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JESCO, INC. v. ROBERT O. SHANNON

FEBRUARY 29, 1984

JESCO, INC.
v.
ROBERT O. SHANNON



BEFORE PATTERSON, PRATHER AND ROBERTSON

PRATHER, JUSTICE, FOR THE COURT:

Robert Shannon filed this tort action for recovery of damages for permanent burn injuries sustained by him from an explosion at his place of employment, Sunshine Mills, Inc. in Tupelo. The defendant in the suit was Jesco, Inc., an independent contractor doing maintenance work at the Sunshine Mills plant, including welding. The jury returned a plaintiff's verdict for $1,024,268.00 compensatory damages,

from which Jesco, Inc.(hereafter called Jesco) appeals. The plaintiff Shannon cross-appeals on denial of a punitive damage instruction. We affirm on both appeals.

 The appellant Jesco assigns as error the trial court's actions in:

 (1) Refusing a directed verdict for the defendant Jesco, absent probative evidence that the explosion was caused by Jesco.

 (2) Refusing to instruct the jury that they must believe from a preponderance of the evidence that the explosion occurred according to plaintiff's expert witness, or find for the defendant Jesco.

 (3) Refusing the defendant's independent intervening cause instruction.

 (4) Admitting into evidence an audio-video tape demonstrating burn treatment.

 (5) Allowing expert testimony on plaintiff's total loss of future wage earning capacity.

 (6) Overruling the defense's objection to its net worth, absent evidence justifying punitive damages.

 (7) Refusing a new trial on the excessive award of damages, evidencing the jury's bais, passion and prejudice.

 The appellee Shannon's cross appeal charged the trial court erred in refusing to submit the punitive damage issue to the jury.

 I.

 Robert Shannon is an employee of Sunshine Mills, (hereafter referred to as Sunshine), a manufacturer of dog and fish food.

 The Sunshine Mills facility consisted of elevators, a concrete mill building, and a large complex of metal buildings which surrounded the concrete mill building on three sides. The elevators were used for storing raw grain, and conveyors were used to transfer the raw grain to the fourth floor of the concrete mill building. There the raw grain was pulverized by a system of hammermills. Extending from the fourth floor to the first floor were a complex system of some twenty-four bins.

 The first story of the mill building contained electrical controls which operated all of the bins, conveyors and other machinery. Also on first floor were the cookers or expanders which cooked the unprocessed raw dogfood.

 The cooked material was conveyed to one of four gas-fired open flame dryers. After the material had been dryed, it was returned by conveyor into the mill building where it was processed and stored in storage bins on the upper floors.

 Tons of grain, processed and unprocessed dog and fish food, flowed through the complex system continuously.

 On the date of the explosion, December 22, 1977, there was in effect an ordinance adopting a fire prevention code by the City of Tupelo governing conditions hazardous to life and property from fire or explosion. This code is the basis of the acts of negligence charged against Jesco that proximately caused or contributed to Shannon's injury.

 Sunshine contracted with Jesco to make certain alterations within several bins on the second floor. The work required the cutting into the metal bin with an acetylene torch to build a new spout or chute down to some new equipment. In this area of the second floor there was a cluster of four bins, two containing corn, one containing wheat, and one containing soybean. The bins extended from the fourth floor downward to the second floor where the hoppers were located. Openings at the top of each bin provided an entrance into the bin, and a built-in ladder provided access downward through the bin into the hopper which tapered off to approximately 14 inches square at its bottom.

 Jesco's employees, Tommy May and Roger Hawkins, performed the welding on the corn bin and proceeded to the wheat bin.

 May viewed the inside of the wheat bin through an inspection plate door and noticed clumps of grain within the bin. Employees of Sunshine were called to clean out the caked-on wheat. Two employees of Sunshine, Talmadge Stubblefield and Johnny Whitehead, crawled down into the bin from the top and scrapped the sides of the bin with a scraper. The wheat was caked on all sides of the hopper. Stubblefield and Whitehead were unable to scrape all of the wheat because some of it could not be reached. They advised the Jesco welders that all of the wheat could not be taken

 out. The welders, May and Hawkins, told the Sunshine employees that the bin was clean enough so the cleaning was stopped.

 Hawkins proceeded to cut the hole. After cutting two sides with an acetylene torch, Hawkins could tell that something was behind the cut. A hole was cut in the center of the cut-out in which a rod was placed to prevent the cut-out from falling into the bin. After five minutes of cutting, the two men were able to lift the entire metal piece out. They saw clumps of smoldering wheat behind the cut metal. May left and returned five minutes later with Stubblefield who attempted to get the remaining chunks of wheat out of the bin.

 Satisfied that the bin was cleaned, May welded the chute onto the hopper. Hawkins supposedly watched for fire, but he never looked into the bin after the welding was completed.

 May testified that the actual cutting of the metal creates hot slag and BB's, but he could not say whether hot slag and metal BB's penetrated the caked wheat. After the removal of the wheat clumps, neither Hawkins or May saw any fire or smoldering. Droppings from the welding would have fallen onto the floor instead of inside the bin. After welding the hole up, there was no way for May to see any smoke at that point. He stated that he would have been able to smell smoldering wheat through the metal bin had there been any smoke. The time period from the moment the hole was cut until the explosion was estimated to be about forty-five minutes to one hour.

