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Homer Electric Assoc. v. Towsley (11/27/92), 841 P 2d 1042
<![CDATA[
Notice: This is subject to formal correction before
publication in the Pacific Reporter. Readers are
requested to bring typographical or other formal errors
to the attention of the Clerk of the Appellate Courts,
303 K Street, Anchorage, Alaska 99501, in order that
corrections may be made prior to permanent publication.
THE SUPREME COURT OF THE STATE OF ALASKA
HOMER ELECTRIC ASSOCIATION, )
) Supreme Court No. S-4563
Petitioner, )
) Trial Court No.
v. ) 3KN-87-1087 Civil
)
LYDIA TOWSLEY, Personal ) O P I N I O N
Representative of the )
Estate of HERSCHELL RAY )
TOWSLEY, (Deceased), )
)
Respondent. ) [No. 3901 - November 27, 1992]
______________________________)
Petition for Review from the Superior
Court of the State of Alaska, Third Judicial
District, Kenai, Charles K. Cranston, Judge.
Appearances: Bill Mellow, Juneau, for
Petitioner. Jeffrey M. Feldman and Kristen
Young, Young, Sanders & Feldman, Anchorage,
Jeffrey D. Jefferson, Nordstrom Steele &
Jefferson, Kenai, for Respondent. Toby N.
Steinberger, Assistant Attorney General,
Anchorage, Charles E. Cole, Attorney General,
Juneau, for Amicus Curiae State of Alaska.
Before: Rabinowitz, Chief Justice,
Burke, Matthews, Compton, and Moore,
Justices.
MATTHEWS, Justice.
COMPTON, Justice, dissenting.
I. INTRODUCTION
The Estate of Herschell Towsley (the Estate) is suing
Homer Electric Association (HEA) for wrongful death. The sole
issue presented by this petition concerns the interpretation of
AS 18.60.670(1) which prohibits the placement of "any type of
. . . equipment . . . that is capable of lateral, vertical, or
swinging motion, within 10 feet of a high voltage overhead
electrical line or conductor." The trial court ruled that AS
18.60.670(1) prohibits placing a crane where it is capable of
extending its boom to within ten feet of a power line. HEA
disagrees, arguing that AS 18.60.670(1) only prohibits placing a
crane within ten feet of a power line even if it is possible for
the boom to extend into the ten-foot area. We granted HEA's
petition for review. We agree with HEA and reverse the trial
court.
II. FACTS
Decedent Herschell Towsley worked as a laborer for
Rollins Truck and Tractor, a subcontractor on a project near
Homer. In May 1987 Towsley was holding the tag line of a pile
driver as a crane's lift line was moving the pile driver. The
lift line hit a power line owned and maintained by HEA.1 Towsley
was electrocuted.
The Estate claims that prior to the accident the
general contractor on the project advised HEA that the project
would require use of a crane near one of HEA's power lines. The
Estate claims that HEA advised the contractor that the work could
legally proceed as long as there was a ten-foot clearance between
the power lines and the crane.
After the accident the Estate sued HEA for wrongful
death. One theory of liability is that HEA was negligent per se
in failing to prevent persons working near HEA's power lines from
violating AS 18.60.670(1).2 The Estate moved for a ruling that
AS 18.60.670(1) prohibits placing equipment closer to power lines
than the maximum extension of the equipment plus ten feet. The
trial court so ruled. We granted HEA's petition for review.
III. DISCUSSION
A. Contentions of the Parties
Alaska Statute 18.60.670 provides in relevant part that
"[a] person . . . may not (1) place . . . machinery . . . that is
capable of lateral, vertical, or swinging motion, within 10 feet
of a high voltage overhead electrical line or conductor." The
trial court interpreted this language to prohibit placing
equipment in a location where any part of the equipment could
potentially come within ten feet of the power line. HEA argues
that the statute allows equipment to be placed where it is
possible for a part of the equipment to extend into the ten-foot
area, so long as no part of the equipment actually does.
