DATE OF JUDGMENT: 02/13/92 TRIAL JUDGE: HON. JAMES E. GRAVES COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL - PERSONAL INJURY DISPOSITION REVERSED AND REMANDED MOTION FOR REHEARING FILED: 2/26/98 MANDATE ISSUED: EN BANC.
The opinion of the court was delivered by: Banks, Justice, For The Court:
¶1. Here we consider the question whether a utility company may be liable for injuries suffered by a passenger where a negligent driver strikes one of its poles in a public right-of-way, off the traveled portion of a highway. We answer the question in the affirmative, where a properly instructed jury finds that there was negligence in the placement or maintenance of the pole and that such negligence proximately contributed to the accident and injuries sustained. We overrule our prior decision in Vines v. Southwestern Mississippi Elec. Power Ass'n, 241 Miss. 120, 129 So. 2d 396 (Miss. 1961) to the extent that it is inconsistent with the Conclusion reached today. The judgment for the plaintiffs is reversed because we conclude that the trial court improperly excluded certain evidence. We remand for further proceedings consistent with the principles announced today.
¶2. Leslie Lumpkin filed this complaint in the Hinds County Circuit Court on February 20, 1990, on her own behalf and on behalf of Kristen Black, her daughter, against Randy Tackett and Mississippi Power and Light Company (MP&L). MP&L is a Mississippi corporation engaged in the business of the generation, manufacture, transmission, distribution and sale of electricity within the State of Mississippi.
¶3. The complaint alleges that on November 23, 1989, at approximately 11:30 p.m., Kristen was severely injured after coming in contact with an uninsulated electrical distribution line installed by MP&L. Kristen had just exited Tackett's automobile, which had crashed into a power pole supporting the high voltage lines. The complaint states that as a direct and proximate result of the negligence of both Tackett and MP&L, Kristen was seriously and permanently injured. Tackett was charged with failing to maintain proper control over his vehicle. Lumpkin alleged that MP&L was negligent in failing to design, construct, install and maintain its power distribution poles and lines in relation to the roadway and its right-of-way so as to reasonably reduce hazard to life. Lumpkin also contended that the placement, construction, maintenance and location of the pole constituted a public nuisance.
¶4. MP&L answered on March 6, 1990, and maintained that it was not negligent, nor had it created a reasonably foreseeable hazardous condition by the placement of the utility pole involved in this case. MP&L claimed that Tackett had operated his vehicle while under the influence of intoxicating beverages, and that he was therefore negligent as a matter of law. MP&L alleged that Kristen was negligent in failing to properly watch for the downed power lines and for voluntarily riding in Tackett's automobile when she was aware that Tackett had consumed alcohol.
¶5. Trial of this case commenced on January 27, 1992. At that time, Tackett brought forth a motion in limine to prohibit any evidence of his consumption of alcohol on the night of the accident. The trial court granted Tackett's motion, finding that the probative value of the evidence was substantially outweighed by prejudice because prior to trial he admitted that he was negligent in the operation of his vehicle. He continued to deny that his negligence proximately caused Kristen's injuries.
¶6. The jury returned a special verdict in which it found Kristen fifty percent at fault, MP&L fifty percent at fault, Tackett not at fault, and awarded damages in the amount of $750,000.00. On February 20, 1992, MP&L filed a motion for judgment notwithstanding the verdict and alternatively for a new trial. The plaintiffs filed a motion for an additur in the event the trial court granted MP&L's motion for a new trial on the issue of the reformed jury verdict. However, Judge Graves denied MP&L's post-trial motions, and consequently did not reach the plaintiff's motion for an additur. MP&L appeals the trial court's ruling.
¶7. On the night of November 23, 1989, Tackett and several passengers were riding in Tackett's 1983 Ford Mustang. Among the passengers were Crystal and Heather Barry, Shane Acy and Kristen Black. Tackett was driving the group back to Greenwood, Mississippi, after going to Philip, Mississippi, to see where Kristen's boyfriend lived.
¶8. Tackett realized that he was beginning to take an extremely sharp curve. He recalled traveling at a speed of at least fifty-five miles per hour. According to Kristen, as Tackett neared the curve on Money Road she stated, "Randy you know, there is a bad curve up ahead." He tried to make the curve by slowing down and moving over the center line to the left. At that time Tackett's brakes locked up and Tackett lost control. The car slid off the road and severed a utility pole. He testified that he never saw the utility pole even as the car drove through it.
