East Central Electric Cooperative v. Robert Gordon Equipment, Inc.

McKAY, Circuit Judge. An employee of the defendant Robert Gordon Equipment Company was electrocuted when a company gin pole truck near which he was working came in contact with an overhead electric line owned and maintained by plaintiff East Central Electric Cooperative. The plaintiff East Central settled a claim brought against it by the estate of the defendant’s employee and then brought this action for contribution and indemnification based on Oklahoma StatAnn. tit. 63, §§ 981-87 (West 1984). Section 981 prohibits any person, firm, corporation or association from performing or permitting activity during which a person or employee may be placed within six feet of any high voltage overhead electrical line. Section 984 provides that any employer who violates this provision shall be liable to the owner or operator of the high voltage line “for all liability incurred by such owner or operator as a result of any such accidental contact.” The undisputed facts at trial showed that this statute had been violated. The district court therefore directed a verdict in favor of East Central for full indemnity of the liability incurred as a result of the accident, even though the high voltage lines were in violation of the National Electric Safety Code in that the power lines were a foot and a half lower than required by the code. Despite its directed verdict for full indemnity, the court allowed the jury to return a verdict on degrees of fault. The jury found the accident to have been 80 per cent the result of East Central’s violation of the National Electric Safety Code and 20 per cent the result of Robert Gordon Equipment Company’s violation of the six-foot rule. On appeal Robert Gordon raises several challenges to the district court’s directed verdict. First, Robert Gordon argues that the principles of comparative negligence and of contribution among joint tort fea-sors — which had not been adopted by Oklahoma at the time section 984 was enacted, but since have been — modify the application of section 984 so as to preclude the electric company from escaping liability for what was indisputably negligence on its part. Robert Gordon argues that, by adopting statutes implementing contribution among joint tort feasors and comparative negligence, Oklahoma has made a shift in the basic framework of its tort law. The defendant argues that when section 984 is read in light of this basic shift it must be given a different interpretation from what it appears to plainly mean. On the question of the statute’s asserted incongruance with the more recently adopted comparative negligence and contribution statute, the legislature provided, in enacting the latter statute, that “[tjhis act does not impair any right of indemnity under existing law. When one tort feasor is entitled to indemnity from another, the right of the indemnity obligee is for indemnity and not contribution, and the indemnity obligor is not entitled to contribution from the obligee for any portion of his indemnity obligation.” Okla.Stat.Ann. tit. 12 § 832(F) (West Supp.1984). Since it is undisputed that section 984 provides that the utility company is entitled to indemnity for all liability incurred as a result of the violation of the Act, if and to the extent section 984 applies in this case, it does not conflict with the contribution statute, and Robert Gordon is not entitled to any contribution from East Central. The further question arises, however, whether and to what extent section 984 applies to the facts of this case. While the statute could be read to immunize electrical companies from any liability whenever a violation of the six-foot rule has contributed to an injury no matter how grossly negligent the company had been in maintaining its property, the better interpretation, as East Central correctly points out, is that the statute entitles it to indemnity only for liability incurred “on account of violations of the Act.” We are in agreement with this interpretation of section 984. This interpretation of the Act is bolstered by Oklahoma’s recognition .of the general rule that a plaintiff responsible for a violation of law cannot recover damages where such violation contributed as a proxi [664] mate cause to the injury of which he complains. Kimery v. Public Service Co. of Oklahoma, 622 P.2d 1066, 1070 n. 3 (Okla. 1980). East Central as plaintiff in this law suit is responsible for violation of the federal regulations on height of electric power lines, and it would be improper to allow plaintiff in this case to recover against Robert Gordon that portion of the liability which resulted from its violation of the federal law. The jury, by its verdict, found that this accident was caused 80 per cent by East Central’s failure to comply with the federal regulations and only 20 per cent by Robert Gordon's failure to comply with the six-foot rule. Therefore, only 20 per cent of East Central’s liability resulted from violations of the Act. The judgment of the district court is modified. East Central is entitled to recover from Robert Gordon only 20 per cent of the total liability incurred as a result of this unfortunate accident.