Lee v. Southern Bell Tel. & Tel. Co.

• Decision Date: 07 May 1990
• Docket Number: 88-1993 and 88-2255,Nos. 88-1747,s. 88-1747
• Citation: 561 So.2d 373
• Parties: 15 Fla. L. Weekly D1256, 15 Fla. L. Weekly D1394 Cecil E. LEE and Irma M. Lee, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.
• Court: Florida District Court of Appeals

Page 373

561 So.2d 373

15 Fla. L. Weekly D1256, 15 Fla. L. Weekly D1394

Cecil E. LEE and Irma M. Lee, Appellants, v. SOUTHERN BELL TELEPHONE AND TELEGRAPH COMPANY, Appellee.

Nos. 88-1747, 88-1993 and 88-2255.

District Court of Appeal of Florida First District.

May 7, 1990.

Rehearing Denied June 4, 1990.

T. Michael McLeod of Kerrigan, Estess & Rankin, Pensacola, and Joel S. Perwin of Podhurst, Orseck, Josefsberg, Eaton, Meadow, Olin & Perwin, Miami, for appellants.

J. Nixon Daniel, III, of Beggs & Lane, Pensacola, for appellee.

BARFIELD, Judge.

We agree with appellants that the trial court abused its discretion in directing the verdict for the defendant in this personal injury suit, and in alternatively granting the motion for new trial on the grounds that the verdict was "contrary to the manifest weight of the evidence" and the damage award was "shocking to the judicial conscience."

Cecil Lee and his wife sued Southern Bell for injuries he sustained when its flagman directed him to drive his vehicle over a guy wire. A van in the next lane caught the wire in its undercarriage, pulling it tight into the path of Lee's vehicle, jerking him to a halt and injuring his neck. The accident took place at 7:15 AM on Michigan Avenue, a four lane street with a center passing lane, heavily traveled at that time of day. The traffic had been stopped by two flagmen while two linemen attempted to string the guy wire across the street using a bucket truck. The wire was attached to the tops of both poles and the linemen (one in the bucket and one on the ground, both on the north side of the street) were about to raise it into place by pulling on the wire. Lee's vehicle was stopped several cars back in the outside eastbound lane (on the south side).

While the wire was still only a few inches off the pavement, a pickup truck "broke ranks" and drove toward it. The linemen dropped the wire to prevent an accident, and the pickup truck safely passed over the wire on the pavement. While it would have taken the linemen only 15-20 seconds to raise the wire before they dropped it, they estimated that at that point it would take 3-5 minutes to retrieve and raise the wire, and decided to leave the wire on the pavement and allow the traffic (four lanes of 7-10 cars each) to proceed over it before again stopping traffic to raise the wire. ¹ When they saw the wire caught on the van, the men on the ground turned and ran, because they did not want to get hurt and knew "something was fixing to happen."

The Bell Systems Practices manual, "Suspension Strand Placing Methods," section 2.14 ("Road Crossings") states:

Where strand is placed over a highway, exercise extreme care to prevent the strand from becoming entangled with passing vehicles. Use a flagman for control of traffic, if required.

The manual describes several methods of placing strand: using an aerial lift vehicle, in which the strand apparently never touches the ground (section 3); using a moving reel, in which the strand is allowed to pay out on the ground and is then raised into position (section 4); and using a stationary reel, in which the strand may be pulled in on the ground "if traffic does not interfere" (section 5). ² Section 4.13 provides (emphasis added):

At road crossings, stop traffic on the road being crossed and pay out strand past the first pole on the other side as shown in Fig. 4. Raise strand into position on both crossing poles and tension and snub it before allowing traffic to proceed. ³

The lineman in the bucket testified that law enforcement personnel would have been available to help control traffic, if the company had requested it. He also testified that it is Southern Bell practice and preference to use flagmen, cones and "men working" signs, to stop traffic, and when possible, to notify law enforcement. He did not know if law enforcement had been notified. The supervisor, who was not present at the time, was apparently aware of the heavy traffic at the site.

The men testified that they were aware of the quoted sections from the manual, but that they had on other occasions let traffic pass over wires and had never had such an accident. They testified that, except for the pickup truck, the motorists did nothing wrong, and that there was nothing Lee could have done to avoid the accident. Bell's claims manager found no evidence that Lee was at fault.