¶9. After the Mustang collided with the pole and came to a stop in the field, Kristen wanted to get out of the car because she did not know what condition the car was in at that time. No one had been injured in the automobile accident. She stated that she was nervous and scared as she exited the vehicle. The area was completely dark as there were no street lights, and Kristen removed her shoes because they were sticking in the mud. She did not know that a power pole had been knocked down, nor did she see the downed power lines.
¶10. The next thing she remembered was lying in the ditch by the road. She did not know what had happened, but she was cold and crying because her left arm was in severe pain. She stated that her left arm was hurting so bad that when she tried to hold her arm, she felt nothing but her sweater. Tackett said that it was so dark that he didn't see the downed electrical wire until after Kristen had been electrocuted. Tackett then pulled her out from under the wire.
¶11. Heather Barry testified that she had also started walking toward the road with Kristen, but stopped when she saw the wires hanging. She said "Kristen, don't go up there. There's wires up there." Kristen told her that she was just going to go up under them. Kristen kept walking and Heather saw her bend over. Heather then heard a buzzing noise and saw sparks and Kristen's face light up. Kristen fell over on her back. Heather did not notice any buzzing, crackling or any light coming from the wire prior to Kristen's contact with the wire.
¶12. Dr. Joe Keith Robbins was on emergency room duty at the Greenwood Leflore Hospital on Thanksgiving Day of 1989. Kristen was brought into the emergency room shortly after midnight. Kristen's injuries involved third degree burns to the left wrist. Dr. Robbins stated that her burns extended all the way into the bone and up to her shoulder. There was very little flesh remaining around the distal forearm. Kristen, emotionally distraught and in critical condition, was transferred by ambulance to the Burn Center in Greenville, Mississippi.
¶13. Dr. Robert Love first saw Kristen at the Burn Center in the early morning hours of November 24, 1989. He carried out a physical examination and determined that she had a severe burn resulting from an electrical injury. Her injuries were very severe to her left upper extremity, and she was also severely burned in the buttocks and the sacral or lower back area. With regard to the injury to Kristen's left arm, there was no remaining muscle tissue or blood vessels. He determined that her arm was non-viable and that amputation was necessary.
¶14. From the time of her admission to the time of her discharge, Kristen spent one month and two days at the Burn Center. Kristen underwent four operations while she was in the Burn Center. The first was to amputate the left arm and a portion of the shoulder and a portion of the chest. Kristen's second operation on November 28, 1989 consisted of a skin graft to treat the burn to the buttock area. The third surgical procedure involved the removal of more dead muscle and a repeat of the skin graft from the second operation. In her fourth and final operation on December 19, 1989, a screw was inserted into the remaining portion of the bone in her upper left arm.
¶15. Mrs. Lumpkin stated that the majority of Kristen's post-amputation pain was in the form of phantom pain, which occurred almost every day. Phantom pain is a condition where a patient, after amputation of an extremity, still feels pain in the extremity. In Kristen's case, Dr. Love said that she might continue to feel pain in her left hand even though it has been amputated. Kristen said she still felt that pain as of the time of trial.
¶16. Kristen was fitted with an artificial limb at the Methodist Rehabilitation Center. The bill for Dr. Love's services in treating Kristen amounted to $6,245.00. The bills from the Delta Medical Center totaled $54,732.90. Miscellaneous charges from the hospital pharmacy and supply totaled $5,341.69. Mrs. Lumpkin testified that the total amount of medical bills incurred on behalf of Kristen up to the time of trial totaled $87,007.08. Mrs. Lumpkin had also incurred out-of-pocket expenses in the amount of $2,991.00
¶17. Mrs. Lumpkin did not think Kristen "cared too much about life" after the accident. She said Kristen made statements like "life is really no fun" or "life is really not worth living" or "nobody really cares anyway" or, "what's the point?" During treatment of Kristen, Dr. Love consulted with Dr. Gil McVaugh, a clinical psychologist, in regard to what Dr. Love believed to be a potential mental disorder in Kristen. She was generally depressed. Upon being discharged from the Burn Center, Kristen returned every other day on an outpatient basis. Kristen improved physically, but Dr. Love thought that she deteriorated mentally.