 Negligent action was attributed to the Jesco welders in the following respects. No one told May or Hawkins that a fire watch was to be used in the bin for a period of thirty minutes after the welding. Nor did anyone tell them to use non-flammable shields if welding was within thirty-five feet of combustible material. They were told not to cut or weld in a bin that contained flammable solids or anything else that would cause fire. The floor was not wet down around the welding area prior to welding. All of the above are required by the Tupelo Fire Prevention Code.

 After the welding, May notified the Sunshine employees that the job was complete. The Sunshine employees restarted the operation, and wheat entered the bin to the point of the welding. May stated that it takes three to five minutes for the weld to cool to the point that it could be touched and the same amount of time for the hot slag from the cutting torch to cool.

 May was on the second floor facing north when the explosion occurred. The first thing he remembered was seeing flames come up from the first floor through the manlift openings in the second floor. He did not hear or see an explosion before the fire. He stated that it was pretty noisy since the mill was operating and that he may not have heard a low order explosion if one occurred.

 Plaintiff's expert was Emerson Venable, a consulting chemist specializing in materials engineering and safety and health problems. Venable investigated the Sunshine Mill explosion on January 11, 1978, taking pictures and making numerous notes while inspecting the mill premises.

 Venable defined smoldering as a non-flaming combustion which can occur with any kind of pourous material that is combustible. He stated that wheat could smolder and that smoldering could go for hours undetected. One may or may not be able to smell smoldering material especially if smoldering is occurring on the inside of a pile. Venable was of the opinion that hot slag, spark, or hot BB's from the cutting torch could cause wheat to smolder. The welders would have to be looking for it to detect it.

 Venable's testimony on the plaintiff's theory of the explosion is as follows: the cause of the explosion and the fire which caused plaintiff's injuries was that the negligent cutting or welding by Jesco welders caused the wheat material on the inside of the bin to smolder, thus providing a source of ignition. Grain dust, of a combustible mixture, was created and was contained within the bin when the mill operation was restarted which was ignited by the smoldering wheat, causing a low order explosion. This initial explosion shook the building causing dust accumulated throughout the building to fall down through the various openings in the floors. The dust was drawn into one of the open flame gas dryers on the first floor of the mill. The open flame ignited the dust causing a large fireball to explode upward through the building. It was this fireball that burned the plaintiff and set off secondary explosions causing the destruction to the building.

 The plaintiff, Robert Shannon, age twenty-nine years, with an eleventh grade education, was married and the father of two boys, ages six and one. His wife was expecting another child.

 He was employed by Sunshine Mills five years prior to the explosion. He was the foreman in charge of running the

 twenty-five pound dog food line which required the sacking and lifting of the twenty-five pound bags of dog food. At the time of the explosion the only thing Shannon remembers is getting up and seeing fire as his clothing was burning. He sustained first, second and third degree burns over thirty-eight percent of his body. He was treated at North Mississippi Medical Center in Tupelo and later at the burn center at Delta Medical Center in Greenville for more than three months. He had to be sent to the University Hospital in Jackson for the removal of a catheter which had come loose and lodged in a vein in the upper part of his body. After his stay in Jackson, he was sent back to Greenville for further treatment. During his second stay in Greenville, skin grafts were taken from both legs and applied to the burned areas. A psychiatrist was seen by Shannon.

 Shannon was in good health before the explosion. His recreational activities before the explosion included fishing, basketball, and baseball.

 Mentally, Shannon was anguished after the explosion. He did not want to see his wife or mother because of his burns. He worried about his looks and medical expenses. He was at all times dependent on someone and needed assistance to use the bathroom, which caused embarrassment. He also complained of flashbacks of the fire.

 After getting home, Shannon felt further embarrassment. He was unable to hold his children. He walked with a limp and had to have help dressing.

 Medical expenses include: $719.00 from North Mississippi Medical Center, $17,874.00 from Delta Medical Center - first stay, $1,420.00 from the University Hospital, $586.72 from Delta Medical Center - second stay, $420.00 from Dr. Jan T. Goff, $300.00 from Dr. Patrick Lehan, and $900.00 from Greenville Surgical Clinic, totalling $22,220.80.

 Shannon returned to work at Sunshine Mill in November, 1980. His work was limited to janitorial duties such as sweeping and cleaning. He was unable to find other work. Darrell Smith, mill manager, agreed that Shannon could do the janitorial work. He allowed Shannon to rest when rest was needed and only required that Shannon work four days a week. Shannon did not want to go back to Sunshine but did so because he needed the money. For two months' work Shannon's gross pay in 1980 was $1,320.38. His gross wages in 1981 was $11,238.38 and in 1982, at the time of the trial, his takehome pay was $156.00 per week. At the time of the explosion Shannon's takehome pay was $140.00 per week for

 five days' work.

 Shannon admitted that he would have been able to leave the hospital much sooner had the catheter not come loose. After getting home, he saw Dr. Benton Hilton in February and March of 1978. At that time Hilton suggested that Shannon go back to work, but Shannon elected not to go back until November of 1980. ...


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