Griffith v. Entergy Miss., Inc.

• Decision Date: 01 September 2016
• Docket Number: NO. 2014-CA-00774-SCT,2014-CA-00774-SCT
• Parties: Walter Griffith, Jr., Commerce and Industry Insurance Company and Bomac Electric, Inc. v. Entergy Mississippi, Inc.
• Court: Mississippi Supreme Court

203 So.3d 579

Walter Griffith, Jr., Commerce and Industry Insurance Company and Bomac Electric, Inc.

v.Entergy Mississippi, Inc.

NO. 2014-CA-00774-SCT

Supreme Court of Mississippi.

September 1, 2016

WAYNE E. FERRELL, JR., ADRIENNE P. PARKER, ATTORNEYS FOR APPELLANTS

JAMES E. GRAVES, IIICHARLES E. ROSS, ATTORNEYS FOR APPELLEE

BEFORE WALLER, C.J., LAMAR AND BEAM, JJ.

LAMAR, JUSTICE, FOR THE COURT:

¶1. Walter Griffith, Jr. was critically injured while attempting to attach a ten-foot piece of metal conduit to an electrical pole owned by Entergy Mississippi, Inc. ("Entergy"). Griffith later filed a complaint against Entergy, alleging grossly negligent and willful conduct and requesting compensatory and punitive damages. The trial judge ultimately granted Entergy's motion for summary judgment, and Griffith now appeals to this Court. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2. Griffith is a licensed, master electrician—the highest credential attainable for professionals in the trade—with roughly thirty years of experience. In September 2005, Griffith was employed by BOMAC Electric, a subcontractor hired to provide electrical service to a nonresidential/commercial building owned by Kelly Dabbs Realty in Ridgeland, Mississippi.

¶3. Knowing that neither Griffith nor his coworker, Aubrey Wallace, was qualified to work on high-voltage lines,¹ Bryan Tompkins, the president of BOMAC Electric (and Griffith's direct supervisor), testified via deposition that he telephoned Keith Mallett, an Entergy service supervisor. Tompkins requested that an Entergy electrician install the necessary conduit on its pole, so that Griffith and Wallace could run a secondary wire from the Kelly Dabbs building up the pole to the transformer.

¶4. But Mallett declined Tompkins's request, informing Tompkins that—because the installation was nonresidential—BOMAC and its employees were responsible for installing the conduit and the service line to the pole, pursuant to the terms of its service policy. Mallett then instructed Tompkins that BOMAC's employees were to stay at least three feet below the transformer while performing their work to ensure that they were always more than ten feet from the nearest high-voltage line at the top of the pole. Tompkins relayed this instruction to both Griffith and Wallace.

¶5. On September 14, 2005, Griffith and Wallace got into a bucket truck, while a third BOMAC employee stood at its base as a "spotter" to ensure no traffic approached the lift and that the electricians maintained a safe distance from the high voltage wires. When Wallace entered the bucket, he laid a ten-foot piece of conduit across the rail on the top of the lift, between his body and the controls. With his back to the high voltage lines, Wallace began to operate the lift. At the same moment, the employee acting as a spotter on the ground became distracted and failed to warn his coworkers that they were nearing the high-voltage electrical lines. Griffith, however, recognized that the lift was inching too close to the high-voltage lines, and he mentioned to Wallace the proximity of the lift to the power line.

¶6. Wallace testified via deposition that, once the two were in the air, Griffith assisted in directing his navigation of the lift while handling the secondary wire. Wallace then flipped the ten-foot piece of conduit vertically, inside the bucket, where it made contact with one of the high-voltage lines attached to the cross arm of the Entergy pole, immediately causing both Griffith and Wallace to be thrown to the floor of the bucket and to sustain severe injuries.

¶7. In September 2007, Griffith filed a complaint against Entergy, BOMAC, Tompkins and Tompkins Electric Co., Inc.² Griffith alleged that Entergy was grossly and willfully negligent, and that it had a nondelegable duty to "send a crew to locations where individuals are operating near an electrical transformer or electrical power lines." Griffith also alleged that Entergy was grossly negligent when it "allow[ed the] electrical lines to remain energized" and when it failed to send a crew, or to supervise the operations, or to properly instruct BOMAC employees.