Specifically, HEA argues that the trial court's
interpretation of AS 18.60.670(1) is wrong because it conflicts
with the plain meaning of the statute, conflicts with AS
18.60.675, runs contrary to federal interpretations of similar
federal laws, runs contrary to industry and Alaska Department of
Labor interpretations of AS 18.60.670, and would cause excessive
and unwarranted burdens on the construction industry.
Amicus Curiae, the State of Alaska, favors HEA's
interpretation. It argues that the plain meaning of
AS 18.60.670 does not prohibit the
placement of and operation of cranes just
outside of the 10-foot protective area. . . .
If the legislature wanted to prohibit the
placement and operation of cranes anywhere in
the vicinity of power lines so that the crane
could not possibly invade the 10-foot
protective area, it would have done so.
The State also argues that HEA's interpretation is consistent
with the Department of Labor's two-decade-old interpretation.
The Estate argues that the trial court's interpretation
is correct because safety laws should be broadly construed, HEA's
interpretation would render AS 18.60.670 superfluous, and the
trial court's interpretation is consistent with the Department of
Labor's longstanding construction of the statute.
B. Plain Meaning
Generally, the most reliable guide to the meaning of a
statute is the words of the statute construed in accordance with
their common usage. Lagos v. City & Borough of Sitka, 823 P.2d
641, 643 (Alaska 1991). However, even where the statutory
language considered alone seems to leave room reasonably for only
one meaning, we nonetheless may consult legislative history and
the rules of statutory construction, realizing that sometimes
language that seems clear in the abstract takes on a different
meaning when viewed in context. North Slope Borough v. Sohio
Petroleum Corp., 585 P.2d 534, 540 (Alaska 1978); State v. Alex,
646 P.2d 203, 208 n.4 (Alaska 1982). In such cases the
legislative history and rules of construction must present a
compelling case that the literal meaning of the language of the
statute is not what the legislature intended. University of
Alaska v. Geistauts, 666 P.2d 424, 428 n.5 (Alaska 1983) ("Where
a statute's meaning appears clear and unambiguous, . . . the
party asserting a different meaning has a correspondingly heavy
burden of demonstrating contrary legislative intent."); State v.
Alex, 646 P.2d at 208 n.4 (under Alaska's sliding-scale approach
to statutory interpretation, the more plain the language of the
statute the more convincing the evidence of contrary legislative
intent must be).
As noted, the trial court interpreted AS 18.60.670(1)
to prohibit the placing of equipment in a location where any part
of the equipment could come within ten feet of a power line. A
literal reading of the statute does not support this
interpretation. Read literally, AS 18.60.670(1) merely prohibits
equipment from being within ten feet of a power line. The Estate
does not cite to, and we have not found, any direct evidence that
the legislature intended a contrary meaning. Although, as
discussed below, the Estate argues that there is implicit
evidence that the legislature intended a contrary meaning, we
believe this evidence does not present a compelling case that the
legislature did not intend AS 18.60.670(1) to be interpreted
literally. Thus, we conclude that AS 18.60.670(1) should be
interpreted literally.
First, the Estate argues that the existence of section
312-20 of the 1969 Alaska General Safety Code is evidence that
when the legislature enacted AS 18.60.670(1) in 1972 it intended
the statute to provide the same protection as the code. Section
312-20 provided: "The operation of [equipment] when it is
possible to bring any part of the equipment within ten (10) feet
of high voltage lines is prohibited . . . ." (Emphasis
supplied.)3 Section 312-20 was repealed in 1973 by the
Department of Labor.
The Estate's assertion seems unlikely in view of the
language of AS 18.60.670(1). If the legislature had intended to
provide the same protection as the code provision it probably
would have copied the code provision verbatim or used similarly
clear language.
Second, the Estate argues that the purpose of the
statute is evidence that the legislature did not intend AS
18.60.670 to be interpreted literally. Specifically, the Estate
argues that the literal interpretation of the statute "is not
consistent with the policy of promoting public safety which
underlies the statute." Thus, the Estate argues that the trial
court's interpretation is the only "construction which preserves
[the statute's] usefulness." We disagree.
