Mississippi Power & Light Co. v. Lumpkin, 92-CA-00356-SCT.

• Decision Date: 26 February 1998
• Docket Number: No. 92-CA-00356-SCT.,92-CA-00356-SCT.
• Citation: 725 So.2d 721
• Parties: MISSISSIPPI POWER & LIGHT COMPANY v. Leslie LUMPKIN, Individually and as Mother and Next Friend of Kristen Black, a Minor.
• Court: Mississippi Supreme Court

725 So.2d 721

MISSISSIPPI POWER & LIGHT COMPANY v. Leslie LUMPKIN, Individually and as Mother and Next Friend of Kristen Black, a Minor.

No. 92-CA-00356-SCT.

Supreme Court of Mississippi.

February 26, 1998.

Rehearing Denied August 6, 1998.

Natie P. Caraway, Wise Carter Child & Caraway, Jackson, Joseph P. Wise, Jackson, Attorney for Appellant.

William Liston, Winona, Dennis C. Sweet, III, Langston Frazer Sweet Freese, Jackson, Attorney for Appellee.

EN BANC.

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.

I.

¶ 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.

II.

¶ 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...