Horton v. Union Light, Heat & Power Co., 84-SC-80-DG

• Citation: 690 S.W.2d 382
• Decision Date: 11 April 1985
• Docket Number: No. 84-SC-80-DG,84-SC-80-DG
• Court: United States State Supreme Court (Kentucky)
• Parties: Ernest C. HORTON, Mary Horton, James Daniel Horton and Anthony Wayne Horton, Movants, v. The UNION LIGHT, HEAT & POWER COMPANY, Respondent.

Page 382

690 S.W.2d 382

Ernest C. HORTON, Mary Horton, James Daniel Horton and Anthony Wayne Horton, Movants, v. The UNION LIGHT, HEAT & POWER COMPANY, Respondent.

No. 84-SC-80-DG

Supreme Court of Kentucky.

April 11, 1985.

Rehearing Denied June 14, 1985.

John S. Palmore, Henderson, Robert W. Carran, Philip Taliaferro, Covington, for movants.

Arnold Taylor, Gary J. Sergent, O'Hara, Ruberg & Taylor, Edgewood, for respondent.

LEIBSON, Justice.

In the early morning hours of December 10, 1977, the home of the movants, Ernest and Mary Horton, in Florence, Kentucky, was destroyed by an explosion of natural gas which had leaked into their house from a break that had occurred in the line outside their house at a point near the intersection of their driveway and the street. The respondent, The Union Light, Heat & Power Co., was the local gas company charged with responsibility for maintenance and repair of the line.

Mr. and Mrs. Horton and two of their children, James and Anthony, were in the house at the time of the explosion. The Hortons sued the gas company for both personal injuries and property damage, alleging negligence and gross negligence on the part of the respondent and its employees, seeking both compensatory and punitive damages. The jury found for the movants on all counts, rendering separate awards for compensatory damages and punitive damages to each of them, aggregating $109,254 in compensatory damages and $520,000 in punitive damages.

The gas company paid the various awards for compensatory damages and appealed the awards for punitive damages. The Court of Appeals held the evidence was insufficient to justify an award of punitive damages, and reversed. ¹ We accepted discretionary review to consider whether the Court of Appeals erred in deciding the evidence was insufficient to justify submitting to the jury the issue of gross negligence and punitive damages, and, if so, to consider two further questions, one raised by the gas company in the court below and one inherent in the proceedings; viz., (1) whether the gas company should be responsible for punitive damages resulting from gross negligence of its employees while acting in the scope of their employment, and (2) whether the concept of punitive damages is an outmoded aspect of the common law which should now be discarded. ²

We reverse the Court of Appeals and affirm the verdict and judgment in the trial court awarding punitive damages.

In Fields v. Western Ky. Gas Co., Ky., 478 S.W.2d 20 (1972), the plaintiff was injured in a natural gas explosion and the trial judge directed a verdict on grounds the evidence as he viewed it was insufficient to submit the issue of liability to the jury. We stated:

"We are unable to agree with the trial court concerning his reason for decision. Upon consideration of a motion for directed verdict, the plaintiff is entitled to the most favorable inferences and construction attributable to the evidence. If such evidence is so regarded and substantially tends to support the cause of action, the verdict should not be directed against him." 478 S.W.2d at 22.

The judicial decision regarding when to save the interpretative function for the court and when to delegate the interpretative function to the jury is crucial to the development of negligence law. The more judges take cases away from juries, the more the concepts of reasonable conduct, negligence and gross negligence become synonymous with the view of the judge or judges on that court. Likewise, the more the interpretative power is delegated to juries, the more these concepts become the aggregate of discrete findings by juries. See L. Green, Judge and Jury (1930). By delegating interpretation to a jury the judiciary allows current considerations of equity and common sense to modify what might otherwise become anachronistic principles. L. Green, supra, at 385-91. The role of the jury in interpreting the evidence and finding the ultimate facts is an American tradition so fundamental as to merit constitutional recognition. U.S. Const.Amend. VII; Ky. Const. Sec. 7. The conscience of the community speaks through the verdict of the jury, not the judge's view of the evidence. It may well be that deciding when to take a case away from the jury is a matter of degree, a line drawn in sand, but this is all the more reason why the judiciary should be careful not to overstep the line.