While the trial court's interpretation promotes a
higher degree of safety than the literal interpretation, the
latter does not render this statute useless. Section 670's
requirements, as with most safety rules, are a compromise between
competing safety and efficiency concerns. Although the literal
interpretation of the statute does not eliminate the possibility
of contact with a power line, it provides some margin of safety.
It also provides the construction industry with a greater degree
of flexibility when working near power lines than the trial
court's interpretation.4 This may be the balance that the
legislature intended when it enacted AS 18.60.670. Since the
plain meaning interpretation is not unreasonable, the fact that
the trial court's interpretation better promotes safety does not
justify departing from the literal interpretation of the statute.
Third, the Estate argues that the literal
interpretation of subsection (1) renders it meaningless in view
of subsection (2).5 The Estate argues that this provides
evidence that the legislature did not intend AS 18.60.670 to be
interpreted literally. To begin, we note that the Estate's
analysis may fairly be disputed. Its argument only succeeds if
"placing" equipment is comprehended in "storing, operating,
erecting, maintaining, moving, or transporting"it. But if that
is true, then the Estate's interpretation of subsection (1)
suffers from the same defect: it makes subsection (2)
functionless for if equipment can not be placed where it may come
within ten feet of a power line it is not necessary to prohibit
its storage or operation within ten feet of a power line. For
the purpose of evaluating the Estate's argument, however, we
assume that the Estate is correct in urging that the literal
interpretation of subsection (1) is redundant because subsection
(2) also prevents equipment from coming within ten feet of a
power line. While this would be a valid argument that the
legislature intended a different meaning than the literal
meaning, we conclude that it is not sufficiently strong to
overcome the presumption that the legislature intended the
statute to be interpreted literally. See State v. Alex, 646 P.2d
203, 208 n.4 (Alaska 1982).
As a general rule, a "`statute should be construed so
that effect is given to all its provisions, so that no part will
be inoperative or superfluous, void or insignificant.'" Alascom,
Inc. v. North Slope Borough, Bd. of Equalization, 659 P.2d 1175,
1178 n.5 (Alaska 1983) (quoting 2A C. Sands, Statutes & Statutory
Construction 46.06 (4th ed. 1973)). Application of this rule
suggests that the trial court's interpretation of subsection (1)
is correct because the court's interpretation avoids redundancy.
Nonetheless, it is our view that even in light of the rule of
construction disfavoring redundant interpretations, section
670(1) cannot reasonably be read as the trial court read it. The
actual language of subsection (1) falls so seriously short of
expressing a prohibition on placement of equipment where it
potentially might come within the ten-foot protected zone that
the fact that it may be redundant if construed literally is an
insufficiently compelling reason to persuade us that the statute
has another meaning.6
Redundancy in legislative drafting, as in other
writing, is not uncommon. White v. Roughton, 689 F.2d 118, 120
(7th Cir.), cert. denied, 460. U.S. 1070 (1982). The rules
governing use of the doctrine of negligence per se warn against
adopting a statute as a negligence standard if its meaning is so
obscure because of, for example, imprecise wording, that the
standard of care is not known to reasonable people in the same
position or trade as the defendant. Northern Lights Motel, Inc.
v. Sweaney, 561 P.2d 1176, 1184, aff'd on rehearing, 563 P.2d 256
(Alaska 1977); Ferrell v. Baxter, 484 P.2d 250, 263 (Alaska
1971). Care thus should be taken that the rule disfavoring
redundant interpretations is not used mechanistically. It should
not be employed in a manner that attributes obscure and
unintended meanings to a statutory provision. See 2A Norman J.
Singer, Sutherland Statutory Construction 46.06, at 120 (5th
ed. 1992) (stating that though a court should generally give
effect to every provision in a statute, it should disregard a
provision resulting from legislative inadvertence).
