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MONROE COUNTY ELECTRIC POWER ASSOCIATION AND T & M STEEL ERECTORS, INC. v. TERRY PACE

DECEMBER 12, 1984

MONROE COUNTY ELECTRIC POWER ASSOCIATION AND T & M STEEL ERECTORS, INC.
v.
TERRY PACE



BEFORE PATTERSON, DAN LEE AND ROBERTSON

JUSTICE DAN LEE FOR THE COURT:

I.

This is an appeal from the Circuit Court of Monroe County wherein the jury returned a verdict in favor of the appellee, Terry Pace, against the appellants, Monroe County Electric Power Association and T & M Steel Erectors, Inc. This suit was initiated by Pace when he filed a declaration on May 1, 1980, which alleged that he was injured as the result of the negligence of the appellees and a third defendant, Mitchell Engineering. Following the trial, the circuit judge granted a directed verdict to Mitchell Engineering.

 Pace was injured while at work on November 10, 1979. His injury occurred as the result of coming into contact with a high voltage" feeder "power line which was strung over the roof of a building Pace was working on. Briefly, Pace argued that T & M Steel Erectors, Inc. (T&M) was negligent for erecting the building directly under the high tension wires so as to leave the wires no more than approximately four feet over the roof of the building. Pace also alleged that Monroe County Electric Power Association (The Power Company) was negligent in failing to inspect the wires, become aware of the danger, and remedy that situation.

 The jury returned a verdict for Pace against the two appellees and assessed his damages at $75,000. A judgment was entered accordingly. From that verdict and judgment the appellees bring this appeal.

 II. THE FACTS

 On November 10, 1979, Terry Pace was a 17-year-old laborer for Hamilton Electric Gin. When Pace arrived at work that morning he had been working for Hamilton Electric Gin six weeks. Pace testified that soon after arriving at work he was told to get a ladder and climb onto the roof of the molt press shed and begin cleaning out a vent on top of that roof. Pace had never been on the roof before. Pace worked with Carl Lee and Jimmy Revord to clean wet cotton lint out of the vent. Lee and Revord were pulling the lint out of the vent and Pace was scooping it up in an aluminum scoop, taking it to the side of the building and throwing it over. The roof was covered with approximately three inches of damp cotton lint. As Pace was carrying a scoop full of the cotton lint to the side of the roof, he accidentally hit a high voltage power line which ran across a section of the roof. The next thing Pace remembered

 was being carried off the roof in great pain. Pace testified that he was unaware of the presence of the high voltage lines and that no one had warned him about them.

 There is no need to detail the full extent of Pace's injuries. He suffered severe burns on his neck, right shoulder and both feet. Portions of both feet had to be amputated. In addition to the extreme pain from the initial injury, Pace had to undergo painful whirlpool treatments twice a day for approximately twenty-five days. Pace's recuperation and rehabilitation were lengthy. He has a twenty-eight percent disability of his feet and legs and continues to complain of a loss of balance, inability to run, difficulty in walking up an incline and the inability to stand for longer than fifteen to twenty minutes.

 Marlis E. Mink, general supervisor for the Hamilton Electric Gin, testified that the molt press shed was built in June, 1977. Mink stated that Robert Parham, superintendent of Amory Cotton Oil Company and Mink's supervisor, had initiated the building of the molt press shed. According to Mink, Parham contacted Mitchell Engineering, who drew up the plans for the shed. The plans and building materials were purchased from Mitchell Engineering but the assembly of the building was contracted to T & M.

 Mink testified when the T & M construction team arrived on the scene, Hamilton Electric Gin had already caused a concrete foundation, complete with anchor bolts, to be poured. As per Parham's design, the molt press shed was to be constructed next to an existing building so as to use the wall of the existing building as one of the walls of the press shed. This design also required that the molt press shed be erected directly under high voltage" feeder lines "which brought electricity from the power lines to the Gin's transformers, located behind the molt press shed.

 Mink further testified that when the T & M construction team arrived they wanted to know if the high voltage feeder wires running over the construction site were hot. Mink testified that Parham told them no, that the energy to those lines had been cut off at the fuses on the pole.