¶18. Dr. Michael Whelan, a practicing psychologist, saw Kristen at the emergency room on January 15, 1990, after she was found by the police because she tried to run away from home. Dr. Whelan's diagnosis was that Kristen was suffering from an adjustment disorder or perhaps major depression. Dr. Whelan began seeing Kristen on a regular basis after this incident. He learned that prior to sustaining the injury involved in this case, she had been diagnosed with oppositional defiance disorder. She was apparently more rebellious and more argumentive than the average teenager. In Dr. Whelan's opinion, the loss of her arm would exacerbate all of her pre-existing problems such as her difficulty in expressing emotions. His diagnosis was that she had a permanent personality disorder involving emotional scars so deep that they were going to interfere significantly with the rest of her life. He was of the opinion that her various psychological problems with regard to the diagnosis and her prognosis were directly related to the injury she sustained on November 23, 1989.
¶19. Mr. Harold G. Fortenberry, a vocational rehabilitation consultant, testified that Kristen suffered a twenty to fifty-five percent loss of wage-earning capacity as a result of the accident.
¶20. Deputy Gibson of the Tallahatchie County Sheriff's Department investigated the scene around midnight on November 23, 1989. The power pole had been broken in three pieces. At its lowest point, the power line was three or four feet off the ground. He noticed there were no street lights or any other roadway lighting in the area where Kristen was injured. Deputy Gibson measured eighty feet of skid marks leading to the edge of the road. He agreed that Tackett's automobile must have been airborne when it struck the pole. The car came to a halt about thirty yards out into the field. Because it was muddy, the car stopped shorter than it would have had it been dry. There were no signs warning drivers to slow down as they approached the curve.
¶21. Mr. William Vaughn, an MP&L senior lineman, helped build the Money Road power line. It was a distribution line carrying eight thousand volts of electricity. The pole that Tackett's automobile struck supported only two wires, one carrying electricity and one ground wire. Vaughn stated that it was company policy to recognize and report hazardous conditions involving power lines. He was familiar with the curve on Money Road where the accident occurred because he noticed skid marks in the curve even before the pole was installed. A pole in the same location as the one Tackett collided with was struck and broken when a vehicle missed the curve in Money Road and hit the guy wire in 1984.
¶22. Vaughn stated that all the supervisors, the people in the district office, and the crews working on Money Road knew that cars regularly ran off that portion of Money Road. The original engineering plans for the Money Road line did not provide for placement of a power pole where the power pole was ultimately positioned. The line crew was unable to comply with the plans drawn by the engineer because of an obstruction, namely an ammonia tank, and also the fact that the guy wire would have extended into a farmer's cotton field.
¶23. Bob Marsh stated that MP&L never tried to predict, in determining the location of its utility poles, where an out of control car would run off the road. He admitted that after the similarly located utility pole was struck in 1984, MP&L knew that cars could come in contact with the pole. Marsh indicated that MP&L did not attempt to relocate the pole for the same reasons that the utility pole was positioned there in the first place, namely, because the pole would have interfered with an ammonia tank and a cotton field.
¶24. Marcus Williams, an expert in the field of highway construction and engineering, opined that the utility pole was unreasonably dangerous because of its location. The curve in question was basically a flat curve that angled somewhere between sixty and ninety degrees. He said that the curve was so sharp that people should have been expected to fail to negotiate the curve. He said the pole was within a one-hundred- foot danger zone where a car would travel if it failed to make the curve. Williams further stated that following the original plans would have been a solution to this problem. Williams also stated that the placement of this pole, including its high-powered electric charge, was extremely dangerous and constituted a public nuisance to the traveling public.
¶25. Yerby Hughes, an electrical engineer with four years' experience in the design and construction of the type of power line involved in this case, stated that the applicable safety code for this type of construction and maintenance was the National Electrical Safety Code (NESC). Hughes pointed out § 211 of the NESC, which stated that "all electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as is practical." He believed that MP&L's placement of the pole in question was a violation of that code section.
¶26. Walter Neel, an expert in the fields of civil and traffic engineering, stated that based upon a reasonable professional probability, the Money Road power pole involved in this case constituted a foreseeable risk of harm to the public. Although there was a warning sign located about 390 feet from the center of the curve, Neel said that it falsely indicated that the curve was gentle. Neel determined that a safe speed for maneuvering the curve would be approximately twenty-five miles per hour. III.
¶27. MP&L first asserts that the trial court erred in failing to grant its motion to dismiss, its motion for summary judgment, its motion for directed verdict, its motion for peremptory instruction, and its motion for judgment notwithstanding the verdict. It also argues that the trial court erred in granting Jury Instruction P-4, and in failing to grant Jury Instructions MD-15 and MD-12. Under this assignment of error we are asked to determine whether, under any circumstances, a utility company may be held liable for injuries sustained when an admittedly negligent driver collides with a pole constructed for the purpose of distributing electricity, when the pole is located within the public right-of-way off the main-traveled portion of a road.
