Lambert v. Franklin Real Estate Co.

• Decision Date: 18 February 2000
• Docket Number: No. 1998-CA-000440-MR.,No. 1998-CA-000276-MR.,No. 1998-CA-002733-MR.,No. 1998-CA-000281-MR.,1998-CA-000276-MR.,1998-CA-000281-MR.,1998-CA-000440-MR.,1998-CA-002733-MR.
• Citation: 37 S.W.3d 770
• Parties: Helen LAMBERT, Administratrix of the Estate of Donald Lambert, Deceased, Appellant, v. FRANKLIN REAL ESTATE COMPANY; American Electric Power Company, Inc.; American Electric Power Service Corporation; and Vanceburg Utilities Commission, Appellees. Carl Marshall and Ann Marshall, Individually, and as Next Friend of Jonna Lee Marshall, Carl Edward Marshall, III, and Todd Andrew Marshall, Appellants, v. Franklin Real Estate Company; American Electric Power Company, Inc.; American Electric Power Service Corporation; and Vanceburg Utilities Commission, Appellees Franklin Real Estate Company; American Electric Power Service Corporation; and American Electric Power Company, Inc., Cross-Appellants, v. Carl Marshall and Ann Marshall, in Their Capacity as Next Friends of Jonna Lee Marshall, a Minor; Carl Edward Marshall, III, a Minor; and Todd Andrew Marshall, a Minor, Cross-Appellees. Vanceburg Utilities Commission, Cross-Appellant, v. Carl Marshall and Ann Marshall, in Their Capacity as Next Friends of Jonna Lee Marshall, a Minor; Carl Edward Marshall, III, a Minor; and Todd Andrew Marshall, a Minor, Cross-Appellees.
• Court: Kentucky Court of Appeals

37 S.W.3d 770

Helen LAMBERT, Administratrix of the Estate of Donald Lambert, Deceased, Appellant, v. FRANKLIN REAL ESTATE COMPANY; American Electric Power Company, Inc.; American Electric Power Service Corporation; and Vanceburg Utilities Commission, Appellees.

Carl Marshall and Ann Marshall, Individually, and as Next Friend of Jonna Lee Marshall, Carl Edward Marshall, III, and Todd Andrew Marshall, Appellants, v. Franklin Real Estate Company; American Electric Power Company, Inc.; American Electric Power Service Corporation; and Vanceburg Utilities Commission, Appellees Franklin Real Estate Company; American Electric Power Service Corporation; and American Electric Power Company, Inc., Cross-Appellants, v. Carl Marshall and Ann Marshall, in Their Capacity as Next Friends of Jonna Lee Marshall, a Minor; Carl Edward Marshall, III, a Minor; and Todd Andrew Marshall, a Minor, Cross-Appellees.

Vanceburg Utilities Commission, Cross-Appellant, v. Carl Marshall and Ann Marshall, in Their Capacity as Next Friends of Jonna Lee Marshall, a Minor; Carl Edward Marshall, III, a Minor; and Todd Andrew Marshall, a Minor, Cross-Appellees.

No. 1998-CA-000276-MR.

No. 1998-CA-000281-MR.

No. 1998-CA-000440-MR.

No. 1998-CA-002733-MR.

Court of Appeals of Kentucky.

February 18, 2000.

Rehearing Denied April 21, 2000.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Luke Bentley, III, Greenup, for Appellants in 1998-CA-000276-MR.

William P. Emrick, Ashland, for Appellants in 1998-CA-000281-MR.

James D. Ishmael, Jr., Lexington, for Vanceburg Utilities Commission.

Wendell S. Roberts, Donald R. Yates, II, Ashland, for Franklin Real Estate Co.; American Electric Power Service Corp.; and American Electric Power Co., Inc.

Before: BUCKINGHAM, HUDDLESTON, and SCHRODER, Judges.

OPINION

SCHRODER, Judge:

This is a case in which American Electric Power Company, Inc., American Electric Power Service Corporation, Franklin Real Estate Company¹ and Vanceburg Utilities Commission are accused of being negligent in causing an accident that killed two men and severely injured another. Prior to the close of the appellants' case, the trial court granted a directed verdict in favor of the appellees. We affirm the directed verdict as to American Electric Power Company, Inc., American Electric Power Service Corporation, and Franklin Real Estate Company. We reverse and remand the directed verdict as to Vanceburg Utilities Commission.

On March 19, 1994, appellant, Donald Lambert, appellant, Carl Marshall,² and John Durman were attempting to repair a water well. Durman lived on the property, located in St. Paul, Lewis County, Kentucky, and leased the property from Franklin Real Estate Company. Franklin Real Estate Company is a wholly owned subsidiary company of American Electric Power Company. Durman paid his rent to Kentucky Power Company, likewise a wholly owned subsidiary of American Electric Power Company. American Electric Power Service Corporation is also an affiliate of American Electric Power Company, though it apparently had little involvement with the St. Paul property.

In the course of attempting to repair the well, the workers removed the pipe from the well. The pipe was in 10-foot sections and was made of steel. Initially, as a 10-foot section was pulled to the surface, the workers uncoupled the sections. Four 10-foot sections were removed in this manner. However, after four sections had been removed, the workers encountered rusty pipe which they were unable to readily uncouple. As a result of this difficulty, the last three sections of pipe, a total of 30 feet in length, were removed as a single unit. Attached to the end of this 30-foot section was the well's foot valve.