 Mink added that these high voltage lines leading to the Gin were energized every Fall and de-energized every Spring. In other words, the high voltage wires carried electricity only during the ginning season. The Power Company had always been responsible for turning the electricity on and off.

 After T & M erected the shed, it became necessary to install a vent on the roof. Installation of the vent was accomplished by employees of Hamilton Electric Gin and the services of T & M were not availed of in that project. Following the installation of the vent, representatives from T & M were twice called back to the Gin to repair leaks in the shed they had erected. This required that T & M employees be on the roof of the molt press shed where the installation of the vent was obvious.

 Prior to the construction of the molt press shed, the Gin had requested that The Power Company de-energize the high tension lines and the 220 line so that Hamilton could raise the weatherhead on its existing building. The weatherhead is the pipe to which the 220 line is directed from its source at the utility company's pole. The line went down the weatherhead to the 220 meter. Because Hamilton intended to build the molt press shed, he needed to raise the weatherhead so that the 220 line would not be in the way. Representatives from Monroe Electric came out and cut the power to that line on and off so that this work could be completed.

 Mink was responsible for having sent Pace up on the roof to clean out the vent. He testified that he did not remember giving Pace any special warning regarding the power lines other than a general warning sometime earlier to be careful.

 Interrogatories propounded to The Power Company from Mitchell Engineering and Terry Pace were introduced into evidence. Among the information contained in those interrogatories is the following: The power lines along the road on which Hamilton Electric Gin sat were erected in 1939. The lines carried 12,500 volts. The feeder lines to the Gin were erected in 1964 and also carried 12,500 volts. Monroe County Electric Power Association retained ownership of the main lines and feeder lines. From the roof of the molt press shed to the high voltage feeder wires was a distance of forty-two inches. The Power Company energized and de-energized the lines once per year. There was no warning on any of the lines. The Power Company had not inspected the lines after the molt press shed was built. The National Electrical Safety Code regulates the erection and maintenance of electrical wires in Monroe County and sets the standards by which the Monroe County Electric Power Association operates. The lines in question did not comply with that Code. At Hamilton's request The Power Company had raised the 220 volt line which ran alongside the 12,500 volt feeder lines. Employees and the operating superintendent

 of the Monroe County Electric Power Association observed the molt press shed; however, none observed the high tension wires running over it.

 Robert Parham, superintendent of the Amory Cotton Oil Company and general manager of the Hamilton Electric Gin, testified for Terry Pace. Parham stated that he was responsible for purchasing the molt press shed, having it erected and installing the molt press. Parham testified that Mitchell Engineering gave him a foundation plan and poured the foundation which included anchor bolt settings to attach the shed to the foundation.

 Parham testified that Buck Tieg, a sales representative for Mitchell Engineering, came to the Gin site to discuss the plans and erection of the molt shed. Tieg asked Parham if the high tension lines running over the construction site were hot. Parham assured him that the lines had been de-energized. At Tieg's suggestion, Parham hired T & M to do the actual construction of the building after Mitchell furnished the supplies.

 Parham stated that the T & M representative, James Herrington, asked him if the power to the high voltage wires was on. As he had done for Tieg, Parham assured Herrington that the lines had been de-energized for the construction of the building.

 Parham stated that he never did call The Power Company and ask them to move the feeder lines. He also admitted that the vent which was installed on top of the molt press shed was not in the original plans as drawn up by Mitchell Engineering.

 Damon Wall, the assistant dean of engineering and an associate professor of electrical engineering at the University of Mississippi, was called by Terry Pace as an expert witness. Wall testified that he was familiar with the National Electrical Safety Code and that that Code set standards intended to promote safety and govern the conduct of those dealing with electricity. Wall further testified that Section 23-4 of the National Electrical Safety Code required a minimum clearance of ten feet for the safe operation of high voltage lines. Wall was of the opinion that the high voltage wires in question constituted an unreasonably dangerous condition for persons required to work on the roof. He stated that Section 214 of the National Electrical Safety Code required the inspection, reporting and repair of dangerous lines. That section reads:

 Lines and equipment shall comply with these safety rules when placed in service.