¶8. After a period of discovery, Entergy moved for summary judgment. Entergy argued that Griffith had "failed to establish an essential element of any negligence claim, namely that Entergy had a duty to perform any of the acts he alleges it should have performed." Specifically, Entergy argued that it had no duty to perform the work at issue nor to supervise Griffith's work. Entergy argued further that it had no duty to de-energize the lines because Griffith undisputedly had failed to comply with the statutory requirement³ that he notify Entergy that he would be working within ten feet of high-voltage lines. In fact, noted Entergy, "it is undisputed that [Griffith] knew he was to stay at least [ten feet] away."

¶9. Griffith responded and attached an affidavit from his expert, professional engineer Donald W. Zipse.⁴ Zipse provided several reasons why he viewed Entergy's actions as "grossly negligent." Griffith also argued in his response that Entergy had violated its own Customer Installation Standards for Electric Service (the "Manual"), which said that Entergy would "install any conduits and conductors to be attached to its poles." Griffith argued further that Entergy, as a provider of electricity, has the "highest duty of care," and that it should have anticipated and guarded against the type of injuries that Griffith suffered.

¶10. Entergy then filed a motion to strike portions of Zipse's affidavit. Entergy argued that Zipse's affidavit "offer[ed] several opinions that were not previously disclosed even in the late expert designation that this Court allowed [Griffith] to provide two months after his expert designation deadline." Entergy argued that Zipse's "new liability theories" were untimely, and that Zipse's theory about "a neutral wire connected to the pole below the transformer" should be struck as unreliable under Mississippi Rule of Evidence 702.

¶11. After a hearing, the trial judge entered an order dated April 9, 2012, disposing of several outstanding motions, including portions of Entergy's motions to strike and for summary judgment. As for Entergy's motion to strike portions of Zipse's affidavit for being untimely, the trial judge noted

Entergy argues the following opinions were for the first time disclosed in [Zipse's] affidavit: (1) a neutral wire located below the transformer was energized—before the affidavit[,] plaintiff only contended energized lines above the transformer posed a risk, (2) that plaintiff's perception of the overhead lines was distorted and that Entergy should have had some type of device to warn of their presence, (3) Entergy violated NESC⁵ and (4) Entergy was negligent for failing to train or supervise plaintiff.

After examining Griffith's expert designations, the trial judge granted Entergy's motion to strike Zipse's affidavit testimony regarding the three "new liability theories."⁶

¶12. Concerning Entergy's argument that Zipse's "neutral wire" theory was unreliable under Rule 702, the trial judge found:

Zipse's second affidavit discusses the neutral conductor which would have been below the transformer ... The Court agrees with Entergy's causation argument regarding the neutral conductor, [P]laintiff was harmed by the high voltage lines above the transformer. Pages 79 (the end) of the affidavit revolve around "semi-insulated cable." Specifically, the affidavit states semi-insulated cable would have been a preventative measure to prevent the, "accident resulting from bare energized overhead conductors. ["] After having carefully considered the issue, having reviewed the complaint and designation, the Court is not prepared to strike pages 79; however, the defense may raise a Daubert⁷ challenge either at or immediately preceding trial.

¶13. As for Entergy's motion for summary judgment, the trial judge told the parties that they should

read this order carefully to see which theories this Court, through various prior rulings in this order, has excluded. Again, the Court agrees with Entergy's argument, "any alleged failure to warn [plaintiff] about the danger of the neutral wire was not a proximate cause of the accident." The Court has also excluded several of Plaintiff's theories as being untimely: (1) any alleged violation of the NESC standards, (2) Entergy's alleged failure to install devices that would have warned plaintiff of the presence of overhead lines, and (3) that a neutral wire located below the transformer was energized.

However, there still remains a theory the Court has not stricken, which is the alleged negligence of Entergy regarding the lines above the transformer, and the alleged failure to use semi-insulated cable—again such expert testimony may be subject to Daubert later.

Finally, concerning Griffith's claim that Entergy had violated its own installation standards, the trial judge found that

Entergy's Customer Installation Standards [the "Manual"] specifically warned local rules shall govern, importantly, regardless of the intent express or implied of the Standards. Therefore regardless of the implied or express intent of the Standards, the PSC's Policy for the Extension of Underground Electric Distribution, specifically the section regarding nonresidential underground service lines, controls and provides it was the duty of the customer and not Entergy to install the line and conduit. Therefore, Entergy did not have a duty to be present and cannot be held potentially liable for failure to do so. The Court would further note the PSC policy at issue specifically provides [for] metal [conduit] and not PVC.

¶14. Thus, following the trial court's April 9, 2012, Order on the outstanding motions, one issue remained: whether semi-insulated cable (i.e., tree wire) would have prevented the "accident resulting from bare overhead conductors." In other words, was Entergy negligent when it used "bare...