Lee testified he was going about 30 m.p.h. with the traffic, and that it was "like hitting a brick wall." He did not have symptoms at the time of the accident, but woke up the next morning with pain in his head and back. After ten months of chiropractic treatment, he saw Dr. Dennie, a physical medicine and rehabilitation specialist, who found limitations on range of motion in his neck, muscle spasms and severe degenerative disc disease aggravated by the accident. Dr. Dennie stated that the pain and limitation on motion were permanent and that Lee had reached maximum medical improvement with a 7% permanent impairment, although the symptoms would fluctuate. Lee saw Dr. Grimm, an orthopedic surgeon, whose findings were essentially the same as Dr. Dennie's, except that he also treated Lee for numbness in the hands, probably carpal tunnel syndrome. Dr. Grimm prescribed muscle relaxants and anti-inflammatory medication for the chronic neck pain and opined that Lee's symptoms were caused by the accident.

Lee, a 74 year old painter, testified that he was "like a bull" before the accident and had no back or neck pain and no health problems, but that now the pain in his neck and upper back never stops and he eats aspirin "by the handful." He testified that he loves to work and used to help his wife around the house and yard, but now cannot lift more than five pounds and cannot help her. This was corroborated by a friend who testified that Lee was very active before the accident and could outwork alot of young men, but now cannot do much and is always eating aspirin and rubbing his neck and shoulder, and that his wife now "has to do an awful lot."

Lee has worked as a painter since he was fifteen years old. He worked as a paint supervisor for several large companies before he retired in the early 1980's and began working in partnership with Larry Summerall. He testified that before the accident he made $7/hour and worked at least 40 hours/week except during the winter when he worked about half-time, but that he had not been able to work since the accident, although he tried twice to return to painting. ⁴ Summerall corroborated this testimony and testified that the accident "put me out of business." He stated that there was no better painter than Lee and that he "had to hold him down."

Southern Bell moved for a directed verdict at the close of the plaintiffs' case, asserting that Lee had failed to show that it was negligent or that the accident was foreseeable, i.e., that the risk was reasonably anticipated. Lee's attorney pointed out that negligence, causation and foreseeability are jury questions and argued that Southern Bell performed this operation at the wrong time (rush hour) on a busy street, without law enforcement help to control the traffic, using a four man crew (without a supervisor) who allowed four cars at a time to cross the cable, contrary to its own manual which directs them to stop traffic and "exercise extreme care." The court reserved ruling on the motion.

The mortality tables indicate Lee's life expectancy is 9.6 years (trial was held three years after the accident). In closing argument, Lee's attorney argued that Lee had $432 in unpaid medical bills ($2,421 total bills); that if he had worked five years after the accident he would have made $58,000; and that his pain and suffering, disability, mental anguish, and loss of the capacity to enjoy life was worth $50,000/year for the rest of his life ($538,000 total damages).

Southern Bell's attorney argued that this figure was "ludicrous" and that Southern Bell was simply not at fault for the accident. He argued that Lee "wants you to take the view that because this was Southern Bell's work it must be their fault," but that the test is, "What would a reasonably prudent person do?" He asserted that the lineman who suggested they let the cars pass over the wire after the truck broke ranks made a judgment call based on his experience, that under the circumstances he acted reasonably, and that Lee was going too fast over the wire.

Lee's attorney responded that Lee was not asking for a sympathy vote or a vote against a large company just because it was in control of the project. He pointed out that Southern Bell was on trial, not one lineman. He argued that the company, through its employees, was negligent in the way it handled the job, that the employees did not use reasonable care in this case, that they knew how dangerous it was, and that their failure to use reasonable care resulted in Lee's injuries.

The verdict form, to which Southern Bell had no objection, contained four questions: 1) was Southern Bell negligent, 2) was Lee negligent, 3) if they both were, what percentages of negligence to each, and 4) "What is the total amount (100%) of any damages sustained by Plaintiffs, CECIL E. LEE and IRMA M. LEE, and caused by the incident in question?" The court instructed the jury that on the last question, in one blank "you would fill in in dollars the total amount of damages that you find he [Cecil Lee] has suffered as a result of the incident," and in the other blank "the total amount of damages you assess to her [Irma Lee]," and that the court would reduce the total amount of damages if the jury found Lee negligent. The parties did not object to the instructions. During deliberations, the jury posed this question: "In regard to question # 4 do we place dollar amount or percentage?" The trial judge told them to put in dollars rather than percent. The jury found that Southern Bell was negligent and that Lee was not negligent, and awarded...