Juvenal By and Through Juvenal v. Okeene Public Schools

• Citation: 878 P.2d 1026,1994 OK 83
• Decision Date: 12 July 1994
• Docket Number: B,I-9,No. 75577,75577
• Parties: 93 Ed. Law Rep. 956, 1994 OK 83 Brandy Lynn JUVENAL, By and Through her mother and next friend, Sharla Diane JUVENAL, and Sharla Diane Juvenal, individually, Appellants, v. OKEENE PUBLIC SCHOOLS, Independent School districtlaine County, Oklahoma, City of Okeene, Blaine County, Oklahoma, and Okeene Public Works Authority, Appellees.
• Court: Supreme Court of Oklahoma

Page 1026

878 P.2d 1026

93 Ed. Law Rep. 956, 1994 OK 83

Brandy Lynn JUVENAL, By and Through her mother and next

friend, Sharla Diane JUVENAL, and Sharla Diane

Juvenal, individually, Appellants, v. OKEENE PUBLIC SCHOOLS, Independent School district I-9, Blaine County, Oklahoma, City of Okeene, Blaine

County, Oklahoma, and Okeene Public

Works Authority, Appellees.

No. 75577.

Supreme Court of Oklahoma.

July 12, 1994.

Rehearing is granted and opinion of this Court issued March 16, 1993 is WITHDRAWN.

On Certiorari to the Court of Appeals, Division No. 1.

The District Court of Blaine County, Mike Cunningham, Judge, entered judgment on a jury verdict for the Appellees, Okeene Public Schools, and Okeene Public Works Authority, who were two of the three defendants below. The trial court directed a verdict in favor of the third defendant, City of Okeene. Appellants, who were plaintiffs below, appealed. The Court of Appeals, Division 1, affirmed the trial court's order directing a verdict in favor of the City of Okeene, but granted plaintiffs' motion for new trial against defendants Okeene Public Schools, and Okeene Public Works authority.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT'S JUDGMENT AFFIRMED.

Duke Halley and David B. Christian, Halley & Christian, Woodward, for appellants.

Russell L. Hendrickson, Pierce, Couch, Hendrickson, Johnston & Baysinger, Oklahoma City, for appellee, Okeene Public Schools.

Andrew W. Lester and Laura Holmgren-Ganz, Lester, Bryant & Ganz, Enid, for appellees, City of Okeene and Okeene Public Works Authority.

WATT, Justice.

Appellants, the Juvenals, appeal from a jury verdict for the Okeene Public Schools, and the Okeene Public Works Authority, and from a directed verdict for the City of Okeene. The Authority is a public trust that owns and operates the electrical system in Okeene.

FACTS AND PROCEDURAL HISTORY

On May 26, 1988, Brandy Juvenal, age 11, fell while trying to climb to the roof of the Okeene grade school. Brandy was trying to reach a flat roof over the south entrance of the school building to retrieve the shoe of a child with whom she was playing. When Brandy fell, she landed on her feet and broke her ankles. Through her mother, Brandy sued the City, and the Schools for her injuries on May 12, 1989. Brandy's mother sued personally for Brandy's medical expenses and her own mileage to and from medical facilities. Later, on January 4, 1990, the Juvenals joined the Authority as a party defendant.

Brandy sought to reach the roof by climbing a metal pipe that was part of the school building's electrical service. Wires from a nearby electrical pole were attached to the top of the service pipe. Those wires were connected to school building wiring. The electrical service had been installed by the Authority, which was responsible for it up to its connection point with the school building wiring. The pipe was attached to the south side of the building about two feet west of the west edge of the flat roof. The roof was ten feet above ground level. Brandy and her mother claimed that Brandy fell because she touched an exposed electric wire.

The parties agree that if any wire for the electrical service was exposed, it violated the National Electrical Code and the National Electrical Safety Code. The evidence conflicted on this issue, but the record contains testimony from which the jury could have concluded that the wiring complied with the Codes. Wayne Carter, an electrician in Okeene, testified that sometime in 1987 the Okeene School Superintendent asked him to inspect the electrical wiring at Okeene Grade Following his inspection, Carter told the Superintendent that the wiring satisfied the Codes, but suggested he be authorized to raise the service an additional five feet to make it "child proof." The Superintendent then authorized Carter to raise the service. Carter, however, expected the Superintendent to tell him when to do the work because to do the work, Carter would have to turn off the School's electric service, and leave it off for at least a day. Because of the misunderstanding between Carter and the Superintendent, the service was not raised until after Brandy fell.

School. The Superintendent told Carter he had heard a rumor a child had been hurt at the grade school whose injury might have been caused by the electrical service. Carter testified that his inspection showed the insulation on the connection between the service and the school building wiring was "weathered," but "the wires was not exposed, no."