The workers concluded that the well's foot valve was defective, and Durman and Marshall drove to Portsmouth, Ohio, to purchase a new one. Following their return, the workers attached the new valve to the 30-foot section of pipe. The workers then raised the pipe to put it back into the well. As the men raised the pipe in the air, the pipe came into contact, or into extemely close proximity, with a 7,200-volt electric power line. Electric current traveled from the line down the pipe killing Durman and Lambert and severely injuring Marshall.

Carl Marshall, the estate of Donald Lambert, and the estate of John Durman filed suits seeking damages for injuries incurred in the accident, and the actions were joined. The children of Marshall, Durman, and Lambert were later added as parties on claims relating to their loss of consortium with their fathers. The Durman estate and the Durman children settled their claims prior to trial.

The trial commenced on December 1, 1997. Following opening statements, the appellants attempted to read aloud to the jury portions of certain depositions. Upon objection by the appellees, the trial court refused to allow the depositions to be read aloud on the basis that the deponents were available as witnesses. Instead of calling the deponent witnesses, following the trial court's ruling, Carl Marshall was called as the first trial witness. Following Marshall's testimony, the appellants' only expert witness, Dr. Frederick Charles Trutt, Professor of Electrical Engineering at the University of Kentucky, was called. Following the conclusion of the expert witness's testimony, the appellees moved for a directed verdict. The trial court granted the motion for a directed verdict. These appeals and cross-appeals followed.

The appellants contend that the trial court erred by entering a directed verdict before they had rested their case. In general, a directed verdict should not be granted until the conclusion of the plaintiff's case. Rule 50.01 "recognizes the right of a party to move for a directed verdict at the close of the evidence offered by an opposing party." Kurt A. Philipps, Jr., Kentucky Practice, CR 50.01 (5th ed.1995) (emphasis added). Nevertheless, Kentucky cases recognize the power of a trial court to decide a case upon the opening statements of counsel where they clearly and definitely disclose no cause of action or no defense, or admit facts the existence of which precludes a recovery by their clients. However, the cases admonish that the practice is a dangerous one and the power should be exercised with caution. See Raco Corp. v. Edwards, Ky., 272 S.W.2d 345 (1954); Hill v. Kesselring, 310 Ky. 483, 220 S.W.2d 858 (1949); Co-De Coal Co. v. Combs, Ky., 325 S.W.2d 78 (1959); and Brinton v. Motte, Ky., 244 S.W.2d 480 (1951). It may be inferred from these cases that if, at a later point in the trial, the evidence clearly and definitely discloses no cause of action, then the trial court may likewise direct a verdict.

In any event, even if we accept the appellants' argument that the trial court prematurely granted the directed verdict, a judgment may not be set aside based upon a ruling of the trial court if the ruling was harmless error. CR 61.01. The trial court's granting of a directed verdict prior to the close of the appellants' case was harmless error as to the landlord appellees. On the other hand, at the time the directed verdict was granted to Vanceburg Utilities, the evidence did not clearly and definitively establish that the appellants could not prove negligence against it. Hence, the standard for granting a directed verdict was not met, was not harmless error, and the granting of a directed verdict in favor of the power company was not proper.

The status of the landlord appellees and Vanceburg Utilities, and the applicable law, are significantly different, so the directed verdicts of the two classes of appellees must be considered individually. First we consider the directed verdict granted in favor of the landlord appellees.

A directed verdict is appropriate when, "drawing all inferences in favor of the nonmoving party, a reasonable jury could only conclude that the moving party was entitled to a verdict." Buchholtz v. Dugan, Ky.App., 977 S.W.2d 24, 26 (1998). The trial court is required to "consider the evidence in its strongest light in favor of the party against whom the motion was made and must give him the advantage of every fair and reasonable intendment that the evidence can justify." Lovins v. Napier, Ky., 814 S.W.2d 921, 922 (1991). In our review, we must "consider[ ] the evidence in the same light." Id.

Franklin Real Estate owned the property where the accident occurred. Franklin Real Estate is a wholly owned subsidiary of American Electric Power. American Electric Power Service Corporation is likewise a wholly owned subsidiary of American Electric Power. While it so happens that the major overall corporate mission of these appellees is to engage in the production and transmission of electricity, nevertheless they are parties to this case only in their capacity as the landlords of the St. Paul property where the accident occurred.³ The electric lines involved in the accident were not owned, maintained, or otherwise used by the landlord appellees in their electric utility business. "In the absence of a showing of ownership or a duty to inspect and maintain an electric system, an electric light company can not be held liable for injuries occasioned by negligent maintenance of the system." Louisville Gas & Elec. Co. v. Johnson, Ky., 282 S.W.2d 138, 139 (1955). Hence, the landlord appellees' negligence depends upon the duties owed by a landlord to his tenants and his tenants' guests.

"[A] landlord has a duty to disclose a known defective condition which is unknown to the tenant and not discoverable through reasonable inspection." Milby v. Mears, Ky.App., 580 S.W.2d 724, 728 (1979). However, "Lilt has been a longstanding rule in Kentucky that a tenant takes the premises as he finds them. The landlord need not exercise even ordinary care to furnish reasonably safe premises, and he is not generally liable for injuries caused by defects therein." Milby at 728. "[T]he landlord is under no implied obligation to...