Martel v. Montana Power Co.

752 P.2d 140 (1988)

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Nature of the Case

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Facts

On July 7, 1979, P suffered permanent injuries by being electrocuted when a portion of his body came within a few inches of an electric power transmission line carrying 100,000 volts. P, who was 19 at the time of the accident, was drinking with friends and after one other person climbed the tower, P also climbed it. The evidence is clear that P did not touch the line. But, his proximity to the line caused electricity from the line to arch to his body causing serious injury. To climb the tower one must take a step from the ground to the footing, then to a bracket 17' from the concrete footing, then to another bracket 2' 3/4' above, then to a bolt step 4' 6 1/4' above that. Beyond that is a series of bolt steps leading to the top of the tower. No barricades surrounded the tower. A wooden sign was near the tower. The sign had been painted over, but the word 'danger' was still visible. The substation was built prior to 1920 and D acquired it in 1974. D employees drove by the tower site at least once a month to examine the site. One employee and the town marshal offered testimony that neither had ever seen children or any other unauthorized people on the tower. The trial court ruled that P established a prima facie case of willful or wanton misconduct on the part of defendant power company. Although the court instructed the jury that they could find that D had acted willfully or wantonly, the court refused P's proposed instruction that comparative negligence was not an issue if they found the defendant had acted willfully or wantonly. The jury found damages of $290,000 and P 75% and D 25% negligent. P appealed.