Moreover, a comparison to another section suggests that
the literal meaning of subsection (1) of section 670 is the
intended one. Alaska Statute 18.60.675 provides:
A person individually or through an
agent or employee may not operate a crane,
derrick, power shovel, drilling rig, hoisting
equipment, or similar apparatus, any part of
which is capable of vertical, lateral, or
swinging motion, unless the operator or the
operator's employer posts and maintains in
plain view of the operator, a durable warning
sign legible at 12 feet, that reads as
follows: "It is unlawful to operate this
equipment within 10 feet of high voltage
lines."
Section 675 applies only to equipment covered by section 670(1).
The warning mandated by 675 is the literal meaning of section
670(1), namely that the equipment may not come closer than ten
feet of a high voltage line. If the legislature had intended
670(1) to express a prohibition on placement of cranes where they
might be extended to within ten feet of a power line, it might
have mandated a sign stating that, for example, "[i]t is unlawful
to place or operate this equipment where it is possible for any
part of this equipment to come within ten feet of high voltage
lines." See State, Dep't of Highways v. Green, 586 P.2d 595, 603
n.24 (Alaska 1978) ("In some circumstances, the interpretation of
one provision is properly influenced by the content of another
provision addressing similar purposes or objects.").
Fourth, the Estate claims that the Department of
Labor's longstanding construction of AS 18.60.670(1) provides
evidence that the legislature did not intend it to be interpreted
literally. "When an agency's interpretation of a statute is long-
standing . . . it is entitled to some deference by this court."
State, Dep't of Revenue v. Alaska Pulp America, Inc., 674 P.2d
268, 277 (Alaska 1983). However, HEA also claims that the
Department of Labor's longstanding construction of AS
18.60.670(1) supports its respective construction. Both parties
cite to conflicting affidavits of Department of Labor employees
and construction industry experts to support their arguments.7
The affidavits are not helpful because they are in conflict.
However, regulations promulgated by the Department of Labor imply
that the Estate is wrong.
Section 05.140(a)(2)(D)(v)(b) of the Construction Code
provides:
(a) Crane and derricks.
(2) Crawlers, Locomotive and Truck Cranes.
(D) Operating Crew.
(v) The operating crew
shall consist of the designated operator plus
an attendant who shall act only as a safety
observer when the crane is in operation if
any one of the following criteria exists:
(b) If the
equipment is operating where any part is
capable of reaching within 15 feet of an
overhead power line in which case the
provisions of AS 18.60.670-695 apply[.]
This regulation and a similar one in the General Safety Code8 are
the only regulations addressing whether equipment can be located
where any part is potentially capable of touching an overhead
power line. They require a safety observer when that potential
is present. They do not, however, bar placement of the equipment
in such a position. If the Department interpreted section 670(1)
to prohibit the placement of equipment where any part of the
equipment might come in contact with a power line, one would
expect a regulation expressing such a prohibition.
IV. CONCLUSION
Alaska Statute 18.60.670(1) should be interpreted
literally to prohibit placing a crane within ten feet of a high
voltage electrical line. The statute does not prohibit placing a
crane where some parts of it might be moved to come within the
ten-foot zone. Respondent has not presented a compelling case
that this is not what the statute means. We therefore reverse
the order of the trial court.
COMPTON, Justice, dissenting.
I believe that this court makes three critical errors
in reversing the trial court. First, it erroneously assumes that
there is only one "literal interpretation" of AS 18.60.670.
Second, it disregards the admitted redundancy which will result
from its interpretation. Third, it fails to construe the statute
to give it the broadest safety application. For these reasons I
dissent.
The plain meaning rule "provides that if a statute's
meaning is plain, it should be enforced as it reads without
judicial modification or construction." Alaska Public Employees
v. Fairbanks, 753 P.2d 725, 726 n.5 (Alaska 1988). Nevertheless,
we have rejected a mechanical application of this rule that would
require this court to automatically accept the "plain meaning"of
a statute without consideration of legislative intent. State v.
Alex, 646 P.2d 203, 208-09 n.4 (Alaska 1982). In its place we
adopted a sliding scale whereby the more plain the language of a
statute, "`the more convincing the contrary legislative history
must be'" to effect the adoption of a different interpretation.
