Entergy Mississippi, Inc. v. Hayes

• Decision Date: 22 April 2004
• Docket Number: No. 2002-CA-00314-SCT.,2002-CA-00314-SCT.
• Citation: 874 So.2d 952
• Parties: ENTERGY MISSISSIPPI, INC. v. Carolyn January HAYES, Individually and as Administrator of The Estate of Lavonne Hayes, Deceased; Javary Lagman January and Lavonne Quintarious Hayes, Minors, by and through Carolyn January Hayes, Mother and Natural Guardian of Javary Lagman January and Lavonne Quintarious Hayes, Minors; and Alvonta Palmer and Tanquinika Palmer, Minors, by and through Bertha Palmer, Mother and Natural Guardian of Alvonta Palmer and Tanquinika Palmer, Minors.
• Court: Mississippi Supreme Court

874 So.2d 952

ENTERGY MISSISSIPPI, INC. v. Carolyn January HAYES, Individually and as Administrator of The Estate of Lavonne Hayes, Deceased; Javary Lagman January and Lavonne Quintarious Hayes, Minors, by and through Carolyn January Hayes, Mother and Natural Guardian of Javary Lagman January and Lavonne Quintarious Hayes, Minors; and Alvonta Palmer and Tanquinika Palmer, Minors, by and through Bertha Palmer, Mother and Natural Guardian of Alvonta Palmer and Tanquinika Palmer, Minors.

No. 2002-CA-00314-SCT.

Supreme Court of Mississippi.

April 22, 2004.

Rehearing Denied June 24, 2004.

John H. Dunbar, Oxford, James W. Snider, Jackson, Walter Alan Davis, attorneys for appellant.

Warren Leon Conway, Gulfport, Marshall E. Sanders, Vicksburg, attorneys for appellees.

EN BANC.

SMITH, Chief Justice, for the Court.

¶ 1. In this wrongful death case, the jury returned a verdict awarding damages to the beneficiaries of Lavonne Hayes, but the trial court reallocated fault and ordered a new trial on damages only. Entergy of Mississippi, Inc. (EMI) appealed the trial court's final order. We find that there was sufficient evidence of liability against EMI to support the jury verdict, that the trial court erred by reallocating to EMI all causal fault allocated by the jury in the first trial to Jim Avis and Associates, Hayes's immune employer, and that the trial court erred by granting a new trial on the sole issue of damages. Therefore, we reverse the judgment against EMI the amount of $6,854,707.02 and render judgment reinstating and affirming the judgment against EMI in the amount of $169,175.00.

FACTS

¶ 2. On October 20, 1994, Lavonne Hayes was electrocuted while he was performing renovation work at a sewage lift station in Anguilla, Sharkey County, Mississippi. Hayes and co-worker Jerry Ledlow were guiding a twenty-one-foot pipe with a two-inch diameter into a hole when the pipe made contact with an EMI uninsulated overhead power line, carrying a voltage of 8,000 to 13,000 volts.

¶ 3. Hayes's widow, Carolyn January Hayes, and his four children, Javary Lagman January ("Bondy") and Lavonne Quintarious Hayes, by and through their mother, Carolyn January Hayes, and Tanquinika Palmer ("Shay"), and Alvonta Palmer ("Roy"), by and through their mother, Bertha Palmer, (Plaintiffs) filed a wrongful death action against Entergy Mississippi, Inc. (EMI) on October 14, 1997, for the death of Lavonne Hayes. The case went to trial on March 22, 2000.

¶ 4. Ledlow testified that he was unaware that there were power lines overhead and that he did not hear anyone give a warning about the power lines to him or to Hayes. No evidence of warning signs on the premises was introduced.

¶ 5. When the power lines were originally constructed in 1974, they were not directly over the lift station. In 1986, the power lines were moved to their current location. The two live wires over the lift station measured 19.37 feet and 23.17 feet above the ground. The pipe came into contact with the higher of the two.

¶ 6. The plaintiffs' expert witness was William Adams in the field of electrical engineering. Adams had been a consulting engineer for 44 years and had previously performed electrical design work at Maxwell and Keesler Air Force Bases. He had previously been qualified and had testified as an expert witness in Mississippi courts numerous times. EMI did not present expert testimony to contradict Adams.

¶ 7. To prepare for his testimony, Adams visited the accident site and reviewed depositions of three people who had been designated by EMI as individuals having relevant knowledge of this case.

¶ 8. Adams testified that the National Electrical Safety Code (NESC) sets forth minimum safety standards for outside electrical installations. He testified that the NESC minimum clearance standards did not apply to the type of work being performed on the day of the accident, specifically that the twenty-foot minimum clearance standard did not apply in this case. Adams testified that NESC standard 012 applied, which required that "construction and maintenance [of power lines] should be done in accordance with accepted good practice for the given local conditions." He testified that the minimum clearances "would not apply and that further, safer methods of construction would have to be used."