Ronnie Cantrell was present when Brandy started to climb toward the roof of the school. Ronnie had fallen from the same roof the previous year. Ronnie's fall was apparently the one about which the Superintendent had heard. At trial, Brandy testified,

Well, Ronnie said ... I bet you fall, and I said I bet I don't. So I just started crawling up there.

The Juvenals claim that the trial court failed to recognize the standard of care the defendants owed Brandy and that its instructions on this issue deprived them of a fair trial. They also complain of other instructions for various reasons. In addition, the Juvenals contend that they were entitled to a directed verdict against all defendants and that the trial court erred in directing a verdict in favor of the City. The Juvenals also say the trial court erred in disallowing evidence that the defendants raised the height of the service after Brandy's accident.

I.

Before considering the Juvenals' contentions, we must decide an issue the Authority raises. The Authority claims that the Juvenals' claim against it is barred because the Juvenals did not give timely notice to the Authority under § 156.B of the Governmental Tort Claims Act, 51 O.S.1986 Supp. §§ 151 et seq. That the Juvenals' action is governed by the Governmental Tort Claims Act is undisputed. The Juvenals gave timely notice of their claim to the City under § 156.B of the Act. ¹ The Juvenals, however, gave no notice of their claim to the Authority and did not sue it until more than one year after Brandy's accident.

We have long held that substantial compliance with the notice provisions of the Act satisfies its provisions. Lucas v. Ind. Public School Dist. No. 35, 674 P.2d 1131 (Okla.1983). In Conway v. Ohio Casualty Ins. Co., 669 P.2d 766, 767 (Okla.1983) we said,

The purposes of the notice requirement are to further legitimate interests by promoting prompt investigation; by providing the opportunity to repair any dangerous condition and for speedy and amicable settlement of meritorious claims; and to allow the opportunity to prepare to meet possible fiscal liabilities.

The Authority does not claim that the Juvenals' failure to give it notice separate from the notice to the City prejudiced the Authority's rights in any way. We note that the City and the Authority were represented by the same counsel. Under the City's municipal ordinances, the City's Board of Trustees oversees the operations of the Authority. An employee of the Authority testified that the public views Authority employees as City employees. These circumstances convince us, and we hold, that the Juvenals' notice to the City sufficiently apprised the Authority of the Juvenals' claim to constitute substantial compliance with § 156.B of the Act.

II.

We turn now to the Juvenals' contention that they were denied a fair trial because the trial court applied and instructed upon the wrong standard of care. The Juvenals claim that the cumulative effect of the erroneous instructions was the denial of a fair trial.

The jury returned a verdict against the Juvenals. Consequently, we will presume that the verdict is correct. We will not disturb the verdict if there is any competent evidence to support it. McCoy v. Oklahoma Farm Bureau, 841 P.2d 568 (Okla.1992).

The best guide to determine if a party was prejudiced by erroneous instructions is to look at whether the verdict is supported by competent evidence. Teague v. United Truck Service, 499 P.2d 380, 384 (Okla.1972). If competent evidence supports the verdict, we will not disturb it because of erroneous instructions "unless it appears reasonably certain that the jury was misled." [Emphasis as in the original.] Teague, 499 P.2d at 384; Messler v. Simmons Gun Specialties, Inc., 687 P.2d 121, 129 (Okla.1984).

The Juvenals complain of the trial court's Instruction 20, which told the jury that it should find for the Schools and the Authority if they "acted in conformity with then current recognized standards." ²

The Juvenals claim that the trial court's Instruction 20 violated this Court's holdings in Rotramel v. Public Service Co., 546 P.2d 1015 (Okla.1976), and Woodis v. Oklahoma Gas & Electric Co., 704 P.2d 483 (Okla.1985). We disagree.

In neither Rotramel nor Woodis was the defendant a governmental entity. Here, both School and the Authority are governmental subdivisions. The Governmental Tort Claims Act, 51 O.S.1991 §§ 151 et seq., therefore, governs their liability. The Act creates different standards for municipally owned electric utilities than the common law standards by which the liability of privately owned electric utilities is measured.

Proof by a privately owned electric utility that it has complied with the National Electrical Code and the National Electrical Safety Code is not a complete defense to tort liability. Woodis, 704 P.2d at 486. On the other hand, under § 152.1 of the Act, the Schools and the Authority are immune from tort liability except "to the extent and in the manner provided in this act." ³ Section 155.28 of the Act expressly exempts governmental entities from liability for "acts or omissions done in conformance with then current recognized standards." ⁴ Thus, if a government owned public utility acts "in conformance with then current recognized standards," § 155.28, Id., this fact forms a complete defense to liability arising from such acts.

Here, the evidence established that...