Coca-Cola Bottling Co. v. Gill
| Decision Date | 13 March 2003 |
| Docket Number | No. 01-768.,01-768. |
| Citation | 100 S.W.3d 715 |
| Parties | The COCA-COLA BOTTLING COMPANY OF MEMPHIS, TENNESSEE, d/b/a Coca-Cola Bottling Company of Arkansas, v. Fred and Retta GILL. |
| Court | Arkansas Supreme Court |
and Barrett & Deacon, A Professional Association, by: D.P. Marshall Jr. and Leigh M. Chiles, for appellant.
Whetstone Law Firm, by: Bud Whetstone; and Law Offices of James F. Swindoll, by: James F. Swindoll, for appellees.
Appellant, The Coca-Cola Bottling Company of Memphis, Tennessee, d/b/a Coca-Cola Bottling Company of Arkansas, appeals a judgment in the amount of $1,341,666.67 in favor of appellee Fred Gill and a $182,500 verdict in favor of appellee Retta Gill. The total judgment of $1,524,166.67 was reduced by $100,000 due to the Gills' settlement with Waymatic, Inc., making the total judgment $1,424,166.67. Coca-Cola raises three grounds for reversal: (1) Coca-Cola did not violate its duty of ordinary care owed to Fred Gill; (2) the circuit court abused its discretion in barring Coca-Cola from using the Gills' nonsuited allegations against Waymatic, Inc.; and (3) the circuit court abused its discretion in qualifying Jimmy Clark as an expert witness and in admitting into evidence his opinion regarding the cause of Mr. Gill's injuries. We affirm the judgment and the order denying Coca-Cola's posttrial motions.
The facts are gleaned from the testimony at trial. On April 7, 1998, Fordyce High School requested a Coca-Cola concession trailer for use at the Redbug Relays track meet to be held at the high school. Coca-Cola owns a small fleet of portable concession trailers which it loans to customers, including Fordyce High School, for use at various events and which are towed behind vehicles to their various destinations. Coca-Cola delivered concession trailer # 308 to the high school on the date of the accident and left it at a place where the high school principal, Steve Daniel, instructed it to do so. A 120-foot, 15-amp cord, which was permanently attached to the trailer, was plugged into a receptacle in the field shed with a threeprong plug for grounding. The receptacle ground wire in the shed had been disconnected. No auxiliary grounding system in the form of an eight-foot metal rod beside the trailer was used. School employees set up the trailer, and while doing so, Fred Gill, who was then age 70 and a custodian at the high school, was injured by an electrical shock when he raised the windows of the concession trailer. Steve Daniels heard Mr. Gill make a strangled noise when he plugged in the trailer. He then tried to help Mr. Gill, and was shocked with enough force to knock him to the ground when he touched him. He then touched the trailer and felt current go through his hand. He immediately unplugged the trailer. Mr. Gill fell to the ground. The shock broke both of Mr. Gill's shoulders and burned his hands and feet. Mr. Daniel testified that Mr. Gill was unconscious and stopped breathing for a period of time. He suffered permanent injuries as a result and, according to his brothers' testimony, he is confined to a wheelchair.
On January 6, 1999, the Gills filed suit against Waymatic, Inc., the manufacturer of the trailer at issue in this case, and Coca-Cola. The complaint alleged that "a Coca-Cola vending trailer manufactured by ... Waymatic, Inc. electrically shorted to ground through plaintiff Fred Gill's body and as a direct and proximate result, caused damages." The Gills asserted a two-part products-liability cause of action against Waymatic. They asserted that the trailer had been manufactured in a defective and unreasonably dangerous condition. Specifically, they alleged:
• that the trailer had no "self-sufficient or ground fault system;" • that the trailer had "inadequate wiring precautions" during the design and manufacture of the trailer;
• that the trailer had inadequate warnings to users that it did not have a sufficient grounding system;
• that Waymatic knew that the electrical system in the trailer was inadequate and failed to recall it;
• that Waymatic failed to adequately warn users against the dangers of the trailer's electrical system.
The Gills' second allegation against Waymatic was that it had negligently designed the electrical system in the trailer.
The complaint further alleged that Coca-Cola "negligently failed to maintain or monitor the decaying electrical system or negligently failed to inspect said trailer, all of which were the proximate cause of the injuries of [the] plaintiff ...." The complaint asserted joint and several liability against Waymatic and Coca-Cola and asked for compensatory damages against Coca-Cola and both compensatory and punitive damages against Waymatic.
