Martishius v. Carolco Studios, Inc., COA00-199.

• Decision Date: 20 February 2001
• Docket Number: No. COA00-199.,COA00-199.
• Court: North Carolina Court of Appeals
• Parties: James L. MARTISHIUS and Cindy K. Martishius, Plaintiffs, v. CAROLCO STUDIOS, INC., Defendant.

542 S.E.2d 303

142 NC App. 216

James L. MARTISHIUS and Cindy K. Martishius, Plaintiffs, v. CAROLCO STUDIOS, INC., Defendant.

No. COA00-199.

Court of Appeals of North Carolina.

February 20, 2001.

Kirby & Holt, L.L.P., by David F. Kirby and Isaac L. Thorp, Raleigh, and Goldberg & Anderson, by Frederick D. Anderson, Bloomington, for plaintiff-appellees.

Law Offices of William F. Maready, by William F. Maready, Winston-Salem, for defendant-appellant. GREENE, Judge.

Carolco Studios, Inc. (Defendant) appeals a 23 July 1999 judgment entered consistent with a jury verdict finding Defendant negligent in causing injuries to James L. Martishius (Plaintiff) and awarding Plaintiff $2,500,000.00.¹ Defendant also appeals the trial court's denial of Defendant's motion for judgment notwithstanding the verdict, the trial court's denial of Defendant's motion for a new trial, and the trial court's order assessing costs against Defendant.²

Crowvision, Inc. (Crowvision), a production company formed to produce the movie "The Crow," entered into a license agreement with Defendant on 29 December 1992 for the use of a portion of Defendant's land, stages, facilities, equipment, and personnel in connection with production of "The Crow." Defendant warranted to Crowvision that the premises and facilities were "satisfactory and in a safe condition."

Prior to Crowvision beginning production of "The Crow," Gerald Waller (Waller), a licensed electrician and Defendant's on-site facility manager, showed Jeffrey Schlatter (Schlatter), Crowvision's construction coordinator, the back lot of Defendant's facilities and inspected the back lot's power lines. Waller informed Schlatter that Carolina Power & Light Company (CP & L) had a thirty foot right-of-way and Crowvision would have to keep its set at least ten feet from the power lines to avoid encroaching on CP & L's easement. CP & L's three power lines ran parallel five feet apart. Both of the outer lines were energized and were installed 27.8 feet above the ground. The energized lines were buffered on both sides by ten feet of CP & L's easement.

In January 1993, Crowvision installed 10 or 11 telephone poles on the back lot to facilitate the construction of a church and cemetery set facade. On 1 February 1993, Paul Saunders, Plaintiff's supervisor, instructed Plaintiff to assist the construction foreman on the church/cemetery set. Plaintiff used a JLG, "a piece of equipment that has tires and can move from spot to spot, rotates around with an extending boom [and a] work platform, so that it will get to high places," to attempt to move the church door. As Plaintiff positioned the JLG to pick up the church door, the basket of the JLG contacted an overhead power line. Plaintiff has no memory of how the accident happened, and Plaintiff sustained severe burns about his body as a consequence of the contact.

At trial, Plaintiff presented evidence Waller inspected the activities on the back lot every day and was physically present when the holes were dug for the telephone poles upon which the set facades were hung. In fact, Waller was aware the poles were within a foot or two of the power lines. Schlatter testified he obtained Waller's permission before making set alterations, including changes to or additions of set facades. Schlatter also testified that the route taken by Plaintiff to move the church door was the best route as other routes were blocked or inaccessible. Shortly after the accident, Waller told Schlatter that he had warned Defendant "for years to do something about these lines."

John Christopher Crowder, a carpenter with Crowvision, testified the job Plaintiff was performing on the day of the accident was a "one-man operation" and that most carpenters would not use two people to perform the job Plaintiff was performing at the time of the accident.

Witnesses testified Plaintiff was a competent operator of the JLG and was one of the best at running the JLG. On the day of the accident, Plaintiff was operating a new JLG which had different controls than other JLGs on the set. A representative of Hertz, the company Crowvision leased the JLG from, testified the new JLG had electronic controls and was jerky and erratic. The new JLG put individuals at a greater risk of striking objects in close proximity to the JLG.

