Howard v. General Cable Corp.
| Citation | 674 F.2d 351 |
| Decision Date | 26 April 1982 |
| Docket Number | No. 80-2205,80-2205 |
| Parties | Shirley Ann HOWARD, Et Al., (Widow of Kenneth R. Howard, Individually and as representative of the estate of Kenneth R. Howard, Deceased, and as next friend of Vicki Howard and Timothy Howard, Minor children of the deceased), Plaintiffs-Appellees, v. GENERAL CABLE CORPORATION, Defendant-Appellant. |
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
Strong, Pipkin, Nelson, Parker & Bissell, Kenneth L. Parker, James E. Montgomery, Jr., Sibley & Montgomery, Beaumont, Tex., for defendant-appellant.
Gilbert T. Adams, Jr., Richard Clarkson, Browne & Browne, Ernest J. Browne, Jr., Beaumont, Tex., for plaintiffs-appellees.
Appeal from the United States District Court for the Eastern District of Texas.
Before WISDOM, SAM D. JOHNSON and WILLIAMS, Circuit Judges.
Kenneth R. Howard was employed by Southwestern Bell Telephone Company as a cable repairman in 1976 until he was electrocuted on March 7, 1977. Howard and a co-worker, Jimmy Jenkins, were sent by Southwestern Bell to assist a large tank truck in its passage along FM 1006 near Orange, Texas, by raising telephone cables that would otherwise block the vehicle's movement. This was to be accomplished through the use of an aerial lift truck manufactured by appellant General Cable Corporation. The telephone cable was mounted on a pole which also carried electrical wires.
When the men arrived at the proper place, Howard got into the bucket at the end of the truck's extendable arm. Jenkins remained on the ground to operate the lift controls. As Howard was ascending, Jenkins called out, and Howard responded, "I see it, Jimmy." When Howard reached the cable, he placed it across the bucket and then raised the bucket, thereby lifting the cable and clearing the way for the large truck to pass underneath.
As the tank truck was passing, its top hit one of the electrical wires pushing the wires closer to Howard. He was electrocuted when the current arced from one of the wires onto him or when the current passed through the uninsulated bucket onto his body. Howard never actually touched the wires.
Howard's widow, estate, and children brought suit under the Texas Wrongful Death Act, Tex.Rev.Civ.Stat.Ann. art. 4671, against appellant, the manufacturer of the truck, and Magnolia Transportation Company and Dickey Electric Company, the two companies transporting the tank claiming $4,200,000.00 in compensatory damages. The complaint against Dickey included a request for $5,000,000.00 in exemplary damages in addition to the compensatory damages. Magnolia and Dickey settled with the Howards for $595,000.00. The claim against appellant was severed and proceeded to trial.
The Howards' theory of recovery against appellant was based on strict liability under the Restatement (Second) of Torts § 402 A. Their contention was that the aerial lift truck was unreasonably dangerous because its bucket was constructed of non-insulated, conductive metal and bore no warnings of the possible dangers to users who came near electrical wires while in the bucket. Had Howard been warned of the conductive nature of the bucket, they claimed, he would have kept a safe distance from the wires.
The jury found in the Howards' favor and awarded them $610,000.00 in compensatory damages. Appellant sought a credit for the amount paid in settlement by Magnolia and Dickey but the court refused to allow the credit and entered judgment in the amount of $610,000.00.
In this appeal, appellant challenges the court's refusal to grant its motions for directed verdict or judgment n. o. v. on the issues of its duty to warn Howard of the dangers involved in using the uninsulated lift truck, the affirmative defense of voluntary assumption of the risk, and proximate cause. Appellant also alleges error in the jury charge and in the court's refusal to allow a credit for the $595,000.00 settlement paid by Magnolia and Dickey. We address each of these issues individually.
