Day on Torts
Plaintiff Martin was an apprentice lineman for Upper Cumberland Electrical Membership Cooperative. He agreed to help a neighbor move an electrical line to a barn. As the plaintiff climbed the electrical pole which had been installed by the neighbor, the pole fell over and the Plaintiff sustained serious injuries from the fall. The plaintiff filed suit against his neighbor alleging negligence in the installation of the pole. Specifically, the plaintiff alleged the pole had not been set at a sufficient depth to ensure stability. The neighbor defended claiming the accident was a result of the plaintiff’s failure to follow proper safety protocols and ensure the stability of the pole before climbing it.
During discovery, the plaintiff testified about the steps he took to ensure the safety of the pole before climbing it. Thereafter, the defense filed a motion for summary judgment supported by affidavits of experienced linemen who opined the plaintiff had not followed basic safety requirements. In response, the plaintiff submitted three affidavits to establish the subject pole had not been set at the proper depth per established standards and that the plaintiff had followed proper safety procedures in checking the stability of the pole before climbing it. The trial court granted the defendant neighbor’s motion for summary judgment finding (1) there was no material issue of fact and (2) despite the affidavits indicating the plaintiff had followed proper safety protocols before climbing the pole, the court was of the opinion he did not, (3) and that electrical work was an "ultrahazardous activity".
The Court of Appeals reversed noting that while they had several times noted that electricity was inherently dangerous they had never held it to be an "ultrahazardous activity". Moreover, the defendant’s injuries had not been caused by electricity but instead were caused solely by the fall. Second, the Court of Appeals concluded the plaintiff had established the neighbor had a duty to either ensure the safety of the premises or to warn the plaintiff of any dangers. Since the neighbor had been the one to actually set the pole, he was on notice of its depth. In addition, proof was adduced to show the neighbor had removed some dirt from around the pole thereby making it less stable. On the issue of whether the plaintiff had followed safety protocols, the competing affidavits created an issue of fact and had to be viewed in the light most favorable to the non-moving party. As for the defendant’s argument regarding the application of the contractor exception (a contract of repair is sufficient by itself to impart notice of a danger), the Court of Appeals noted that the plaintiff was not repairing anything but instead simply moving the line; therefore, the exception did not apply.
The case is Martin v. Melton, No. M2012-01500-COA-R3-CV (Tenn. Ct. App. Nov. 26, 2013). For other Tennessee case law on the duty owed to independent contractors working on premises click on the link. For Tennessee case law on premises liability generally click on the link.