¶28. MP&L argues that Vines v. Southwestern Mississippi Elec. Power Ass'n, 241 Miss. 120, 129 So. 2d 396 (1961) answers the question as follows: if someone goes off the main-traveled portion of the road, thus taking the driver out of the category of drivers making ordinary or common use of the road, the utility company is not subject to liability. MP&L maintains that electric utilities are not required to place their poles in order to insure the safety of reckless drivers. According to MP&L, the reason it only has a duty of reasonable foreseeability to those making a proper use of the road is because predicting where reckless drivers such as Tackett will leave a roadway is always unforeseeable. In other words, MP&L suggests that it should not be charged with the responsibility of protecting against negligent drivers who collide with a pole that is located within the public right-of-way but off the main-traveled portion of the road.
¶29. On the other hand, Lumpkin argues that if MP&L knew or should have known of the danger of the placement of this particular utility pole within the public right-of-way (as evidenced by the number of off-road occurrences in this location including one in which the guy wire of this pole was actually hit and the pole knocked down), MP&L at least had a duty to eliminate the danger to the extent practical.
¶30. Miss. Code Ann. § 11-27-43, in pertinent part, states:
All companies or associations of persons incorporated or organized for the [purpose of distributing and selling electricity] are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands. . . provided in all cases such authorization shall meet the requirements of the National Electrical Safety Code. The same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies; or more than is necessary with the convenience of any landowner.
Miss. Code Ann. § 11-27-43 (1972) (emphasis added). This statute has remained in effect and unchanged since January 1, 1972. The pole in question in this case was erected in 1980. Thus, MP&L was then and is now authorized to erect power poles for the purposes of selling and distributing electricity, so long as (1) the NESC requirements are met; (2) there is no resulting danger to persons or property; (3) there is no interference with the common use of roads, streets and water; (4) there is no interference with the use of wires by other wire-using companies; and, (5) the construction does not unnecessarily inconvenience any landowner. Stated differently, the portion of the statute highlighted above expresses several distinct requirements, each denoting a separate mandate. MP&L's argument, relying solely on the third requirement (common use of roads), is therefore too restrictive.
¶31. Section 20, ¶ 211 of the 1961 edition of the NESC provides:
All electric supply and communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practical.
It follows that MP&L has a duty to protect against hazards of which it has or should have knowledge. This section of the NESC certainly does not limit MP&L's duty to protect against and reduce only those hazards occurring on the main-traveled portion of the roadways.
¶32. We have recognized that the violation of the minimum standards established by the NESC constitutes negligence per se. See Gifford v. Four-County Elec. Power Ass'n, 615 So. 2d 1166, 1173 (Miss. 1992) (failure to grant jury instruction that violation of NESC standards constitutes negligence per se is reversible if evidence shows violation occurred). Moreover, the second requirement of § 11-27-43, that power poles must be constructed in such a way so as to avoid endangering people or property, says nothing about a utility company being immune from liability when an accident occurs upon a public right-of-way off the main-traveled portion of the road.
¶33. MP&L argues that the facts in Vines are compellingly similar to the facts in the present case. For all practical purposes that is so. We need not engage in any extensive fact comparison. This matter must be resolved by determining whether the Vines formulation remains the law of this state.
¶34. The statute extant and quoted by the Vines Court, § 2778 of the Mississippi Code of 1942, as amended and recompiled, read as follows:
All companies or associations of persons incorporated or organized for such purposes are authorized and empowered to erect, place and maintain their posts, wires and conductors along and across any of the public highways, streets, or waters and along and across all turnpikes, railroads and canals, and also through any of the public lands; but the same shall be so constructed and placed as not to be dangerous to persons or property; nor interfere with the common use of such roads, streets, or waters; nor with the use of the wires of other wire-using companies; or more than is necessary with the convenience of any landowner.
Vines, 241 Miss. 120, 125, 129 So.2d 396, 397 (quoting § 2778, Mississippi Code of 1942) (emphasis supplied by the Vines Court). One legal distinction in these two cases is that the predecessor statute relied on by the Court in Vines, in setting forth the requirements of power pole/line construction, made no reference to the NESC; while, as pointed out above, the present statute, Miss. Code Ann. § 11-27-43, which the trial court relied on in this case, fully incorporates the requirements of the NESC. Otherwise, the statutes are essentially identical.
