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10/02/84 Raymond A. Stancill, v. Potomac Electric Power Co.

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT


October 2, 1984

KEFAUVER, DECEASED, APPELLANTS

v.

POTOMAC ELECTRIC POWER CO., A CORPORATION APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA (CIVIL ACTION NO. 80-03160) 1984.CDC.261

UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT

RAYMOND A. STANCILL, ALLYSON B. KEFAUVER, Personal

Representative of the Estate of John William

APPELLATE PANEL:

Robinson, Chief Judge, Mikva, Circuit Judge, and MacKinnon, Senior Circuit Judge. Opinion Per Curiam.

PER CURIAM DECISION

Appellants protest that District Court's award of summary judgment to Potomac Electric Power Company (Pepco) in a diversity action for damages arising out of an electrical accident in Maryland. Raymond A. Stancill was injured and John William Kefauver was killed when an aluminum ladder they were handling came into contact with an uninsulated high-voltage distribution line owned and maintained by Pepco. The District Court ruled that they assumed the risk by failing to comply with Maryland's High Voltage Line Act, *fn1 and thus foreclosed any recovery. We affirm, likewise, on the basis of assumption of risk, but for a somewhat different reason from that stated by the District Court. I

Stancill and Kafauver were skilled in the roofing and guttering trade, *fn2 and experienced in the use of aluminum ladders. *fn3 In 1980, they were hired by Charles and Lisa Itte to install gutters and downspouts at their home in Takoma Park, Maryland. *fn4 Neither Stancill nor Kefauver notified Pepco that at some point they would be working on a gutter within ten feet of the distribution line. *fn5

The two men arrived at the Itte home on May 24, 1980, and unloaded two 40-foot aluminum extension ladders from their truck. They then commenced the process of measuring and installation. As they began to maneuver one of the ladders *fn6 against the house, Stancill checked for overhead power lines. *fn7 He saw the distribution line strung diagonally across the front lawn, *fn8 and noticed that it had a different appearance from the service lines extending from a utility pole to the house. *fn9 Kefauver, holding the ladder, began to position it, and in the process the ladder either touched the distribution wire or came within arcing distance of it. Stancill suffered third-degree burns and Kefauver was electrocuted. *fn10

Appellants *fn11 brought suit in the District Court. Jurisdiction was invoked solely on diversity of citizenship. *fn12 Appellants charged gross negligence on Pepco's part, and sought compensatory and punitive damages. After extensive discovery, Pepco moved for summary judgment, and the court granted the motion. *fn13 The court concluded that the failure of Stancill and Kefauver to abide by Maryland's High Voltage Line Act *fn14 constituted an assumption of the risk and barred recovery. *fn15 This appeal followed. II

The substantive law applicable to this diversity action is that of Maryland. *fn16 The law of that state recognizes potential liability for harm caused by negligence, whether simple *fn17 or gross *fn18 in character. Appellants alleged that Pepco was grossly negligent in maintaining the uninsulated high-voltage distribution line. *fn19 An action based on either type of negligence is defeated by proof that the plaintiff assumed the risk *fn20 or, perhaps, that he was contributorily negligent. *fn21

Accepting as true, for the time being, appellants' allegation that Pepco was grossly negligent, Pepco asserts that Stancill and Kefauver assumed the risk as a matter of Maryland law. *fn22 Since the District Court upheld Pepco in that regard, *fn23 our task is to determine whether, in the circumstances here, Maryland law sustains that defense.

The Maryland courts have identified three elements to be established before a risk will be deemed legally assumed. The defendant must show that the plaintiff (1) had knowledge of the risk of danger, (2) appreciated that risk and (3) voluntarily exposed himself to it. *fn24 Appellants argue that the evidence at trial did not measure up to these requirements. *fn25 We reject this contention.

A careful reading of the record discloses beyond doubt that both Stancill and Kefauver, within the contemplation of Maryland law, knew of the existence and location of the distribution line. Kefauver had visited the Itte home for the purpose of estimating a price for installation of new gutters and downspouts. *fn26 Surely, in conducting this survey, he had abundant opportunity to observe the unobstructed distribution line. *fn27 Moreover, Stancill testified that when he and Kefauver moved the ladder to the front of the house, Kefauver saw the line. Stancill further testified that he, too, saw the overhead power lines, *fn28 noticed the distance between the top of the ladder and the distribution line, *fn29 and even realized that the wire was uninsulated. *fn30 These undisputed facts dispel any notion that either man was unaware of this source of potential danger.

The record makes equally plain that both Stancill and Kefauver appreciated the risk posed by an aluminium ladder in close proximity to an energized high-voltage line. Maryland's standard on this score is objective: the risk is appreciated if "'any person of normal intelligence in [the plaintiff's] position must have understood the danger.'" *fn31 And the Maryland high court has long considered electricity a generally-known and well-understood potential peril that anyone of adult age must be taken to comprehend. *fn32 Maryland law thus compels the conclusion that both men must be charged with appreciation of the risk.

It follows that Stancill and Kefauver voluntarily assumed the risk within the meaning of the applicable Maryland law. "When a person undertakes work which exposes him to obvious dangers which he knew or had the opportunity to know, he must" under the law of that state "be considered as having assumed such risks, and he cannot recover for any injuries resulting therefrom." *fn33 The case before us presents exactly that situation, *fn34 though certainly it need not have. Simply by complying with procedure specified in Maryland's High Voltage Line Act, *fn35 the risk presented by the distribution line could have been completely eliminated. In declining to pursue that alternative, Stancill and Kefauver, in the words of the Maryland court, "preferred convenience to safety and knowingly took the chance." *fn36 The District Court did not err when it held that appellants' action was barred by the Maryland doctrine of assumption of risk. *fn37

The judgment appealed from is accordingly

Affirmed.

CASE RESOLUTION

Affirmed.


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