Id. (quoting United States v. United States Steel Corp., 483 F.2d
439, 444 (7th Cir. 1973), cert. denied, 414 U.S. 909 (1974)).9
The court believes that the language of AS 18.60.670 is
quite plain, noting that "[a] literal reading of the statute does
not support [the trial court's] interpretation." Perhaps a more
accurate description of the court's methodology would be that a
"literal" reading of subsection (1), taken out of context and
without concern for any resulting redundancy between subsections,
does not support the trial court's interpretation. This much I
am willing to concede. The problem with the court's approach is
that (1) it wrongly concludes that the statute's meaning is clear
on its face and thus the plain meaning approach is appropriate
and (2) it applies its literal reading to only one subsection of
the statute rather than the statute as a whole.
With regard to the plain meaning approach, the United
States Supreme Court has noted that "the threshold question in
ascertaining the correct interpretation of a statute is whether
the language of the statute is clear or arguably ambiguous."
K Mart v. Cartier, 486 U.S. 281, 293 n.4 (1988). While the
language of subsection (1) may be clear when read in isolation,
it is far from clear when read together with subsection (2). As
the Supreme Court stated, "in ascertaining the plain meaning of
the statute, the court must look to the particular language at
issue, as well as the language and design of the statute as a
whole." Id. at 291. It is incorrect to conclude, as this court
does, that the statute can be read piece by piece without
reference to other subsections or the statutory scheme as a
whole.
With that in mind, I am persuaded that the redundancy
between subsections (1) and (2) which results from the court's
reading cannot be so easily overlooked. The court does not
reconcile this redundancy. Instead, it merely insists that the
"actual language"of subsection (1) so convincingly conveys its
interpretation that the redundancy should be ignored.10 This begs
the question. I do not divine such a singular meaning from the
"actual language." I would sooner believe that the legislature
made a grammatical error and improperly added a comma, than
believe it simultaneously passed two subsections of a statute
that provide for essentially coextensive restrictions.11 See
Territory of Alaska v. Five Gallons of Alcohol, 10 Alaska 1, 9
(D. Alaska 1940) ("It is also an established doctrine of
interpretation that punctuation is a minor and not a controlling
element, and that courts will disregard the punctuation of a
statute, or repunctuate it, if need be to give effect to what
would otherwise appear to be its purpose and true meaning.").
As the court recognizes, "`a statute should be
construed so that effect is given to all its provisions, so that
no part will be inoperative or superfluous, void or
insignificant.'" Alascom, Inc. v. North Slope Borough, Bd. of
Equalization, 659 P.2d 1175, 1178 n.5 (Alaska 1983) (quoting 2A
C. Sands, Statutes & Statutory Construction 46.06 (4th ed.
1973)). The court violates this rule of construction in several
ways.
First, the court renders subsection (1) superfluous.
Under the court's interpretation, subsection (1) does not require
or prevent any action which is not required or prevented by
subsection (2). Additionally, the court fails to give effect and
meaning to the phraseology used in subsection (1). Subsection
(1) specifically identifies equipment "capable of lateral,
vertical, or swinging motion." AS 18.60.670(1). This
differentiation in types of equipment is meaningless unless the
equipment's motion capability is accounted for. Why was this
language used and this type of equipment singled out if the
distinction makes no difference? The court provides no answer.
Furthermore, the court's interpretation renders the
statute insignificant as a safety measure. As construed by the
court, AS 18.60.670(1) offers negligible protection.12 This
interpretation ignores another important rule of statutory
construction. If there is an ambiguity in the meaning of a
safety statute, whether internally or by virtue of reference to
another statute, we should construe the statute in a manner most
consistent with the legislative purpose of promoting safety. See
Atwater v. Matanuska Electric Ass'n, 727 P.2d 774, 776 (Alaska
1986) (construing AS 18.60.685, the penalty provision for
violations of AS 18.60.670). Safety legislation should be
liberally construed. United States v. Blue Water Marine Ind.,
661 F.2d 793, 796 (9th Cir. 1981). Cf. Allison v. State, 583
P.2d 813, 817 (Alaska 1978) ("[W]e believe that exemptions [to
safety legislation] should be narrowly construed.").