¶35. Lumpkin asks us to find that Vines has been overruled sub silentio, citing Spears v. Mississippi Power & Light Co., 562 So. 2d 107 (1990). MP&L states that Lumpkin's argument must fail because the Spears does not address § 11-27-43, and because Spears did not involve the location of a power pole along a public right-of-way. It argues that, unlike Tackett, the Spears driver was driving in an area where he unquestionably had a right to be, not off on some untraveled area.
¶36. The issue in Spears was framed as follows:
[What is the] standard of care owed by an electric power company to an invitee of the business property parking lot owner where the power company has an easement and right-of-way across the parking lot, and the invitee of the property owner is injured on a rainy night when he collided with a dark, unmarked power pole owned by the power company and which occupies a portion of the premises where traffic normally flowed[?]
ertainly, when we exercise our right to utilize our property, we have the duty to avoid creating an unreasonable risk of harm to another. Restatement (Second) of Torts § 297 (1965). Reasonable care is the care a reasonable person would exercise under like circumstances. Id. § 283. Measured by this standard, it would be a question for the jury to determine whether or not the power company met this standard. Whether or not the pole was properly located, lighted or otherwise marked; and whether or not a reasonable person would anticipate contact between the light pole and moving vehicles are jury questions. Was the injury to the plaintiff or to someone using the lot to park a vehicle, foreseeable or one which the defendant would be obliged to anticipate? Was the pole adequately marked? Should it have been surrounded by guard rails or some other device to prevent its being struck with the risk that the transformer located on it might injure persons or property in its fall? We think these and other questions presented material issues of fact which should have been presented to the jury. What we say here is consistent with the case law of other jurisdictions which have discussed similar issues. Georgia Power Co. v. Collum, 176 Ga. App. 61 334 S.E.2d 922 (1985) (power company charged with duty of ordinary care in construction and maintenance of wires, poles, transformer, and equipment). Hellman v. Julius Kolesar, Inc., 399 N.W.2d 654 (Minn. App. 1987) (applied common law test of duty which involves probability or foreseeability of injury to plaintiff). Scheel v. Tremblay, 226 Pa.Super. 45, 312 A.2d 45 (1973) (in locating pole the utility is charged with the duty to locate so as to avoid unreasonable and unnecessary dangers to travelers upon the highway). Davis v. Chrysler Corp., 151 Mich. App. 463, 391 N.W.2d 376 (1986) (issue of breach of duty to properly maintain pole is question for jury). Bourget v. Public Service Co., 98 N.H. 237, 97 A.2d 383 (1953) (question of improper placement and maintenance of utility pole is for jury). Vigreaux v. La. Dept. of Transp. & Devel., 535 So. 2d 518 (La.App.1988) (jury question as to whether utility's placement of pole adjacent to road constituted unreasonable risk of harm to users of road).
Spears, 562 So. 2d at 108 (emphasis added).
¶37. Spears' effect on the vitality of Vines is problematic. Vines dealt with our statute permitting the use of utility poles in public right-of-way and, unlike in Spears, a driver who was not in the traveled portion of that right of way. However, as previously noted, § 11-27-43 clearly mandates that a utility company must not erect its power poles in such a manner as to endanger people or property. We find that this is synonymous with the language in Spears to the effect that a utility company must avoid creating an unreasonable risk of harm to others. Further, § 11-27-43, as enacted after the decision in Vines, states that power poles must be erected in accordance with the provisions of the NESC, which states that utility poles "shall be installed and maintained so as to reduce hazards to life as far as practical." We hold that this places on a utility company the continuing duty to eliminate foreseeable danger. Although the Spears case is factually distinguishable from the present case, the reasoning behind placing these questions before a jury is equally applicable.
¶38. Whatever may be said for the proposition that Vines was overruled sub silentio by Spears, we conclude that insofar as it stands for the proposition that a utility company owes no duty to persons who may, through foreseeable negligence, come in contact with its poles, Vines must be overruled. The duty of the utility company is to exercise reasonable care. That duty is not obviated by the failure of the injured party or another to exercise such care unless it is determined by the factfinder that the latter's conduct was the sole proximate cause of the injury. Vines' holding, if taken to mean that the utility company is liable only to non-negligent drivers, is not in keeping with proper construction of the ...