Ralph Woollaston (Woollaston), Crowvision's construction foreman, testified it is very difficult to see power lines while operating a JLG. Woollaston stated the power lines become cluttered in trees and the power lines look invisible and "[i]f the sun is in your eyes, you are not going to see them at all." The day after Plaintiff's injury, Woollaston and Schlatter went to the scene of Plaintiff's injury. They looked at the power lines from several vantage points, conditions being similar to the time of Plaintiff's injury, and "[t]here were several places that ... you couldn't see them." At times, the power lines appeared as "pencil lines in the air." Woollaston testified use of the JLG was the best method to use in the work Plaintiff was performing at the time of the accident and that a forklift was not a preferable method because it would have flipped over. On cross-examination, Woollaston stated the door Plaintiff was moving was a very heavy door and otherwise would have taken five men to move the door.

Dr. Harvey Snyder (Dr. Snyder) was tendered as an expert in the field of human factors and visual perception. Over Defendant's objection, the trial court accepted Dr. Snyder as an expert in human factors and visual perception. The trial court, however, directed Dr. Snyder to avoid making legal conclusions. Based on depositions, affidavits, and measurements taken by Dr. Snyder, Dr. Snyder opined that Plaintiff approached the area where the accident occurred and:

[h]is objective was to reach in through the gap between the vertical structure ... and the poles to the right of it to pick up a flat which looked like a window or doorway lying on the ground, probably some 70 or 80 feet away.... [Plaintiff] operated the JLG from the bucket, raised it up over the structure ... to his right, or beyond the bucket as we see it sitting right now, boomed out to attempt to pick up the flat lying on the ground and affixed it to the bucket to bring it back. [Plaintiff] could not reach it. The boom length was not adequate to get there. [Plaintiff], therefore, started booming back in to return to the position ... [,][b]oomed in, elevated and rotated to get back toward[ ] that position, and in the process, contacted or came very close to the energized line and made contact with the neutral line, the lower line, the lower line being hit by the bucket.

In Dr. Snyder's opinion, the power lines "were located dangerously close to the structures which [Plaintiff was] working on.... There is insufficient space between the structures and the lines for a person to use elevating equipment safely." Dr. Snyder stated Plaintiff's operation of the JLG was made extremely difficult because Plaintiff was looking directly into the sun as he operated the JLG and, thus, was prevented from seeing the power lines.

In addition, Plaintiff's "perception of the distance to the lines and even the ability to see the lines would have been greatly compromised, and it is reasonably likely that someone in that position looking at those lines would not be able to see them because of the sun[`s] glare." Dr. Snyder testified the power lines did not "provide any freedom of movement for an operator, ... any forgiveness, whatsoever, to an operator who moves slightly in the wrong dimension in coming close to the lines." Dr. Snyder stated there were various alternatives available to Defendant to safeguard against the particular hazard including: de-energizing the power lines; moving or burying the power lines; or not permitting a set to be built in close proximity to the power lines. Dr. Snyder testified that "[w]arnings are not a fail-safe device for eliminating hazards, and if the hazard could have been eliminated, it should have been eliminated."

David MacCollum (MacCollum) is a licensed industrial engineer and a licensed safety engineer, who identifies hazards and defines available safeguards to control the hazards. MacCollum has been a certified safety professional for approximately thirty years. Plaintiff tendered MacCollum as an expert in the field of safety engineering. The trial court accepted Plaintiff's tender over Defendant's noted objection.

Based on photographs and previous testimony at trial, MacCollum testified:

[Plaintiff] had to come within close proximity and work next to those power lines and judge the best that he could that he had visual clearance.

... [Plaintiff was] looking toward[ ] the sun, which makes [the power lines] hard to see. It's hard to, in controlled studies, to be able to judge your clearance, particularly when you have multiple tasks. So in the process, my assessment, in summary, is that [Plaintiff] thought he had clearance, and he was doing his job as he was told to do, and he was doing it consistent with the requirements of the equipment and the labels in the manual that gave directions on how to perform your work around power lines safely.

MacCollum also formed an opinion concerning the conduct of Defendant. MacCollum opined that Defendant "had a hazardous workplace because the power lines were present[,] ... the power lines could have been easily removed, and ... [Plaintiff], the operator, was following the basic instructions from the JLG." MacCollum testified that the custom and practice in the construction industry "is to separate or remove the power lines from the workplace before the lift equipment is introduced into the work environment, so that it is now physically impossible to strike the power lines with lift equipment." Defendant could have removed the power lines from the work site by: burying the power lines; barricading the area off to restrict entry into the area;...