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Yampa Valley Electric Association Inc. v. Telecky9/27/1993
This wrongful death action was brought by Gloria Telecky to recover damages for the electrocution death of her husband, Marvin, by electric power lines that were constructed and maintained by the Yampa Valley Electric Association (Yampa Valley). We granted certiorari to review the court of appeals decision in Telecky v. Yampa Valley Electric Association, 837 P.2d 253 (Colo. App. 1992), which reversed a judgment entered on a jury verdict in favor of Yampa Valley, and ordered a new trial.
We granted certiorari to review two issues:
Whether a jury must be informed as to the circumstances sufficient to rebut the presumption created by Instruction 20; and
Whether Instruction 20 implied to the jury that compliance with an administrative standard was equivalent to exercising the highest degree of care possible.
Both issues are moot if Instruction 20 was improperly given. Because we decide that both the trial court and the court of appeals erred in concluding that Instruction 20 was proper in this case, we need not, and do not, decide the issues set forth by the parties for review on certiorari. The two issues we decline to address are necessarily conditioned on the premise that the court of appeals correctly held that Instruction 20 was proper in this case as an accurate statement of the applicable law, a Conclusion which we now hold was erroneous.
The primary issue on appeal is whether the trial court erroneously gave Instruction 20 to the jury regarding the presumptive effect of Yampa Valley's compliance with the National Electric Safety Code (NESC) in the construction and maintenance of the power line that crossed the Telecky property. We affirm the order of the court of appeals granting a new trial, but reverse, in part, because of the directions given for the new trial, and return this case to the court of appeals for remand to the trial court for a new trial consistent with the directions contained in this opinion.
I
On October 13, 1986, Marvin Telecky was electrocuted when the aluminum ladder he was using to perform maintenance work on his two story home came in contact with an uninsulated 7,200 volt high tension electric power line. The power line, which was constructed and maintained by Yampa Valley, ran from the street in front of the Telecky residence, across the side yard of the property, to a pole and transformer in the backyard.
Marvin Telecky's widow filed a wrongful death action against Yampa Valley that was predicated on the recognition that "electricity is one example of an instrumentality requiring an enhanced degree of care by those supplying it to others for domestic and commercial use." Blueflame Gas, Inc. v. Van Hoose, 679 P.2d 579, 588 (Colo. 1984). Therefore, the negligence standard of care to which Yampa Valley is to be held in this case is that of "the highest degree of care which skill and foresight can attain consistent with the practical conduct of its business under the known methods and the present state of the particular art." Denver Consol. Elec. Co. v. Simpson, 21 Colo. 371, 376-77, 41 P. 499, 501 (1895); accord Fed. Ins. Co. v. Public Serv. Co., 194 Colo. 107, 570 P.2d 239 (1977). Telecky alleged in her complaint that Yampa Valley negligently failed to: (1) warn Marvin of the dangers of the power line; (2) bury the power line below ground; (3) insulate the power line; (4) provide adequate clearance around the power line; (5) reduce the voltage in the power line before running it across the Telecky property; and (6) place the uninsulated wire at a greater di
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