I decline to join in this court's speculation that the
legislature "may"have been attempting to balance employee safety
concerns with construction industry efficiency concerns. HEA did
not argue efficiency concerns before this court.13 Rather, HEA
has urged that the statute reflects a balance of competing safety
concerns. Evidence is nonexistent that the court's
interpretation would lead to a more safe workplace than the trial
court's interpretation, as HEA contends. The court, admitting
that "the trial court's interpretation promotes a higher degree
of safety," apparently agrees.
The Estate contends that the language "within 10 feet
of a high voltage overhead electrical line or conductor"is the
object of "capable of lateral, vertical, or swinging motion,"
instead of the object of "place."14 That is, the statute
prohibits the placement of equipment so that it is capable of
specified motion within ten feet of the electrical lines.
Because the statute is itself ambiguous, I cannot agree that the
Estate's burden of proving its interpretation is a "heavy
burden," or as the court announces for the first time, that the
Estate must present a "compelling case." In light of the
ambiguity of the statute, I consider the Estate's interpretation
to be a reasonable one.
The court's conclusion that AS 18.60.670(1) offers no
additional protection beyond that mandated by AS 18.60.670(2) is
correct, as those two subsections are interpreted by the court.
I believe this interpretation to be a rejection of the very
purpose for which the statute was enacted. The trial court's
interpretation may be gleaned from reading AS 18.60.670 as a
whole. It is the preferable interpretation in light of the
statute's recognized purpose of ensuring a safe workplace.
_______________________________
1 HEA is an electric cooperative which provides power on the
Kenai Peninsula.
2 AS 18.60.670 provides:
Prohibition against placement of
equipment near electrical power lines and
conductors. A person individually or through
an agent or employee may not
(1) place any type of tool,
equipment, machinery, or material that is
capable of lateral, vertical, or swinging
motion, within 10 feet of a high voltage
overhead electrical line or conductor;
(2) store, operate, erect,
maintain, move, or transport tools,
machinery, equipment, supplies, materials,
apparatus, buildings, or other structures
within 10 feet of a high voltage overhead
electrical line or conductor.
3 In Wallace v. State, 557 P.2d 1120 (Alaska 1976), a
violation of this regulation led to an accident very similar to
the one underlying this case. The State was sued in April of
1973 for failing to enforce the regulation. Id. at 1122.
4 HEA notes that the trial court's interpretation might
create heavier burdens for the construction industry. One of
HEA's experts, Michael Harbaugh, testified in an affidavit that
the trial court's interpretation
is not required for safety . . . . In
most cities, it is not feasible to de-
energize or barricade all the overhead lines
that it is possible for a crane or drag line
to reach while working . . . . Extending the
prohibited area by adding to it the distance
the equipment is capable of moving would
either eliminate the use of mechanical
equipment or might force the use of an unsafe
location.
Another expert, Terry Miller, testified in an affidavit that the
trial court's interpretation "is unworkable and would prevent the
use of backhoes and cranes on most construction sites in Alaska."
5 Subsection (2) provides that a person may not "store,
operate, erect, maintain, move, or transport . . . equipment . .
. within 10 feet of a high voltage . . . line or conductor."
6 We are unpersuaded by the Estate's argument that the
language "within 10 feet of a high voltage overhead electrical
line or conductor"modifies "capable of lateral, vertical, or
swinging motion," instead of the verb "place." This
interpretation would result in a grammatically incorrect and
ineffective sentence as there would be no object of the verb
"place" describing where the equipment may not be placed.
Further, in subsection (2) the phrase "within 10 feet" clearly
modifies verbs at the beginning of the subsection in that it
tells the reader that equipment may not be stored or operated
within ten feet of an electrical line. The phrase does not
describe the equipment. Since the same phrase is used in a
parallel location in both subsections, it seems most unlikely
that it would have a grammatical function in the first subsection
which is different from its function in the second.
