Benson v. Tennessee Valley Elec. Co-op.

• Decision Date: 30 April 1993
• Parties: Prod.Liab.Rep. (CCH) P 13,622 Jim Loyd BENSON and wife, Shirley Benson, Plaintiffs/Appellees, v. TENNESSEE VALLEY ELECTRIC COOPERATIVE, Hobbs Equipment Company, Teco and James L. Clausel, Defendants/Appellants.
• Court: Tennessee Court of Appeals

Page 630

868 S.W.2d 630

Prod.Liab.Rep. (CCH) P 13,622

Jim Loyd BENSON and wife, Shirley Benson, Plaintiffs/Appellees, v. TENNESSEE VALLEY ELECTRIC COOPERATIVE, Hobbs Equipment Company, Teco and James L. Clausel, Defendants/Appellants.

Court of Appeals of Tennessee Western Section at Jackson.

April 30, 1993 Certiorari Denied by Supreme Court July 26, 1993.

Robert V. Redding, Waldrop & Hall, P.A., Jackson, and S. Craig Kennedy, Deusner & Kennedy, P.A., Selmer, for plaintiffs/appellees.

F. Lloyd Tatum, Tatum and Tatum, Henderson, for defendant/appellant, Hobbs Equipment Co.

Joe Hailey, Hailey & Seaton, Selmer, for defendant/appellant, TECO.

HIGHERS, Judge.

In this products liability case, Jim Benson was injured while working out of a bucket truck owned by his employer, Tennessee Valley Electric Cooperative ("TVEC"). A weld in the lower boom cylinder of the aerial device failed causing the bucket to drop six to eight inches and lunge back and forth several times. The product involved in this case is a vehicle-mounted elevating and rotating aerial device (boom unit) which was mounted on the back of the TVEC truck. TECO manufactured the boom unit and Hobbs Equipment Company ("Hobbs") sold the unit to TVEC.

Plaintiffs Jim Benson and his wife, Shirley Benson, (collectively "plaintiffs," individually "Benson" and "Shirley Benson") filed a lawsuit against TECO, Hobbs, TVEC and James L. Clausel, who was an employee of TVEC. Hobbs filed a cross claim against TECO for indemnity. The trial court granted summary judgment in favor of TVEC and Clausel and the case was ultimately tried before a jury against TECO and Hobbs. The court entered a $160,000 jury verdict in favor of Benson and a $25,000 jury verdict in favor of Shirley Benson and against Hobbs and TECO. Hobbs and TECO appealed.

The parties present a total of twenty-nine issues for our review, some of which are identical. We affirm.

TECO is an Indiana based company engaged in manufacturing boom units. Hobbs is an independent business located in Nashville, Tennessee, engaged in selling and providing repair and maintenance for boom units. In 1983, TECO sold the boom unit involved in this case to Hobbs who sold the device to TVEC and mounted it on a TVEC truck.

In February of 1986, Odell Franks, a TVEC mechanic, asked Hobbs to send a repairman to TVEC to help with repairs on the boom unit. Franks had worked as a mechanic for TVEC for twenty-three years. He performed most of the welding at TVEC but was not a certified welder. Franks called on Hobbs for help when he had repair work that he could not handle. There was no existing repair contract between Hobbs and TVEC.

Hobbs sent A.C. Stewart to TVEC to help Franks with the repairs. Stewart is a field service mechanic for Hobbs where he has been employed for seventeen years. Stewart had serviced TVEC equipment since 1974 and worked with Franks on several occasions. Stewart was not a welder and Franks knew that Stewart did not weld.

When Stewart went to TVEC he determined that certain pins and washers in the lower boom cylinder needed to be replaced. The function of the pin at issue is to hold the end of the lower boom cylinder and to lift the boom up and down. Stewart ordered the parts from TECO and returned to TVEC where he and Franks removed the lower boom cylinder and replaced the pins. They then attached bolts to the washers. The last step in the repair process was to weld the pin and the washer together to keep the pin from escaping. Franks did the welding.

On May 2, 1986, Benson was trimming tree limbs away from power lines while standing in the bucket suspended from the boom unit. Suddenly the pin holding the lower boom cylinder in place escaped and the boom unit dropped six to eight inches. The pin failure caused the bucket to jerk and produced two to three hard lunges. When the bucket came to rest, one of Benson's legs was out of the bucket and his elbow was jammed down between the bucket and the boom. He pulled himself back into the bucket and waited two hours for another bucket truck to arrive to help him down from his position. Benson said that after the accident his ribs were aching, his stomach was burning and he felt dazed. Benson said that he injured his left shoulder, neck, lower back, stomach muscles, ribs, right hip and leg. He went to lunch with several co-workers and then returned to TVEC where he told his supervisor that he was going to the doctor.

