Martishius v. Carolco Studios, Inc.

• Decision Date: 10 May 2002
• Docket Number: No. 175A01.,175A01.
• Citation: 355 N.C. 465,562 S.E.2d 887
• Court: North Carolina Supreme Court
• Parties: James L. MARTISHIUS and Cindy K. Martishius v. CAROLCO STUDIOS, INC.

562 S.E.2d 887

355 N.C. 465

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

No. 175A01.

Supreme Court of North Carolina.

May 10, 2002.

Kirby & Holt, L.L.P., by David F. Kirby and Isaac L. Thorp, Raleigh, for plaintiff-appellees.

Law Offices of William F. Maready, by William F. Maready, Winston-Salem; and Smith Helms Mulliss & Moore, L.L.P., by James G. Exum, Jr., Greensboro, for defendant-appellant.

EDMUNDS, Justice.

Plaintiffs James L. Martishius (plaintiff) and Cindy K. Martishius initiated this negligence action against Carolco Studios, Inc. (defendant) for injuries sustained on 1 February 1993 when plaintiff came into contact with uninsulated energized power lines while working on defendant's premises. Now before this Court are the issues of whether the Court of Appeals erred in affirming the trial court's denial of defendant's motions for directed verdict and for judgment notwithstanding the verdict regarding negligence and contributory negligence. For the reasons set forth below, we affirm the holding of the Court of Appeals.

An understanding of the issues presented in this appeal requires an explication of the relationships between the parties. In 1984, Dino DeLaurentis and the North Carolina Film Corporation (Film Corporation) acquired and built a motion picture studio on a thirty-two-acre site in Wilmington, North Carolina. Over time, the studio, which began as a single building, expanded to include several stages, and a back lot was constructed for outdoor filming. During 1984, Film Corporation hired engineer Gerald Waller to assist in construction of the facilities and to design an electrical distribution system for the premises. Waller presented to Film Corporation various options for the provision of electricity to the back lot, including overhead lines and buried lines. Factors affecting the decision as to which option to select included the costs of burying lines (which Carolina Power & Light (CP & L), the electricity supplier, would pass on to Film Corporation), the aesthetic considerations of having exposed lines, safety, and the requirements of any future expansion. Film Corporation elected to have CP & L install uninsulated overhead power lines to the back lot.

The original separation between the back lot and the newly installed power lines was seventy-five feet from the rear of the lot and twenty-five feet from the side. However, as the studio continued operation and new films were produced, the separation between the power lines and the back lot diminished. This shrinkage did not end when defendant became the owner of the studio in 1989. That same year, defendant promoted Waller to the position of facility manager. Jeffrey Schlatter, construction coordinator for Crowvision, Inc., an independent production company involved in this case, testified that from 1984 through 1993, the back-lot set expanded toward the power lines with each subsequent production. On one occasion, Waller requested that some of the back lot's power lines be relocated because of their dangerous proximity to the back lot during the filming of "Aunt Julia, the Script Writer." On another occasion, Waller agreed with a production coordinator of the movie "Teenage Mutant Ninja Turtles" to de-energize a portion of the back lot when construction was to take place approximately fifteen feet from power lines.

Waller aptly described the back lot as a constantly changing construction zone. Production company employees working on the back lot frequently attached large facades to telephone poles that were thirty to forty feet high to create a particular set. A number of these poles had been left from prior productions; in fact, plaintiff presented at trial an aerial photo of the back lot taken in February 1992, almost one year before the instant accident, showing such poles standing within ten to twelve and a half feet of the power lines. A set facade would appear in the film as if it were a building or other part of a scene. As one witness testified, the facade "would be very real, and it is composed of, this street here, of telephone poles. You imagine the city of Wilmington, a facade, pieces of plywood with fake bricks put on and windows cut in them, ... with telephone poles behind it holding it up, instead of buildings back there."

