement, they jointly use each other's poles.
In the winter of 1988-89, the City experienced problems with squirrels shorting out fuses on top of the transformers located on the utility poles. The fuses were difficult to replace because they were mounted on a crossarm approximately 35 feet above the ground. The replacement of fuses was accomplished by using a 32-foot "hot stick" and was especially difficult if it was windy or rainy. In order to facilitate the replacement of fuses, the Elsmore City Council hired Dean Huff in January 1989 to lower the fuse cutouts from the top crossarm of the utility poles to a new crossarm below the transformers. When the fuse cutouts were lowered, new insulated wiring was installed from the transformer to the cutouts and from the cutouts to the transmission lines. The new lower crossarm to which the transmission wires and fuse cutouts were attached was located below where the telephone wire was connected to the utility pole. Although controverted, there is evidence this new configuration violated various safety standards, including the National Electrical Safety Code (NESC). The parties also dispute whether the NESC is even applicable to the City's actions.
On May 10, 1989, in response to a Craw-Kan customer who had requested repair services because his telephone had no dial
tone, Lamb climbed one of the City's utility poles to check the telephone line. Lamb did not check first to see whether the electrical lines on the pole were energized. Lamb noticed that fuses and new lead wires had been installed in close proximity and below the telephone line. Because inadequate clearance between telephone lines and high-voltage electrical lines can interfere with transmissions along telephone lines, Lamb decided to lower the telephone line. While attempting to lower the telephone line, Lamb apparently came in contact with an electrical line and was burned by an electrical shock of 7,200 volts. Lamb subsequently brought this action against the City, alleging the City was negligent in lowering the fuse cutouts.
I. Discretionary Function Exception.
Lamb contends the City's action in lowering the fuse cutouts was not a discretionary function and, therefore, the City is not immune from liability as a matter of law under the Kansas Tort Claims Act, K.S.A. 75-6101 et seq. The court found the City's actions fell within the discretionary function exception because the court could not identify any "specific, mandatory established guidelines" which the City's employees were to follow when lowering the fuse cutouts.
"This court's review of conclusions of law is unlimited." Hutchinson Nat'l Bank & Tr. Co. v. Brown, 12 Ka
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