¶ 9. Adams testified that the power line became more dangerous when it was moved in 1986 to a point directly over the sewage lift station. Adams testified that any of the following safety measures could have been employed to reduce the hazard of the power line: insulating the lines, posting warning signs, putting streamers or ball on the lines, burying the lines, or moving the transformers and running lowvoltage conductors to the various customers' locations.

¶ 10. Additionally, Adams testified about the foreseeability of an accident such as the one in question. He based his testimony on a consultation with a mechanical engineer, who told him "it was not surprising that they were using twenty to twenty-two-foot lengths of pipe to be replaced or maintained, ... [and] it was not surprising that they got a pipe and a backhoe up into the power line." Adams stated maintenance on the sewage lift station is a regular occurrence. Adams further stated he had received conflicting reports about whether Jim Avis and Associates had notified EMI that work would be performed at the site.

¶ 11. The plaintiffs presented extensive testimonial evidence of the relationship each had with Hayes and their suffering as a result of his death in support of their damages claim for loss of love, society, and companionship. Additionally, Mrs. Hayes testified about her physical health problems. Testimony was also offered that Hayes's daughter Shay has schizophrenia and will be dependent on her family for the rest of her life. Finally, evidence was also offered to show that Lavonne, Hayes's youngest child, is permanently mentally disturbed.

¶ 12. The case went to the jury, and the jury returned a verdict for EMI. However, when the jury was polled, less than nine jurors stated they agreed with the verdict. Cf. M.R.C.P. 48(a). Therefore, the court instructed the jury to continue deliberations.

¶ 13. The jury returned with a second verdict that withstood polling. This verdict awarded damages of $505,000 and apportioned fault three ways: 34% to Jim Avis and Associates (Avis), 33% to Lavonne Hayes, and 33% to EMI.

¶ 14. On May 23, 2000, the trial court entered judgment against EMI for $169,175.00. The plaintiffs filed motions seeking the alternative relief of a new trial on the sole question of damages, a new trial on all issues, the entry of judgment as a matter of law on the liability of Jim Avis and Lavonne Hayes, or for an additur. They argued that the trial court erred in allowing the consideration of contributory negligence of Jim Avis, because the evidence was insufficient on both issues. EMI also filed a post-trial motion requesting a judgment notwithstanding the verdict.

¶ 15. The trial court denied EMI's motion for a judgment notwithstanding the verdict; the court also denied the plaintiffs' motions for additur and for a new trial on all issues. Without ruling the damage award was inadequate, the court ordered a new trial on damages.

¶ 16. The trial court ruled that it had erred by allowing the jury to allocate the causal fault of Avis. The court sua sponte reallocated fault to EMI of 67%. The court based its ruling on Accu-Fab & Construction, Inc. v. Ladner, 778 So.2d 766 (Miss.2001) (Accu-Fab), which the court stated had been released one week before the trial at issue; however, Accu-Fab was handed down in February of 2001, which is almost one year after the case at hand went to trial. Subsequently, Accu-Fab was overruled by Mack Trucks, Inc. v.Tackett, 841 So.2d 1107, 1115 (Miss.2003) (Mack Trucks II) in March of 2003.

¶ 17. After the new trial for damages, the jury returned a verdict of $10,230,906.00, upon which the court rendered judgment on November 27, 2001. Of that amount $10,000,000.00 was for the plaintiffs' loss of love, society, and companionship.

¶ 18. Following the second trial, EMI filed post-trial motions including a motion for judgment notwithstanding the verdict, an alternative motion to amend the second judgment and reinstate the original judgment, and an alternative motion for a new trial or remittitur. The trial court denied all of EMI's motions.

ANALYSIS

I. WHETHER THERE WAS SUFFICIENT EVIDENCE OF LIABILITY AGAINST EMI TO SUPPORT THE JURY VERDICT.

¶ 19. As to jury verdicts in civil cases, we have said that we will not direct a judgment to be entered contrary to the jury verdict unless we have concluded that "given the evidence as a whole, taken in the light most favorable to the verdict, no reasonable, hypothetical juror could have found as the jury found." Busick v. St. John, 856 So.2d 304, 307 (Miss.2003) (citing Snapp v. Harrison, 699 So.2d 567, 569 (Miss.1997); Starcher v. Byrne, 687 So.2d 737, 739 (Miss.1997)). See also Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 151-52 (Miss.1997) (this Court resolves all conflicts of evidence in the appellee's favor).

¶ 20. EMI argues the plaintiffs offered no evidence of the standard of care. EMI bases its argument on the premise that "[i]n a case alleging liability for professional negligence of an engineer, there must be some testimony as to what the standard of care was"; however, the plaintiffs' complaint did not allege the professional negligence of an engineer. The complaint alleged that public utility EMI and its agents breached the "duty to install and maintain its energized, electrical lines in a manner and elevation so as to insure that those performing foreseeable tasks there under with due regard to their own safety would not come into contact with the same..." and that EMI "negligently failed to warn of the danger of its highly energized electrical lines and the dangers associated...