7 The Estate principally relies on the affidavit of an
electrical inspector for the State Department of Labor, Preston
Williams. Williams is responsible for providing advice about
Alaska electrical statutes. Williams testified that the
Department of Labor interprets AS 18.60.670(1) as requiring that
equipment capable of movement "be placed so that at its furthest
possible extension toward a high voltage overhead electrical line
or conductor, it maintains the required minimum ten feet of
clearance." Williams testified that the Department of Labor has
given the statute this interpretation since it was enacted in
1972. In addition, Williams testified in a deposition that he
contacted his supervisor and two other Department electrical
inspectors. According to Williams, they all agreed with his
affidavit.
In response, HEA relies on numerous affidavits. One of the
affidavits is from Jody Vick. Since August 1988, Vick has worked
as a voluntary compliance officer for the Division of Labor
Standards and Safety of the Department of Labor. From 1971 to
1988 Vick worked as an electrician in Alaska. Vick testified
that AS 18.60.670 is not enforced in the manner suggested by
Williams.
In addition HEA relies on a number of construction industry
employees who testified that they have much experience working
near power lines and the Department of Labor has not interpreted
AS 18.60.670 in accordance with Williams' affidavit.
8 See Alaska General Safety Code 01.0705(i)(1)(E)(ii).
9 There is little evidence in the legislative history of AS
18.60.670(1) that suggests what the legislature intended. The
court believes that the legislative intent of subsection 670(1)
can be inferred from another section, AS 18.60.675. Alaska
Statute 18.60.675 requires that "equipment . . . any part of
which is capable of vertical, lateral, or swinging motion"carry
a prominent warning sign that states: "It is unlawful to operate
this equipment within ten feet of high voltage lines."
However, this warning could also originate from the
language of subsection 670(2). I do not believe that this brief
warning is conclusive of the effect of AS 18.60.670 or
dispositive of the effect of subsection (1) specifically.
10 I note the court's concern for the grammatical
"ineffectiveness" of the sentence that would result from the
Estate's construction. Ironically the court does not show the
same concern for the practical ineffectiveness of the statute
which results from its interpretation. Likewise, the court is
willing to look to subsection (2) to analyze sentence
construction, yet disregards that subsection in interpreting
subsection (1).
11 It is theoretically possible to avoid the redundancy by
differentiating between "place,"the verb used in subsection (1),
and "store, operate, erect, maintain, move, or transport," the
verbs used in subsection (2). However, I cannot imagine a
situation in which this difference would have any effect.
12 Applying the court's version of the statute to a
hypothetical situation, it is apparent that the ten foot buffer
is a truly minimal "margin of safety." In fact, a few simple
calculations reveal that subsection (1), as interpreted by the
court, provides almost nothing to the workers it was intended to
protect. Assuming that electrical wires are 30 feet above the
base of the boom, use of an 80 foot boom yields the following
results. With a ten foot buffer, the safe rotation range would
be 195 degrees, exposing 147 feet of the electrical line to
contact with the boom. In contrast, a five foot buffer would
yield a safe rotation range of 188 degrees, exposing 148 feet of
the electrical line to contact with the boom. If there were no
buffer at all, the safe rotation range would be 180 degrees,
exposing 148 feet of the electrical line to contact with the
boom.
13 The court cites affidavits by two of HEA's experts,
Michael Harbaugh and Terry Miller, in support of its efficiency
concerns. In doing so, the court misconstrues HEA's arguments
and its reliance on these experts. Harbaugh testified solely as
to the safety implications of the trial court's interpretation,
and Miller testified only as to prevailing industry practices.
Neither expert discussed competing "efficiency concerns," or
"heavier burdens for the construction industry."
14 The court implies several times that the Estate concedes
there is but one "literal interpretation." The Estate is not
urging that a non-literal interpretation be adopted, but only
that the trial court's reading is also a "literal
interpretation."
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