The role of the appellate court when deciding negligence issues of this sort is limited to viewing the evidence from a standpoint most favorable to the prevailing party. Lever Bros. Co. v. Stapleton, 313 Ky. 837, 233 S.W.2d 1002 (1950). In negligence cases such as this one the verdict of the jury resolves any conflicts in the testimony and also any conflicts in the reasonable inferences to be drawn from the testimony in favor of the prevailing party, in this case the Hortons. Current v. Columbia Gas of Ky., Inc., Ky., 383 S.W.2d 139 (1964); Mahan v. Able, Ky., 251 S.W.2d 994 (1952); Murphy v. Homans, 286 Ky. 191, 150 S.W.2d 14 (1940). In short, an appellate court must not substitute its findings of fact for those of the jury if there is evidence to support them.

The language in the Court of Appeals' opinion suggests that the Court of Appeals may have made findings of its own, rather than limiting to its appropriate role in reviewing the sufficiency of the evidence. The Court's opinion states:

"Here, although the evidence clearly indicated that [the gas company] employees used very poor judgment in dealing with the situation at [the Horton] home, we cannot say that their conduct amounted to a level of wanton and reckless indifference." (Emphasis added)

What then is the evidence when we respect the rule that the prevailing party "is entitled to the most favorable inferences and construction attributable to the evidence"? Fields v. Western Ky. Gas Co., supra.

Mary Horton was awakened by a strong smell of gas in her bedroom. She aroused her husband who checked their gas appliances finding no difficulty, and she then notified the gas company by telephone of the odor of gas in the house from a suspected leak.

A customer service representative from the gas company with responsibility to detect and correct problems from gas leaks inside the house, responded to the call. After parking his truck he noticed a strong odor of gas and heard a hissing sound emanating from the ground in the area where the Horton driveway intersected the street. He was not equipped to do outside work.

This customer service representative proceeded into the house, made what was obviously a superficial check of the inside situation during which he concluded that there was some gas odor in the main floor area but not in the basement where the furnace and hot water heater were located, and erroneously concluded that gas escaping from a break out by the street was possibly entering the house downward through the chimney (although natural gas is lighter than air), ignoring the likelihood that gas from the place where the break occurred would follow the passageway which accommodated the line into the house, providing a continuing source and a growing concentration of gas in the house.

The gas company's customer service representative suggested that Mrs. Horton close the damper to exclude the possibility (highly unlikely) that gas from outside the house would enter down the chimney, and said it would be alright to leave running the kitchen exhaust fan. This fan vented into the attic area which he had not inspected.

This employee was equipped with and had been trained in the use of a combustible gas indicator, sometimes called an "explosive meter." This was a device to measure the amount of gas and to detect its point of entry into an enclosed area. He left it in his car, depending instead on his nose, which proved inadequate to the test. Having erroneously concluded that there was no gas leaking inside the house, he told the Hortons that the house was safe and telephoned the gas company to send a construction and maintenance crew to repair the break in the line down by the driveway. He never again entered the house to check for the presence or concentration of gas, nor did any of the other gas company workmen who later arrived on the scene.

The field supervisor of the construction and maintenance crew who came in response to his call to repair the break testified that had the customer service representative told him of the smell of gas in the house, that he, the supervisor, would have checked all of the rooms in the house, including the attic, with an explosive meter, and would have continued to monitor the house for further accumulation of gas.

The customer service representative testified, and company records confirmed, that contrary to the testimony of the field supervisor, the customer service representative did tell him of at least a "slight odor" of gas inside the house, which should have triggered these further precautionary measures which the field supervisor disregarded.

This supervisor had authority to cut off the gas supply in the event of an emergency, and could have done so before the explosion. He could have directed the occupants to evacuate. Instead he and his crew set about locating and repairing the leak in the area near the driveway, neither cutting off the gas supply nor making any effort to evacuate the occupants of the house.

At 4:35 AM, two hours after Mrs. Horton's initial complaint, more than one hour after the customer service representative had arrived on the scene, and some twenty minutes after the arrival of the field service supervisor and his crew, the house exploded. The most likely explanation was gas from the break near the street entering the house through the tunneling provided to accommodate the gas lines, concentrating in the attic since it was lighter than air and assisted to that location by the exhaust fan, and ignited by warm coals left over from a fire in the fireplace...