Before Steadman and Ruiz, Associate Judges, and Mack, Senior Judge.
The opinion of the court was delivered by: Steadman, Associate Judge
Appeal from the Superior Court of the District of Columbia
(Hon. Shellie F. Bowers, Trial Judge)
Kevin Word *fn1 brought suit alleging negligence and strict liability against Potomac Electric Power Company ("PEPCO") for injuries suffered during an electrical explosion. *fn2 The trial court granted a directed verdict for PEPCO on the strict liability claim at the close of plaintiff's case, and the jury returned a verdict for PEPCO on the negligence claim, indicating through special interrogatories that it did not find PEPCO to be negligent. We affirm the directed verdict on the strict liability claim. However, we conclude that the trial court erred in striking testimony of plaintiff's expert witness that PEPCO had violated an applicable industry standard and that a new trial is therefore required on the negligence claim.
Kevin Word was employed as an electrical mechanic by the Washington Area Metropolitan Transit Authority ("WMATA") when he was injured on the job as a result of an electrical explosion at the Anacostia Metro subway station's south vault room. The south vault room is a point of delivery for high voltage electricity sold by PEPCO to WMATA. This WMATA vault room contains electrical switchgear, which takes high voltage power from the utility, PEPCO, and transforms it to a lower working voltage and distributes electrical power through circuits to provide energy throughout the WMATA metro station building. The switchgear assembly is a series of connected cabinets or cubicles that house fuses, switches, transformers, and other electrical equipment. The first of these cubicles is the "incoming feeder cubicle," which accepts PEPCO's high voltage lines. These lines enter into the top of the incoming feeder cubicle and are connected to equipment therein. As they enter the feeder cubicle the 13,000-volt lines are "stepped down" to 480 volts or less through transformers located in the adjoining cubicles. WMATA disperses the energy at this lower voltage to different circuits used to operate the metro station.
A PEPCO project engineer, Michael Maxwell, testified that PEPCO played no role in the construction or design of the vault room and that WMATA owns the switchgear assembly including the incoming feeder cubicle into which the PEPCO lines feed. *fn3 During the construction of vault rooms, it was PEPCO policy to place locks on the incoming feeder cubicles to prevent construction workers from inadvertently entering a feeder cubicle and touching energized parts; however, after construction, testing, and inspection was completed, PEPCO's policy was to remove the locks. There was testimony from other witnesses that there was no lock on the incoming feeder cubicle in the south vault of the Anacostia station at the time of the explosion and that PEPCO had in fact removed the temporary construction lock from the cubicle.
On the day of the explosion, Word was called to the vault room with his supervisor and partner, Roger Fowler, to trouble-shoot a problem. They were examining the electrical equipment in the vault. The door to the incoming feeder cubicle housing PEPCO's incoming feeder line was open, blocking the passageway as Word approached, holding a hand-held volt meter rated for 750 or 1,000 volts in one hand and a flashlight in the other. Word testified that as he reached to close the door the equipment inside exploded, engulfing him in a super-heated fireball and burning him severely.
Word's primary contention at trial was that the standard of care required PEPCO to keep the incoming feeder cubicle locked and secure and accessible only to designated personnel and that PEPCO was negligent in failing to keep the incoming feeder cubicle locked and in removing its temporary construction lock. Word also contended that PEPCO was liable for not maintaining a safe workplace for him under the Industrial Safety Act and that PEPCO was strictly liable in tort as a seller of electrical voltage or current which was defective and unreasonably dangerous and caused Word's injuries.
PEPCO's primary defenses were that PEPCO had no duty to lock the incoming feeder cubicle under industry standards and that Word himself caused the explosion and his injuries by trying to test a 13,000 high voltage line with a low-rated voltage meter. Further, PEPCO maintained that Word did not advance any evidence to explain how the explosion occurred. PEPCO witnesses testified that an "arc" explosion occurred in this case, and that for such an explosion to occur, something would have had to touch the energized equipment in the cubicle or the lead to the volt meter that Word was holding would have had to be brought within 1/4 inch of the energized equipment.
Following the Conclusion of Word's case, PEPCO moved for a directed verdict on the product liability claim. The trial court granted the motion, concluding that there had been no showing of product defect. The jury returned a verdict for PEPCO on the negligence and Industrial Safety Act claims. Special interrogatories indicated that the verdict on the negligence claim was based on the jury's finding that PEPCO was not negligent. *fn4
In setting forth PEPCO's duties and, arguably, the standard of care for the negligence claim, the parties focused on two industry codes that are potentially applicable to this situation. One is the National Electrical Safety Code (NESC) and the other is the National Electrical Code (NEC). PEPCO's expert, Allen Clapp, testified that the NESC applies to power utilities such as PEPCO and that the NEC did not apply here. Word's expert, Wallace O. Faison, was of the view that, although the NESC is primarily applicable to utilities, the NEC applies to utilities when they go into buildings in certain circumstances, and that the NEC was the applicable code in this case, not the NESC.
Both experts, however, acknowledged that the two codes had essentially the same requirements with regard to locking the type of energized equipment involved in the context of this case. Their disagreement was in what was required, in particular whether PEPCO was responsible for securing the area and whether the incoming feeder cubicle itself was required to be locked as opposed to the outer vault. *fn5 PEPCO's expert, Clapp, contended that the standard required the vault itself to be locked and access limited to authorized and qualified personnel, *fn6 but that the incoming feeder cubicle itself need not be locked but only secured, for example by a latch, so that the door would not fly open. Word's expert, Faison, took the position that PEPCO was required to keep the incoming feeder cubicle locked.
A key issue on appeal is whether the trial court erred in its ruling, some two weeks after the close of Faison's appearance, that Faison's testimony that PEPCO had violated the locking requirements of NEC 110-34 should be stricken. The trial court did so in the belief that plaintiff's counsel had asserted during the course of Faison's testimony that Faison would not be asserting any violation of NEC 110-34 and thus had waived any right to make that argument. To ...