Appellant's first point on appeal is that the court erred in refusing to grant its motions for directed verdict or judgment n. o. v. on the issue of the duty to warn Howard of potential dangers involved in using the uninsulated lift truck. For the purposes of this appeal, appellant admits that the truck would be unreasonably dangerous to one not apprised of the fact that it was made of conductive, uninsulated material. Appellant argues that the truck was not unreasonably dangerous to Howard, however, because he knew of the dangers. Appellant contends that Howard was aware of the dangerous condition of the truck because he was a skilled professional whose experience and training had taught him about the truck's condition and because his co-worker, Jimmy Jenkins, actually warned him of the dangers immediately before he was electrocuted. Appellees agree that if Howard knew of the dangers associated with using the truck, appellant would not be liable for its failure to warn. They contend that the only knowledge Howard had was of the general dangers associated with electrical wires but that he was unaware of the dangerous arcing potential of electricity as well as the fact that the truck was uninsulated and could not protect him from electrocution.
The resolution of this issue turns on how much knowledge Howard had of the dangers associated with using the truck. This was a factual matter on which judgment n. o. v. should have been denied if there was "evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions...." Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969). A review of the evidence adduced at trial is necessary to determine whether the motion for judgment n. o. v. was properly denied.
The evidence indicated that Howard had been working with the aerial lift truck for at least six months. He had been trained by Jenkins and Hollis Beard, a foreman, for two or three hours before he ever operated the truck. Although there was a classroom course to instruct repairmen on the use of the truck, Howard had not taken the course. Those who took the course and demonstrated the requisite level of skill were given certification cards. Howard did not have one; however, his foreman testified that he considered Howard as skilled as those who held certificates. Although this does not prove that Howard was a novice, from this evidence a jury could reasonably conclude that Howard was less than an expert and did not have the knowledge that certified lift truck operators had. Thus it was reasonable for the jury to believe that Howard's professional experience did not provide him with knowledge of the dangerous condition of the truck.
Even if we assume that Howard was a skilled operator, the jury still would have been justified in finding that he was unaware of the electrocution hazard. Both Jenkins and Beard, who were certified operators with many years experience, testified that they did not know whether the bucket was insulated. They were aware of the general dangers associated with live wires, but neither testified that certified operators knew of the arcing potential of electricity or of the dangers involved in using an uninsulated bucket to move cables. In fact, Jenkins testified that some operators thought the rubber tires would save someone in the bucket, presumably by acting as insulation from the ground to break the circuit. Thus, it would not have been unreasonable for a jury to conclude that even the most skilled lift truck operators were unaware of all aspects of the dangers involved in using the truck in proximity to live electrical wires.
Appellant also argues that Jenkins warned Howard of the dangers immediately before the electrocution and thus Howard was made aware of all dangers. As Howard began his ascent in the bucket, Jenkins called out, and Howard responded, "I see it, Jimmy." Appellees contend that this warning merely reminded Howard that there were wires overhead; it did not apprise him of the danger of arcing electricity or the fact that he was in an uninsulated truck. We agree with appellees. The general warning about "power" could not substitute for a warning of specific dangers.
In Pearson v. Hevi-Duty Electric, 618 S.W.2d 784 (Tex.Civ.App.-Houston 1981, writ ref'd n. r. e.), the court set aside a jury verdict finding for the defendants in a similar situation. Pearson was a skilled electrician quite familiar with the dangers of high voltage wires. He was electrocuted while working on a 7200 volt transformer when his hand came into contact with a "hot" fused switch. The switch bore the warning "High Voltage Do Not Touch" but said nothing of whether the switch was "hot" in the open or the close position. The court held that the warning given was merely a general one reminding Pearson of what every electrician knew. The issue, the court said,
was not whether there was an adequate warning of the general dangerous consequences of the presence of high voltage electrical power in the NX fused switch and its surroundings within the transformer, but whether there was adequate warning to put Connie Pearson on notice that the NX fuse or switch may be live in the open position and hence dangerous in such position. Stated another way: Was the general warning adequate where the undisputed evidence revealed that a specific warning would have pinpointed the danger of the fuse being live in the open position?
Id. at 788. See also Mansfield v. Union-76 Division of Union Oil Co. of California, 532 F.2d 446 (5th Cir. 1976).
In this case, Howard was well aware of the general dangers associated with electricity. Jenkins' reminder that there was "power" was, at best, a general warning and could not take the place of a warning of the specific dangers associated with using the uninsulated truck in the vicinity of live wires. The...
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