Alabama Power Co. v. Foster
| Decision Date | 29 December 1989 |
| Citation | 555 So.2d 174 |
| Parties | ALABAMA POWER COMPANY v. Sadie FOSTER. 88-611. |
| Court | Alabama Supreme Court |
T. Dwight Sloan of Balch & Bingham, Birmingham, and Carroll H. Sullivan and Edward G. Bowron of Clark, Scott & Sullivan, Mobile, for appellant.
Timothy M. Grogan, Mobile, and Patrick D. McArdle, New Orleans, La., for appellee.
Sadie Foster suffered electrical burns during the course of her employment as a welder at a shipyard in Bayou La Batre, Alabama. She sued Alabama Power Company ("APCo"), alleging that its negligence had proximately caused her injuries. A jury found for Ms. Foster and awarded her $1,000,000 in damages. The trial court entered a judgment on the jury's verdict and later denied APCo's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. APCo appealed. We affirm.
Ms. Foster was welding on the deck of a 90-foot steel-hulled commercial shrimp boat when she was injured. Boats of this kind were built at the shipyard in an assembly-line fashion. Construction on the boats progressed as they were moved, stern (rear end) first, toward a bayou, along a 450-foot railway that extended into the water. The boats were launched from the railway. Four uninsulated high-voltage lines that were owned and maintained by APCo crossed over the railway a distance of approximately 100 to 110 feet from the shore. There was a clearance of approximately 51 feet beneath these lines where they crossed the railway. The highest points on the boats, prior to the installation of the masts and other tall structures, were the tops of the wheelhouses, 1 which were approximately 30 feet above the ground. The masts and other tall structures were installed on the boats on the bayou side of the lines. Cranes with boom extensions exceeding 51 feet were utilized all along the railway on both sides of the lines. APCo had raised the lines to provide the 51-foot clearance because a representative of the shipyard had contacted it and had expressed concern that the boats passing underneath the lines might come in contact with them. Representatives of APCo, who had viewed the shipyard before, during, and after the installation of the lines at the 51-foot height, were aware of the boat-building operation.
The boat on which Ms. Foster was working at the time of her injury was positioned so that the lines crossed over the front part of the wheelhouse. The front part of the wheelhouse was located toward the bow (front end) of the boat. Approximately 15 feet of the bow had not passed under the lines. The boat's mast, which was 25 feet in length, had already been installed on the top of the wheelhouse. Stabilizer pipes were being installed to reinforce the mast. These tubular pipes were approximately three inches in diameter and 40 feet in length. They were being lifted from the ground behind the boat to the top of the wheelhouse by a crane that was located approximately midship, 10 to 12 feet off the right side of the boat, looking forward (starboard). Clay Burroughs was operating the crane and John Ladnier, the hull foreman, was standing on the top of the wheelhouse positioning the stabilizer pipes and giving directions to Burroughs with his hands. Ms. Foster was working on the deck of the boat, approximately eight feet below Ladnier, welding a steel ladder to the wheelhouse. Ms. Foster, who is left-handed, was using an electric arc welder. She testified that the cable that connected the welding machine located on the ground to the welding "whip" that she was holding had become worn. She stated that a "pin hole" in the cable had apparently caused the machine to "short out" on the steel railing on the side of the boat behind her prior to her accident. She testified that she had seen sparks near the railing, but that she had continued to weld.
Burroughs lifted a stabilizer pipe with the crane and swung it across the boat's stern to approximately midship, where Ladnier was waiting on the top of the wheelhouse to receive it. Ms. Foster testified that she saw the pipe and that she grabbed it with her right hand to avoid being hit by it. She further testified that when she touched the pipe she felt as though she was being electrically shocked, but that she could not let go of the pipe. She stated that her body shook and that she was lifted approximately four inches off the deck. She testified that she heard "a big boom" and that she fell to the deck with her clothes on fire.
Ms. Foster, in addition to testifying in her own behalf, presented the testimony of other witnesses, including an APCo employee who had investigated the accident, an electrical engineer, and two physicians. These witnesses collectively testified that the stabilizer pipe had contacted two of APCo's high-voltage overhead lines, that that contact had blown a fuse in a nearby transformer, and that Ms. Foster had suffered electrical burns that could have been caused by the pipe's contacting her and one of the lines at the same time. The engineer testified that in his opinion the "big boom" that Ms. Foster heard was caused when the fuse blew.
John Ladnier testified on behalf of APCo that he heard an "explosion" and that he immediately looked over the side of the wheelhouse and saw that Ms. Foster was lying on the deck with her clothes on fire. He testified further that at the time he heard the "explosion," he had his hands on the stabilizer pipe. He also testified that the pipe was not in contact with any of APCo's lines at the time that he heard the "explosion" and saw Ms. Foster lying on the deck with her clothes on fire. On cross-examination, portions of Ladnier's deposition testimony were admitted into evidence; in them he had stated that he did not "believe" that the pipe had come in contact with the lines because, as best he could remember, he "believed" that his hands were on the pipe at the time he heard the "explosion."
Clay Burroughs, who also appeared on behalf of APCo, testified that he also heard an "explosion." He stated that Ladnier had his hands on the pipe and that following the "explosion" he saw Ladnier look over the side of the wheelhouse and that he heard him shout that Ms. Foster's clothes were on fire. Burroughs also testified that the stabilizer pipe was not in contact with any of the lines at the time that he heard the "explosion" and Ladnier's shouting. Burroughs admitted on cross-examination, however, that he had been watching Ladnier's hand signals prior to the accident. Burroughs stated that immediately after Ms. Foster was injured, he swung the pipe to his right, where it came in contact with APCo's lines. He testified that he then dropped the pipe to the ground and that at no time did the pipe come in contact with any of the lines and any individual at the same time. Neither Ladnier nor Burroughs testified as to exactly what Ms. Foster was doing at the moment she was injured. APCo also presented the testimony of an electrical engineer that Ms. Foster's injuries were not consistent with those that would usually result when one comes in contact with a high-voltage line. The engineer agreed, however, that the stabilizer pipe had come in contact with APCo's lines, that a fuse had blown, and that a loud noise could have occurred when the fuse blew.
The sole issue presented in this case is whether the trial court erred in denying APCo's motion for a judgment notwithstanding the verdict or, in the alternative, a new trial. APCo contends that Ms. Foster's negligence claim should not have been submitted to the jury because, it argues, the evidence was insufficient to show that it had breached its duty to exercise reasonable care in constructing and maintaining its high-voltage lines at the shipyard or that one of its lines was the proximate cause of Ms. Foster's injuries. In the alternative, APCo contends that the verdict is against the weight of the evidence and, therefore, that it is at least entitled to a new trial. APCo does not argue that the jury's award of $1,000,000 in damages was excessive.
Ms. Foster maintains that her negligence claim was properly submitted to the jury on disputed evidence and that the verdict is due to be upheld.
Whether the trial court properly denied APCo's motion for a judgment notwithstanding the verdict turns on whether Ms. Foster satisfied her burden of producing sufficient evidence to show APCo's breach of the appropriate standard of care and a proximate causal connection between APCo's breach and her injuries. Before examining the record, we note that this action was pending on June 11, 1987; therefore, the "substantial evidence" rule, Ala.Code 1975, § 12-21-12, does not apply, and the applicable standard of review is the "scintilla of evidence" rule, which has been explained as follows:
Hammond v. City of Gadsden, 493 So.2d 1374, 1376 (Ala.1986).
In Alabama Power Co. v. Alexander, 370 So.2d 252, 254 (Ala.1979), this Court stated as follows:
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