Benson went to Dr. Peters who sent him to the hospital for x-rays. Apparently Benson's x-rays were normal. Benson returned to Dr. Peters on May 8, 1986, and Dr. Peters referred Benson to Dr. John Freeman, an orthopedic surgeon who treated Benson from May 8, 1986 through June 3, 1986. The record is silent as to what type of treatment Benson received except for a reference to "medication." Benson testified that his injuries did not improve during his visits to these physicians.

Because of problems with his stomach muscles, Benson returned to Dr. Freeman who referred Benson to Dr. Green on that same day, June 3, 1986. Dr. Green saw Benson on four other occasions up until October 16, 1986, and he treated Benson with pain and arthritis medication and muscle relaxants. On October 21, 1986, Dr. Green referred Benson back to Dr. Freeman who referred Benson to Dr. Joseph Rowland, a neurological surgeon.

Dr. Rowland's depositional testimony was read into evidence. Dr. Rowland treated Benson from October 23 through November 17, 1986. Dr. Rowland hospitalized Benson from November 2 through November 7, 1986, to perform a myelogram and a CAT scan. The test results of the myelogram were consistent with a bulging or degenerative L-4 disc on the right side but the CAT scan results showed no evidence of a bulging or ruptured disc. Dr. Rowland testified that these results corresponded clinically with the pain in Benson's right leg but Dr. Rowland concluded surgery was unnecessary because of an absence of any neurological findings. When a disc ruptures or bulges it can put pressure on the nerves which start in the back and go down the leg, however, in Benson's case there was not enough nerve impairment to necessitate surgery. Dr. Rowland testified that Benson did not have a medical disability from a neurological standpoint and that Benson's bulging or degenerative disc most likely was present before the accident but may have been aggravated by it. He treated Benson with physical therapy and muscle relaxants.

From December 19, 1986 through May 16, 1988, Benson visited various physicians. Benson's primary complaints were lower back pain, stomach muscle problems, numbness in his right leg and toe dropping. He was treated with muscle relaxants.

Benson's lawyers referred him to Dr. Richard Ennis, an orthopedic surgeon who examined Benson on several occasions from May 16, 1988 up until the time of trial. Dr. Ennis' depositional testimony was read into evidence. Dr. Ennis diagnosed Benson with degenerative disc disease and degenerative arthritis of the lumbar spine with intermittent sciatica. He also noticed degenerative arthritis of the cervical spine and chronic abdominal muscle weakness secondary to the injury. Dr. Ennis prescribed medication for arthritis and pain and fitted Benson with a back support brace. He gave Benson a 15% permanent impairment rating to the body as whole based on degenerative changes in the lumbar spine, CAT scan and myelogram results which showed abnormalities of the L-4 disc and an EMG which showed atrophy of the leg and changes consistent with the L-4 disc abnormality. He testified that Benson should not lift over twenty-five pounds with any degree of frequency. Dr. Ennis stated that an accident of the type in which Benson was involved is commonly followed by degenerative changes such as Benson's. Dr. Ennis testified, however, that he could not say whether the May 1986 accident absolutely caused Benson's arthritis or aggravated a pre-existing condition because he had not viewed any x-rays from 1986.

Apparently at the request of TVEC, Dr. Kent Jones, a physician who practices general and vascular surgery, examined Benson because of his complaints of abdominal pain. Dr. Jones' depositional testimony was read into evidence at trial. Dr. Jones stated he was unable to demonstrate any hernial strain or tenderness in the abdominal wall that would account for Benson's complaints of pain. Dr. Jones stated that Benson's pain appeared to be more musculoskeletal indicating injury to the muscles just along or above the bone of the hip joint and over the right kidney. Dr. Jones further testified that Benson would experience pain if his work involved manual labor because he was experiencing pain without doing manual labor.

At the time of trial, Benson was under Dr. Ennis' care but was not taking any medication for his injuries. Benson testified that his injuries from the accident have not improved. After the May 28 accident Benson never returned to his employment at TVEC. Benson testified that his ability to do any physical activity is very limited.

Benson testified that at the time of the accident he was making approximately $8.50 per hour and that he would have retired at age sixty-two or sixty-five. Benson testified after the accident that he worked as a security guard for four days but walking for long periods of time caused him too much pain. He has been unable to find any other employment.

Benson and his wife had been married for twenty-five years at the time of the trial. Shirley Benson testified that she and her husband have changed bedrooms because Benson is so restless at night and she has to get up and go to work in the mornings. She testified that Benson is unable to help her around the house as he did before the accident.

On April 30, 1987, plaintiffs filed a lawsuit against, as pertinent on appeal, TECO and Hobbs. Plaintiffs' complaint contained allegations against TECO for negligent design, manufacturing, testing and...