Gifford v. Four-County Elec. Power Ass'n, FOUR-COUNTY

• Decision Date: 17 December 1992
• Docket Number: FOUR-COUNTY,No. 89-CA-0583,89-CA-0583
• Parties: Dr. Vernon D. GIFFORD and Mrs. Jean Gifford v.ELECTRIC POWER ASSOCIATION.
• Court: Mississippi Supreme Court

Page 1166

615 So.2d 1166

Dr. Vernon D. GIFFORD and Mrs. Jean Gifford v. FOUR-COUNTY ELECTRIC POWER ASSOCIATION.

No. 89-CA-0583.

Supreme Court of Mississippi.

Dec. 17, 1992.

Rehearing Denied April 22, 1993.

William Liston, Liston/Lancaster, Winona, for appellant.

David L. Sanders, Mitchell McNutt Threadgill Smith & Sams, Columbus, for appellee.

Before DAN M. LEE, P.J., and PITTMAN and BANKS, JJ.

BANKS, Justice, for the Court:

Dr. Vernon Gifford sustained severe injuries when he came in contact with a live power line which had fallen from one of the utility poles installed by Four-County Electric Power Association (association). Dr. Gifford and his wife, Jean Gifford (Giffords or plaintiffs) brought a complaint in negligence against the association. The jury found for the association. From the judgment issued in conformity with the verdict, the Giffords prosecute this appeal. Finding that the court erred in failing to properly instruct the jury regarding defendant's negligence in failing to inspect the pole, we reverse and remand for a new trial.

I

On January 29, 1988, the Giffords filed a complaint in the Oktibbeha County Circuit Court alleging that Four-County Electric Power Association's negligence resulted in severe injury to Dr. Gifford. Specifically, the Giffords claimed that early on the morning of November 16, Dr. Gifford was "severely and painfully burned about his chest, abdomen, groin, and both legs when he came into contact with defendant's high-voltage power line, which had fallen because two utility poles supporting it had themselves broken and collapsed to the ground." They averred that the poles were decayed, rotten, termite-infested and were no longer suitable for their intended purpose. Furthermore, they complained that association's failure to inspect, replace, or install two new poles evidenced carelessness and a lack of due care. Damages were sought in the aggregate amount of $1,600,000.

The association answered and denied all material allegations listed in the complaint. Additionally, it averred that the accident was extraordinary, improbable, and could not have been reasonably foreseen; that Dr. Gifford was contributorily negligent in that he failed to exercise ordinary care or, alternatively, he assumed the risk of injury.

The jury, after hearing all of the evidence, returned a verdict in favor of the defendant. The Giffords filed the usual post-trial motions which were overruled by the court. Aggrieved, the Giffords filed a timely appeal on May 11, 1989.

II

The plaintiffs began their case by calling Dr. Gifford, who testified to the following. Before 6:00 a.m. on November 16, 1987, while it was still dark, Vernon Darryl Gifford was awakened by the honking of a car horn in front of his house. The man driving the car hollered to Dr. Gifford that there was a fire near his barn and that he "should probably check on." Dr. Gifford immediately ran back to his bedroom, dressed, asked his wife to call the Pheba Volunteer Fire Department, and awakened Dr. Gifford took a large fire extinguisher from the kitchen in his home, and ran out the front door to fight the fire. After getting to the barn and experiencing little success, he decided to return to his house to obtain some two-gallon garden sprayers. He began running toward the highway, where he had parked his truck, only to collide with Four-County Electric Power Association's downed power lines within a distance of approximately twenty or twenty-five feet from where he had started running. Lying on his back and looking into the sky, Dr. Gifford saw at least one of the power lines approximately 2 1/2 feet above his chest.

his nineteen-year-old son, Shandon Darryl Gifford.

Dr. Gifford, who was dragged from the line by his son and taken to the hospital by neighbors, suffered extensive burns for which he was treated for twenty-eight days in the Burn Center in Greenville.

The testimony revealed that the downed power transmission line was designed for single-phase 7200 volts phase to neutral. The wooden utility pole which had fallen earlier that night had been installed in this line in 1961 or 1962. Eight months before the accident in November, Dr. Gifford called the association and reported a defective pole that was located on his property.

