Cole v. Duke Power Co.

• Decision Date: 03 June 1986
• Docket Number: No. 8514SC1323,8514SC1323
• Citation: 81 N.C.App. 213,344 S.E.2d 130
• Parties: James A. COLE, Jr., Administrator of the Estate of James Anderson Cole, III v. DUKE POWER COMPANY.
• Court: North Carolina Court of Appeals

Page 130

344 S.E.2d 130

81 N.C.App. 213

James A. COLE, Jr., Administrator of the Estate of James Anderson Cole, III v. DUKE POWER COMPANY.

No. 8514SC1323.

Court of Appeals of North Carolina.

June 3, 1986.

William I. Ward, Jr., W. Edward Poe, Jr., Parker, Poe, Thompson, Bernstein, Gage & Preston by Irvin W. Hankins III, Charlotte, and Newsom, Graham, Hedrick, Bryson & Kennon by Lewis A. Cheek and Joel M. Craig, Durham, for defendant-appellant.

Pulley, Watson, King & Hofler by W. Paul Pulley, Jr. and Tracy Kenyon Lischer, Durham, for plaintiff-appellee.

ARNOLD, Judge.

PUNITIVE DAMAGES

Defendant first contends the trial court erred in refusing to dismiss plaintiff's claim for punitive damages, and in its instructions regarding the conduct which would justify an award of punitive damages. G.S. 28A-18-2 in pertinent part provides:

(a) When the death of a person is caused by a wrongful act, neglect or default of another, such as would, if the injured person had lived, have entitled him to an action for damages therefor, the person or corporation that would have been so liable, and his or their personal representatives or collectors, shall be liable to an action for damages, to be brought by the personal representative or collector of the decedent; and this notwithstanding the death, and although the wrongful act, neglect or default, causing the death, amounts in law to a felony....

(b) Damages recoverable for death by wrongful act include:

....

(5) Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence.

Defendant argues that the only types of conduct which can justify an award of punitive damages are an intentional tort, and wilful and wanton negligence. Defendant further contends that the words "gross negligence" do not create a new category of conduct for which punitive damages may be awarded in wrongful death actions, but that gross negligence is merely a restatement of the wilful and wanton negligence test. We disagree.

At common law punitive damages may be recovered only upon a showing of malicious, wilful or wanton conduct. See Hinson v. Dawson, 244 N.C. 23, 92 S.E.2d 393 (1952). However, there is no right of action for wrongful death under the common law. Willis v. Power Co., 42 N.C. App. 582, 257 S.E.2d 471 (1979). The right to recover damages for wrongful death is purely statutory and exists only by virtue of the wrongful death statute. Gay v. Thompson, 266 N.C. 394, 146 S.E.2d 425 (1966). Therefore, we must look to the terms of G.S. 28A-18-2 to determine when punitive damages may be awarded. The statute provides that:

Damages recoverable for death by wrongful act include:

....

Such punitive damages as the decedent could have recovered had he survived, and punitive damages for wrongfully causing the death of the decedent through maliciousness, wilful or wanton injury, or gross negligence.

G.S. 28A-18-2(b)(5) (emphasis added). In determining the meaning of the statute we must interpret its language in light of the following well-established canons of statutory construction.

The intent of the Legislature controls the interpretation of a statute. Burgess v. Brewing Co., 298 N.C. 520, 259 S.E.2d 248 (1979). In ascertaining the intent of the Legislature, it is proper to consider judicial decisions affecting the constitutionality of prior statutes dealing with the same subject matter, and legislative changes, if any, made subsequent to such decisions. State v. Fulcher, 294 N.C. 503, 243 S.E.2d 338 (1978); Milk Commission v. Food Stores, 270 N.C. 323, 154 S.E.2d 548 (1967); Ingram v. Johnson, Comr. of Revenue, 260 N.C. 697, 133 S.E.2d 662 (1963). Word and phrases of a statute may not be interpreted out of context; rather, individual expressions must be interpreted as part of a composite whole, in a manner which harmonizes with the other provisions of the statute and which gives effect to the reason and purpose of the statute. Burgess v. Brewing Co., supra; In re Hardy, 294 N.C. 90, 240 S.E.2d 367 (1978); Watson Industries v. Shaw, Comr. of Revenue, 235 N.C. 203, 69 S.E.2d 505 (1952). To this end, a statute must be construed, if possible, so as to give effect to every provision, it being presumed that the Legislature did not intend any of the statute's provisions to be surplusage. State v. Williams, 286 N.C. 422, 212 S.E.2d 113 (1975); State v. Harvey, 281 N.C. 1, 187 S.E.2d 706 (1972).

