Central Alabama Elec. Co-op. v. Tapley

CourtSupreme Court of Alabama
Citation546 So.2d 371
Decision Date12 May 1989

William P. Cobb II and Patricia A. Hamilton of Balch & Bingham, Montgomery, for appellant.

Randall S. Hayes and Larry W. Morris of Radney & Morris, Alexander City, for appellee.


Central Alabama Electric Cooperative ("CAEC"), a cooperative non-profit membership corporation, appeals from a judgment against it on a general jury verdict in a wrongful death case. Janice C. Tapley sued as a result of the electrocution of her husband, Wendall M. Tapley. This action was brought pursuant to Alabama Code 1975, § 25-5-11(a), which gives to dependents of an employee, killed under circumstances that might create liability on the part of a third party, the right to commence an action against that third party. CAEC filed motions for a directed verdict on the issues of negligence, wantonness, and Tapley's contributory negligence. The trial court denied these motions, and the case was submitted to the jury. After the jury returned a verdict in the amount of $1 million, CAEC filed a motion for a judgment notwithstanding the verdict on the issues of negligence, wantonness, and Tapley's contributory negligence. This motion, too, was denied.

Tapley, a truck driver employed by Diversified Support Services to haul asphalt and related materials to and from an asphalt plant, was killed when he raised the "trailer dump" of his tractor-trailer rig into an uninsulated electric distribution line ("line") owned by CAEC. Tapley was called to work, unexpectedly, around 6:00 o'clock on the morning of his death. Around 7:45 A.M. that morning, Tapley was attempting to clean water, dirt, and other debris from his trailer dump prior to taking on a load of asphalt. He positioned the rig underneath the line, raised the trailer dump into the line, and, while standing on the wet, muddy ground beside the truck, apparently reached back into the cab and contacted the dump control switch, apparently attempting to raise or lower the trailer dump.

The line with which Tapley's trailer dump came in contact had been erected by CAEC within a week of Tapley's death, pursuant to a request by Pee Wee Ingram, one of the owners of the asphalt plant. Hampton Holman, CAEC's district manager, and Lewis Reynolds, CAEC's lead lineman, met with Ingram prior to construction of the line to discuss the type of electrical service needed and the location of the line necessary to provide that service. The CAEC representatives saw trailer dumps similar to the one operated by Tapley, as well as other equipment, at the asphalt site. CAEC looked at several alternative routes by which to string the line to supply electrical power so that the line could go to a switchbox already in place next to the asphalt plant, as Ingram had requested. While discussing the possibility of stringing the line across the areas of stockpiling (which areas required the use of trailer dumps in an upright position), Ingram stepped off the length of a trailer dump and told CAEC's representatives that the trailer, including the height of the bed and tarpaulin rack, would be between 35 and 36 feet, if it could have been raised absolutely perpendicularly. Using this information, CAEC determined that it could not string the line across areas of stockpiling, where dumping was obviously taking place. Ingram agreed with this and with CAEC's determination to string the line across the roadway to the asphalt plant.

There was no designated area for drivers to clean out their trailer dumps prior to taking on a load of asphalt. Viewing the evidence most favorably to Tapley, we find that the area where Tapley was attempting to clean out his trailer dump at the time of his death was the firmest and, thus, appeared to be the safest area. There was also other evidence that showed that there were several other areas away from the line, with no overhead obstructions, where Tapley could have cleaned out his trailer dump--for example, the roadway, from the entrance gate toward an incline, along which trailers were parked from time to time; a large area on a hill, where trailers were placed from time to time; and another area where trailers were parked in which crushed rock had been placed.

The roadway on which the accident occurred runs east to west, between a quarry operation on the south side and the asphalt operation on the north side. Over CAEC's objection, the trial court allowed evidence that eight to nine years earlier, for a different company, CAEC had placed three orange markers or balls on a separate power line that runs parallel to the left of the roadway in the quarry area. There were no other orange balls or any warning devices placed anywhere else in the area, and there were other electric lines that crossed the roadway into the plant on which no orange balls were placed. It is undisputed that CAEC was told by Ingram, prior to the erection of the line involved in this action, that there would be no stockpiling or placing of anything else on the ground in the area chosen for service. In addition, and again over CAEC's objection, the trial court allowed evidence of CAEC's placement of orange balls and ribbons, subsequent to the accident, upon the line that Tapley contacted, as well as Holman's testimony that he had intended to place an orange ball over the roadway (even though Ingram had told him there would be no dumping), but that he did not have any in stock. Reynolds testified that at the time he constructed the line "he didn't see any reason to put a ball there," because he was told that there would not be unloading or dumping along this roadway.