Dr. Duane Lyon, a professor of wood science and technology at Mississippi State University and a scientist with the Mississippi Forest Products Utilization Lab, was tendered and accepted, without objection, as an expert in the field of wood engineering. He had occasion to examine the two poles located on the Gifford property which fell on November 16, 1988. ¹

The examination consisted first of a--a visual inspection. This was followed by a careful inspection of the pole to assess any naturally occurring characteristics or defects in the pole, and I was comparing to a standard, and I'll get into the standard in a little while, and then I took measurements with a tape measure to determine the size of the pole circumference at various locations, the length of the pole, and this was followed then by a careful examination of the fracture surface at the point where the--the pole had failed and at that point I also took some samples from the pole.

He found evidence of termite infestation in pole number one. However, in pole number two, he attributed deterioration primarily to brown rot decay fungi. The witness explained that this fungus has a devastating effect on the strength properties of wood. He testified that visually, there appears to be nothing wrong with the wood. "It looks normal, and yet at this point, uh, the bending strength of the wood might be as reduced by as much as seventy percent.... Now what I observed in pole number two was that the interior of the pole was in the advanced stages of decay." He stated that everything except the outer three-fourth inches had essentially no strength left at all because of the advanced stages of decay. He concluded that the pole in question had deteriorated fifty-percent and exceeded the level of deterioration allowed by the National Electrical Safety Code (Code).

Dr. Lyons testified that the code calls for replacing a pole when it has deteriorated by twenty-five percent; the pole in issue had deteriorated by fifty percent, that is, the strength of the pole had been reduced by half. He stated that there were techniques by which the company could have tested the wood for compliance with the applicable rules of the code and normal poles should be able to withstand winds of 15 to 20 miles per hour.

Dr. Lyons opined that poles should be inspected on eight-to-nine-year cycles. On cross examination he agreed that he copied and relied upon sections from the code of 1961 which had been abrogated and had not been in effect since 1977. Additionally, Dr. Lyons was not aware that the bureau that released the standards on which he relied, had in 1972, asked to be relieved of its duties in setting standards in the electrical industry. He admitted that he did not Dr. Lyon stated if the pole had been inspected some time before November 16, it would have been declared as a "pole in trouble and it would have been replaced." He inspected another pole, number one, and it contained extensive decay to the same degree as pole number two; in addition, pole number one had an infestation of subterranean termites. Pole number one also fell on the same date as number two. Dr. Lyon opined that both poles should have been replaced by the association.

examine the 1984 electrical safety code, the applicable code at the time of the accident, in conducting his examinations/studies in this case. He explained that he relied upon the older standards because they were applicable when the pole was installed.

To present its theory, the defense called James Forrester, manager of systems operations at Four-County to testify. Forrester explained that Four-County was an electric power association that was member-owned; each person receiving power from the association is an owner. He testified that servicemen visually inspect poles, as they go from place to place. Linemen are also trained to sound a pole before climbing it. In 1983, the association conducted an operation and maintenance survey. In accordance with the survey, it chose six one-mile segments in each district and did a complete survey from pole to pole. In conducting the test, the association picked from lines that were between 10 to 20 years old to be sure there was a representative sample in determining what shape lines were in. The association contracted with a company to inspect and chemically treat poles, if necessary. Thirteen thousand poles were inspected. In the area where the Giffords lived, there were 220 poles on the line. Prior to the accident, 199 of those poles had been inspected. He stated that because one pole is decayed does not mean that others on the same line or in the same area are decayed.

On cross-examination, Forrester testified that he had no records showing that the pole in issue had ever been inspected. He admitted under the guidelines followed the pole should have been inspected within its twenty-seven-year lifetime.

The defense expert, James Abernathy (Abernathy) stated that the code applicable during the time of the accident was the 1984 code. The crux of his testimony was that even if the pole in issue lost fifty percent of its strength, as testified to by Dr. Lyons, it more than met the requirements of the Code. "It is triple the requirements of the National Electrical Safety Code." He concluded that pole number two exceeded by two-and-one-half-to-three times the strength requirements of the code, on the date of the accident. He testified that when the pole was installed, it exceeded standards by a sufficient margin that it could lose eighty-three percent of its strength and still meet and comply with the code requirements. He stated that the best probability as to what happened to the pole...