Jolly v. Wright, 300 N.C. 83, 86, 265 S.E.2d 135, 139 (1980).

Application of these principles leads to the conclusion that the G.S. 28A-18-2 allows for the award of punitive damages upon the proof of gross negligence. By providing for recovery of punitive damages upon a showing of "maliciousness, wilful or wanton injury, or gross negligence" it appears that the General Assembly intended to establish three separate categories of conduct which would afford a recovery. As Judge Whichard said in his concurring opinion in Beck v. Carolina Power & Light Co., 57 N.C.App. 373, 386, 291 S.E.2d 897, 905 (1982), "[t]o treat the G.S. 28A-18-2(b)(5) phrases 'wilful or wanton injury' and 'gross negligence' as synonymous ... effectively renders one or the other mere surplusage, contrary to the ... foregoing rule of construction." Thus, we hold that G.S. 28A-18-2 allows for a recovery of punitive damages upon a showing of "gross negligence."

Gross negligence is not defined by the statute, however, under prior case law gross negligence is something less than wilful and wanton conduct. See Smith v. Stepp, 257 N.C. 422, 125 S.E.2d 903 (1962); see also Clott v. Greyhound Lines, 9 N.C. App. 604, 177 S.E.2d 438 (1970), rev'd on other grounds, 278 N.C. 378, 180 S.E.2d 102 (1971). Using this definition, we find that there is evidence from which the jury could find that Duke was "grossly negligent."

The court gave the following instruction as to the issue of gross negligence:

Ordinary negligence is the lack of reasonable care. Gross negligence is an extreme departure from the ordinary standard of conduct. It is a very great danger. It is negligence materially greater than ordinary negligence. The difference is one of degree.

Gross negligence is negligence of an aggravated character and a gross failure to exercise reasonable care.

The term implies a thoughtless disregard of consequences without exerting any effort to avoid it.

Gross negligence means a greater absence of reasonable care than is implied by the term, ordinary negligence.

The plaintiff contends and the defendant denies that the defendant was grossly negligent in the following respects:

The defendant failed to place warning signs on the padmounted cabinet in question. Now, the law requires an electric utility company to use reasonable care to protect the public from exposure to dangerous electric wires.

Considering all precautions used by Duke Power Company to protect the public from the high-voltage wires within the padmounted cabinet on May the 23rd, 1978, if you find that the failure additionally to place warning signs on the cabinet on or before the date in question constituted an extreme departure from reasonable care and evidenced a thoughtless disregard for protection of the public without any rational justification, then such failure would be gross negligence.

As to this issue the plaintiff has offered evidence tending to show the padmounted cabinet was installed in 1969. The wires inside were extremely high voltage and deadly. The cabinet was located in a residential area where many children played. The cabinet was not bolted down. It was inspected no more than twice in nine years.

In 1975, one locking device failed and was replaced by hasp padlocks with exposed screws. There were no interior barriers and no double independent locking systems.

Warnings could have been placed on the cabinet at regular inspections at minimal cost and inconvenience.

The box, or cabinet, had nothing on it to indicate the danger inside or who owned the box.

The defendant offered evidence tending to show the cabinet had a reasonably secure locking system. Neither the 1973 Code nor industry practice required warning signs.

The cabinet had been inspected in April, 1978 and was found secure. The locking mechanisms provided adequate protection without warnings.

This is what some of the evidence offered by the plaintiff and defendant on this issue tends to show. You decide what the evidence does show.

Now, I instruct you that if the plaintiff has proved by the greater weight of the evidence that the defendant, Duke Power Company, was grossly negligent in the following respects:

That it failed to place warning signs on the padmounted cabinet on or before May 23rd, 1978; say, if the plaintiff has proved by the greater weight of the evidence that the defendant was grossly negligent in this respect and further proved that such gross negligence was a proximate cause of Anderson Cole's death as I have defined proximate cause to you, then you must answer this issue, yes, in favor of the plaintiff.

If the plaintiff has failed to prove such gross negligence or proximate cause, then you must answer this issue, no, in favor of the defendant, Duke Power Company.

If you answer the third issue, yes, in favor of the plaintiff, then you will answer both the fourth and fifth issues. (Emphasis added.)

These instructions were proper and correctly stated the law as to the issue of gross negligence. Indeed, the emphasized portions above seem favorable to defendant.

While we need not rule on this issue, we believe that there was also evidence from which a jury could have found that the defendant's actions rose to the level of wilful and wanton conduct. Thus, we believe the trial court could have submitted this issue also.

LEGAL DUTIES OF UTILITIES

Duke also contends the trial court erred by denying its motion for a directed verdict...