It is undisputed that the height of the line was 6 1/2 to 8 feet above the National Electrical Safety Code ("NESC") minimum requirement. However, Tapley's expert testified that the height of the line was in violation of the NESC, because the "given local conditions were not considered," and, he said, "local conditions" means that "you should take into consideration everything that's possible to take into consideration to preserve the safety of the lines."

With that brief factual background, we proceed to consider all seven issues raised by CAEC. We, of course, will develop the facts more fully as the resolution of each issue requires.


The first issue CAEC raises is the constitutional validity of Code 1975, § 6-5-410, the Alabama wrongful death statute, under the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the Constitution of the United States. 1 The primary attack pressed by CAEC is that, under Alabama's unique wrongful death statute, it is fundamentally unfair 1) for juries to award punitive damages for, in some cases, including this one, simple negligence (or misconduct less than intentional misconduct), and 2) to permit juries to assess punitive damages without standards to guide the determination of an appropriate amount.

A. Fourth, Fifth, and Sixth Amendments

We will not analyze the appellant's contention that § 6-5-410, or an award of punitive damages generally, implicates the Fourth, Fifth, and Sixth Amendments, for it has not identified what specific rights it feels have been violated. Moreover, CAEC has made no specific arguments under either amendment, and this Court will not speculate or search for a particular basis for a constitutional challenge. See A.R.App.P. 28(a)(5); see also Henderson v. Alabama A & M Univ., 483 So.2d 392 (Ala.1986). To the extent that CAEC alleges a violation of its rights to due process of the law, we address that argument under our treatment of the Fourteenth Amendment, infra. Any other Fourth, Fifth, or Sixth Amendment issue is waived under state procedural law, because CAEC has neither specifically argued nor specifically identified any other particular right.

B. Eighth Amendment

CAEC next maintains that the fact that our wrongful death statute mandates punitive damages requires us to analyze the "excessive fines" clause of the Eighth Amendment. A majority of this Court squarely rejected that very argument in Industrial Chem. & Fiberglass Corp. v. Chandler, 812 So.2d 547 (Ala.1989). In Industrial Chemical, we relied heavily on Ingraham v. Wright, 430 U.S. 651, 97 S.Ct. 1401, 51 L.Ed.2d 711 (1977). As the Court in Ingraham noted, the provisions of the Eighth Amendment may apply to punishments that, although not strictly criminal, are quasi-criminal in nature. Ingraham, 430 U.S. at 669 n. 37, 97 S.Ct. at 1411 n. 37. We refuse to reason, however, that, because the "excessive fines" clause may apply to quasi-criminal sanctions, such sanctions include those that involve allegedly excessive civil jury verdicts. Such circular reasoning would make little sense and bad law. Consequently, on the authority of Industrial Chemical, we reject the argument that the judgment in this case implicates the Eighth Amendment.

C. Fourteenth Amendment

CAEC's final constitutional argument is that it has been denied its rights to procedural and substantive due process under the Fourteenth Amendment by the judgment below.

1. Procedural due process

We find that the procedural due process issue has not been adequately preserved for our review, due to noncompliance with fundamental concepts of issue preservation under state law. As we stated in Bevill v. Owen, 364 So.2d 1201, 1203 (Ala.1979):

"It is a fundamental rule of appellate procedure that, regardless of [the] merits of [an] appellant's contentions, appellate courts will not review questions not decided by the trial court. McWhorter v. Clark, 342 So.2d 903 (Ala.1977). The Supreme Court cannot put a trial court in error for failure to rule on a matter which, according to the record, was not presented to nor decided by it. Defore v. Bourjois, Inc., 268 Ala. 228, 105 So.2d 846 (1958)."

CAEC's procedural due process argument essentially progresses on three tracks. First, it argues that defendants subject to the...

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