On July 11, 2000, the Gills filed their first amended complaint. In the amended complaint, the Gills added two allegations to its negligence claim against Coca-Cola: (1) Coca-Cola negligently removed the lug nut from the trailer through which a wire could be threaded to attach to a metal rod as part of an auxiliary grounding system; and (2) Coca-Cola negligently failed to warn users of how to use the trailer safely. The Gills' claims against Waymatic were left unchanged. On October 6, 2000, the Gills filed their second amended complaint and added two allegations to support their strict-liability claims against Waymatic: (1) Waymatic failed to instruct users on grounding the trailer and in the use of the auxiliary grounding system, and (2) Waymatic failed to inform users that use of the auxiliary grounding system was necessary for the trailer's safe operation. In this pleading, the Gills dropped their punitive damages claim against Waymatic.
Just before trial, the Gills settled their complaint against Waymatic for $100,000. On February 1, 2001, the circuit court granted the Gills' oral motion to nonsuit their lawsuit against Waymatic. On February 2, 2001, the circuit court held a pretrial motions hearing on both Coca-Cola's motion for summary judgment and its motion in limine to allow admission of the Gills' allegations against Waymatic contained in the nonsuited portions of their complaint. The circuit court denied both motions.
On February 5, 2002, the trial began and lasted two days. Mike Easterwood, the president and CEO of Waymatic, testified for the Gills via deposition. He testified generally about Waymatic's "S" type of concession-stand trailer, of which trailer # 308 is an example and described the auxiliary grounding system that Waymatic provides with them. The grounding system, according to Mr. Easterwood, is simply a lug nut with a hole in it, mounted on the tongue of the trailer. The grounding system is operated by threading a piece of copper wire through the hole and the other end of the wire to a grounding rod — an eight-foot metal pole which is driven into the ground. He described the auxiliary grounding system as a safety measure that assures that the trailer is always grounded. He testified that he considered such lug nut grounding systems standard in the industry and that he assumed that customers who bought the trailers would realize the purpose of the lug nut. On cross examination, Mr. Easterwood admitted that Waymatic does not supply a grounding wire or rod with the trailers, only the lug nut; nor does Waymatic provide its customers with instructions on how to use the lug nut.
Several witnesses testified and gave their opinions about what caused Mr. Gill's injuries. Mr. Edward McMillan testified that he worked for Ledbetter Electric as an electrician and was dispatched the day of the accident to the high school at the request of the high school, where he examined the trailer which was still "hot." His most definitive statement on causation came during cross-examination: "It's my opinion that the cause of the accident as it was described to me was the disconnected ground wire in the shed." He agreed with the Gills' theory of the accident when he was asked in a hypothetical question about cord shorting and then moving the cord. On cross-examination, however, Mr. McMillan disagreed with the assumption of the hypothetical and stated that he did not think there was a problem with the cord based on his testing of the shed receptacle and the trailer.
Mr. Jimmy Clark testified as an expert and fact witness for the Gills and blamed wiring in the cord and trailer as causes of the accident. He testified on re-direct examination:
[I]f you're wanting to talk about probabilities, I think it's a 100% probability that the fault that caused the incident that hurt Mr. Gill was in the cord or the concession stand. If you want to consider that whole thing as a package, it's 100% in my opinion that that's what happened.... Had it been grounded, Mr. Gill would not have been hurt.
He further testified on re-cross examination that even if the shed receptacle had been grounded, it would not have guaranteed Mr. Gill's safety:
It could have been grounded at the receptacle in the shed, but that doesn't necessarily mean that it wouldn't have done the same thing. I'm telling this jury that a ground wire on the receptacle in the shed that is required by the National Electrical Code would not necessarily have protected someone touching the trailer even if it was electrified.
Mr. Clark further testified that a new cord had replaced the older cord by the time he examined the trailer four months after the accident. He said that "it was 95% probable that it was the cord" that caused the accident. He described the percentage as a "wild guess." He opined that had the cord been grounded by an auxiliary system, the accident would not have occurred.
Mr. Peter Reynolds testified as an electricity expert for the Gills and concluded that the combination of an ungrounded receptacle in the shed, the lack of an auxiliary grounding system with a ground rod, and electricity...
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