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Yampa Valley Electric Association Inc. v. Telecky9/27/1993
rical Association, Inc. ("Yampa Valley") is entitled to an instruction creating a rebuttable presumption that compliance with the National Electric Safety Code ("NESC") constitutes conduct in conformity with the minimum safety requirements of the electrical industry.
A
Instruction 20 is defective for the simple reason that it creates a rebuttable presumption that compliance with the NESC is equivalent to "accepted good engineering practice in the electric industry." In my opinion, it is only the use of this phrase that renders Instruction 20 flawed because the characterization of a party's compliance with industry standards as congruent with "accepted good engineering practice" finds support in neither statutory nor common law.
It is clear, however, that the common law rule recognizes that compliance with accepted industry standards amounts to conduct corresponding to the minimum safety requirements of a given industry. See, e.g., Meisner v. Patton Elec. Co., Inc., 781 F. Supp. 1432 (D. Neb. 1990); Kirkendall v. Harbor Ins. Co., 698 F. Supp. 768 (W.D. Ark. 1988), aff'd, 887 F.2d 857 (8th Cir. 1989). See also W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 36, at 233 (5th ed. 1984), and Restatement(Second) of Torts § 288C cmt. a (1965). Furthermore, the provisions of the NESC have been specifically recognized as the accepted industry standards for the electrical industry. See, e.g., Cerretti v. Flint Hills Rural Elec. Coop. Ass'n, 251 Kan. 347, 837 P.2d 330 (Kan. 1992); Martel v. Montana Power Co., 231 Mont. 96, 752 P.2d 140 (Mont. 1988); Sulpher Springs Valley Elec. Coop. Inc. v. Verdugo, 481 P.2d 511 (Ariz. App. 1971); Kemp v. Wisconsin Elec. Power Co., 44 Wis. 2d 571, 172 N.W.2d 161 (Wis. 1969); and Gladden v. Missouri Public Serv. Co., 277 S.W.2d 510 (Mo. 1955).
Thus, I am of the opinion that on retrial, Yampa Valley is entitled to an instruction which is identical to Instruction 20 with the offending phrase "accepted good engineering practice in the electric industry" eliminated and replaced with the phrase "the minimum safety requirements of the electric industry."
Therefore, I specially concur.
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