In order to attach facades to poles at heights exceeding thirty feet, production company workers frequently used mobile boom lift machines. The lifts used in the instant case were manufactured by JLG Industries, and the parties consistently referred to the lifts as "JLGs" (JLG). A JLG resembles a "cherry picker" and was described by one of plaintiff's witnesses as "a piece of equipment that has tires and can move from spot to spot, rotates around with an extending boom, work platform, so that it will get to high places, things that you can't get with a ladder or scaffolding." The operator of a JLG usually stands in a basket at the end of the extendable boom. In addition to attaching and dismantling facades, JLGs were used in a variety of ways on a movie set. Construction foreman Ralph Woolaston testified that based on his experience working in the film industry since 1978, JLGs are also used for construction and dressing of sets, setting and holding backdrops, and filming. Plaintiff produced substantial testimony at trial from film industry workers that JLGs routinely and customarily were used on both the front and back of the poles to attach and take down facades. One of the workers testified: "We were constantly working the back of the facade. There was all kinds of movement, all kinds of machinery."

A construction access road, used for moving materials and prebuilt pieces, ran directly underneath the power lines serving the back lot. This road separated the back lot from an area known as the "bone yard," where sets from previous movies were stored. Although the bone yard belonged to defendant, movie production companies could, with permission from defendant, reuse some of the pieces kept there. Workers using motorized equipment such as JLGs to gather material from the bone yard or to travel to the rear lot by means of this access road therefore drove beneath the power lines. The JLG operated by plaintiff was on this access road at the time of his 1 February 1993 accident.

As noted above, defendant became the owner of the studio in 1984. Defendant made one film of its own, then elected to rent the facilities to independent production companies. Crowvision was thereafter formed to produce the movie "The Crow," and Crowvision and defendant entered into an agreement on 29 December 1992. Under this agreement, defendant gave Crowvision a license to use a portion of defendant's facilities, equipment, and personnel "for the purpose of producing [a] motion picture[]." The agreement further required Crowvision to obtain approval from defendant before making any alterations to the studio property. Defendant warranted "that the licensed premises and facilities hereunder are satisfactory and in a safe condition."

Before production began on "The Crow," Waller, defendant's facility manager, toured the facilities and back lot with Schlatter, Crowvision's construction coordinator. Waller stated that the purpose of the "walk-through" was to "discuss the work environment, the conditions of the backlot [sic], to discuss what their needs were, and again, to make them aware of the environment." Schlatter's and Waller's inspection included the overhead power lines that then were in the vicinity of the back lot. These lines consisted of three parallel lines five feet apart. The two outside lines were energized and were 27.8 feet above ground. Waller explained to Schlatter that CP & L had a thirty-foot easement around the lines and that Crowvision would have to keep at least ten feet away from the outer lines.

In November 1992, Schlatter hired plaintiff to work for Crowvision as a carpenter. One of plaintiff's witnesses testified that movie-set carpenters "build the sets for the, for the movie to be shot on.... [A]nything you could imagine, we build, I mean, everything, anything." Plaintiff, who arrived with experience gained working on other movies, initially came to Wilmington to work on the film "Mario Brothers." While working on the set of that movie, plaintiff first began using lift equipment. Although he never received formal training, plaintiff became so proficient that he was described by his foreman as one of the best JLG operators.

In the weeks leading up to the accident, the back lot was the scene of considerable activity. Plaintiff's evidence indicated that Waller was present on the studio grounds every day, touring the back lot. In January 1993, Crowvision began work on a church and cemetery facade for "The Crow." As early as a year before the accident, the portion of the back lot where Crowvision employees worked was within ten to twelve and a half feet of energized power lines. Some of the poles on which facades would be hung "[had] been there for several years. There [had been] a set there built ... in exactly the same location." In addition, ten or eleven new poles had been installed for "The Crow." Before the new poles were installed, Schlatter and others from Crowvision discussed with Waller the exact locations where the poles would be positioned. Plaintiff presented evidence at trial that Waller thereafter approved their installation. Although Waller later testified that he did not realize that Crowvision had encroached on CP & L's power-line easement, plaintiff's evidence established that Waller knew where the power lines were located in relation to the poles. Schlatter additionally testified that whenever Crowvision sought to make alterations to the set, he was required to meet with Waller because "[t]hat's how it was." Construction foreman Woolaston described the interaction between Crowvision and Waller regarding the placement of the new poles: "The poles...