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Sewell v. Public Service Co.11/21/1991
Plaintiff, Sheila Sewell, on behalf of herself and her children, instituted an action for the alleged wrongful death of her husband against defendant, Public Service Company of Colorado (PSC). The claim was based on her assertion that PSC was negligent in not giving warning of the existence of certain power transmission lines with which the private aircraft in which her husband was a passenger collided. The trial court, concluding that the circumstances demonstrated that PSC owed no duty of due care to plaintiff's decedent, granted PSC's motion for summary judgment. From that judgment plaintiff appeals, and we reverse.
The aircraft accident that resulted in the death of plaintiff's husband occurred at a point about one-half mile west of the developed portion of Red Cliff, Colorado. At that location the Eagle river has formed a canyon at the bottom of which there is both a railroad line and a highway.
Spanning this canyon is a motor bridge. The floor of this bridge is approximately 200 feet above the floor of the canyon.
This bridge is west of power transmission lines, consisting of three conductors, which were originally installed by PSC in the late 1920's or early 1930's. The lines cross the canyon at an oblique angle to, and at a substantially higher elevation than, the more westerly motor bridge. None of these three lines had colored balls or other markings to warn of their existence at the time of the accident.
There may exist some dispute as to the exact elevation of these lines and their length between the two towers, one on each side of the canyon, to which they are attached, as of the date of the accident. Shortly after the collision with these transmission lines, PSC's supervisor of the repair work estimated that the lines, at their highest point, were 500 feet above the floor of the canyon and that the span between the two towers was about 2000 feet. He insisted that, in repairing the three lines, each of which had been severed in the accident, his crew used approximately 6000 feet of wire. In a survey conducted sometime later, however, PSC estimated that the highest point of the lines had been some 425 above the floor of the canyon and that they had spanned a total of only 969 feet between the two towers.
This post-accident survey also estimated that the transmission lines were in excess of 400 feet from the motor bridge at their nearest point (considering both horizontal and vertical distance). Because the bridge and the lines exist at an angle, each to the other, the reasonable inference is that the lines, for most of their span over the canyon, were considerably further than 400 feet from the bridge.
On the late afternoon of the day of the accident, two witnesses observed the aircraft as it flew in a general westerly direction over the residential area of Red Cliff and along the canyon toward the bridge and the sun. Both these witnesses estimated its altitude, as it passed over or near this residential area, as between 600 and 900 feet (200 to 300 yards) above ground level. As it flew toward the bridge, they say that it began to climb, and then it turned, dived, and crashed. Neither realized at the time that it had struck PSC's transmission lines before crashing.
In asking the trial court to enter summary judgment in its favor, PSC relied, among other things, upon two regulations promulgated by the Federal Aviation Administration (FAA), found at 14 C.F.R. ยง 91.119(b) and (c) (1991), which regulate the height of aircraft in flight. The first regulation requires aircraft to maintain an altitude of 1,000 feet above the highest obstacle when flying "over any congested area of a city, town, or settlement." The seco
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