 According to Wall this provision of the Safety Code was violated by The Power Company each time it re-energized the high voltage lines following the construction of the molt press shed. Wall testified that in his opinion the Code required that all lines be checked before they were put back in service. Wall further stated that he was familiar with the provisions of the National Electrical Safety Code Section 214(a)(2) which reads: Lines and equipment shall be inspected from time to time at such intervals as experience has been shown to be necessary. And subsection (a)(5) which reads: Lines and equipment known to be defective so as to endanger lives or property shall be promptly repaired, disconnected or isolated.

 James Herrington, the President of T & M, testified that when they erected the molt press shed they used precut materials which had been fabricated at Mitchell Engineering. Herrington testified that he and his employees had encountered high tension lines over their construction area on previous occasions but that they had never removed them. Herrington stated that he saw the high tension wires prior to the erection of the molt press shed but that he was unaware that the erection of the building brought its roof to within less than eight feet from those wires. He admitted that if high voltage lines interfere with his work he generally asks the owner of the wires to move them. He stated that he depends on the owner of the lines to take care of any clearance problems. According to Herrington, this was the custom and practice in the erection industry.

 Herrington testified that he never knew the molt press shed's purpose or that a vent would be installed on its roof. He admitted being on the roof of the building at least once during its construction and could have seen the roof's proximity to the power lines. Herrington denied that he had any reason to believe that access would ever be required to the roof's building.

 Kenneth Miller, the operating superintendent at The Power Company, testified that the high tension wires measure forty-two inches above the roof of the building. He admitted that representatives from The Power Company read electric

 meters at the Gin on a monthly basis. The Gin had two electric meters, one for the high tension wires which were activated only during the ginning season, and another for the 220 line which ran power to the Gin's office year-round. The 220 meter was read on a monthly basis throughout the year and the high voltage meter was read once a month during the period the lines were energized.

 Miller testified that all of the meter readers for The Power Company are trained to report any dangers or dangerous conditions they observe. He further stated that the location of the high tension wires in such close proximity to the building constituted a dangerous condition and that had his workers observed those lines, they would have moved them. He stated his workers tried to observe the lines but he could offer no explanation for why the dangerous condition was not observed and reported at least once during the twenty-nine times representatives of The Power Company came to the premises of the Gin and read the electric meters between the date of the erection of the building and that of the accident. Miller further testified that The Power Company had a formal policy of inspection of all lines once every three years. He admitted that it was no difficult task to observe the lines in question.

 Frank Finney was called as a witness for The Power Company. Finney was a serviceman who read the Hamilton Electric Gin meters. Up until April, 1977, two months before the erection of the molt press shed, it was part of Finney's job to routinely check the condition of the lines leading to the transformers and meters at the Gin. He stated that all servicemen are instructed to make visual inspection of power lines and to report any problems or dangerous conditions. Finney admitted that he was in the Hamilton Electric Gin area after the erection of the molt press shed but that he never noticed that the new building was under high tension lines. He stated that had he seen the condition, he would have reported it.

 James K. Benton was also a serviceman for the Monroe County Electric Power Association. Benton was on hand the day Hamilton Electric Gin raised the weatherhead. Benton was responsible for de-energizing and then reenergizing the power lines following the raising of the weatherhead. This occurred in the Spring of 1977, prior to the erection of the molt press shed. Benton testified that no one mentioned to him there was any intention to build the shed.

 Benton further testified that from the Spring of 1977 through the date of the accident, he inspected power

 lines in the Hamilton area although he could not specifically recall inspecting the lines at the Gin. Benton was in the area at least once a week and he was certain that other representatives of The Power Company were in the same area doing the same thing. Benton stated that had he observed the lines he would have reported their condition because they unquestionably constituted a danger. Benton later testified that he might have seen the molt press shed but did not get close enough to" observe "it. Benton affirmed that ...


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