McFarland v. Entergy Mississippi, Inc.

• Decision Date: 06 October 2005
• Docket Number: No. 2003-CT-00538-SCT.,2003-CT-00538-SCT.
• Citation: 919 So.2d 894
• Parties: Deborah McFARLAND v. ENTERGY MISSISSIPPI, INC.
• Court: Mississippi Supreme Court

919 So.2d 894

Deborah McFARLAND v. ENTERGY MISSISSIPPI, INC.

No. 2003-CT-00538-SCT.

Supreme Court of Mississippi.

October 6, 2005.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Robert W. Sneed, Jackson, Attorney for Appellant.

John H. Dunbar, Walter Alan Davis, Oxford, Attorneys for Appellee.

EN BANC.

ON WRIT OF CERTIORARI

SMITH, Chief Justice, for the Court:

¶ 1. Thomas R. McFarland¹ sued Entergy Mississippi, Inc. in the Circuit Court of the First Judicial District of Hinds County, Mississippi, for injuries McFarland received while driving a truck which collided with a sagging transmission line maintained by Entergy, in Leland, Mississippi. A motion for directed verdict by Entergy was denied, and the jury returned a verdict for the McFarland in the amount of $300,000.00.

¶ 2. Entergy filed post trial motions, including a Motion for Judgment Notwithstanding the Verdict ("JNOV") and in the Alternative, for New Trial. The trial court then granted Entergy's Motion for JNOV, and held that the motion for new trial was granted in the event that the JNOV was overturned on appeal.

¶ 3. McFarland appealed, and the Court of Appeals reversed the trial court's grant of the JNOV and remanded for a new trial. McFarland v. Entergy, 918 So.2d 697, 705 (Miss.App.2004). McFarland filed a petition for certiorari in this Court seeking review of the Court of Appeals' decision not to review the trial court's conditional grant of a new trial, as provided in Rule 50 of the Mississippi Rules of Civil Procedure. Entergy also filed a petition for certiorari in this Court seeking review of the Court of Appeals' decision to reverse the JNOV. Both petitions for certiorari were granted.

¶ 4. After thorough review, this Court holds that the Court of Appeals incorrectly held Entergy to a higher standard of care. The jury, however, was instructed that only a degree of ordinary care was required under these facts. We also hold that the trial judge was correct in granting Entergy's Motion for a JNOV and the Court of Appeals erred when it reversed the trial court's grant of the JNOV and remanded the case for a new trial. Finally, we hold that McFarland waived the remaining issues concerning the conditional grant of a new trial.

FACTS

¶ 5. On February 9, 1994, a severe ice storm struck the Mississippi Delta causing extensive damage. The ice storm caused trees to fall and limbs to snap, as well as downing power lines throughout the area. The area involved was roughly one hundred fifty miles long and fifty miles wide, stretching from DeSoto County to the Sharkey County line and eastward through Leflore County. In total, the storm affected an area of approximately 5,200 square miles.

¶ 6. There were hundreds of miles of downed power lines including over 25,000 poles and hundreds of miles of downed transmission lines. Numerous towns, cities, and untold thousands of individuals throughout the area went without power for weeks. Even on the date of the accident, five days after the storm commenced, there remained nineteen cities and towns without power and 45,000 Entergy customers in Washington County alone without power. Approximately 2,500 additional electrical power workers from other companies and surrounding sister states were sent in to help with this disaster. Additionally, thousands of volunteers were involved in helping with cleanup and repair in the various affected communities. For the first time ever, Entergy lost steel structure transmission poles. Over 100 transmission line structures alone had to be repaired by specialized crews. A priority system was initiated for restoring power: hospitals, water systems, municipal services, sheriff's and police offices, sewer systems, then all others. Helicopter surveys conducted by Entergy revealed that approximately 80% of a twenty mile stretch of transmission lines, running from Indianola to Greenville, were flattened to the ground. The same survey, however, did not reveal any problem with the site at issue because, as the testimony revealed, a sagging line could not be detected from the air as easy as a flattened line lying on the ground.

¶ 7. Before the accident occurred on February 14, 1994, at approximately 3:30 p.m. former Deputy Sheriff Tony Sullivan testified that he observed a sagging transmission line over North Main Street in Leland, Mississippi. Sullivan also testified that he informed a man about the sagging line who was sitting in a truck with the MP & L (Entergy's predecessor) logo on its side.

¶ 8. Public travel advisories existed throughout the area warning drivers of downed power lines and other open and obvious hazards. Ignoring those warnings, McFarland drove his employer's eighteen-wheeler into the Mississippi Delta during the night time. At approximately 7:00 p.m. as McFarland traveled at a speed of no more than 15 miles per hour in the severely devastated area, he struck the dead transmission line which sagged approximately eight feet above the roadway.

¶ 9. The following issues are before us:

I. Did the Court of Appeals Err When it Applied a High Standard of Care to Entergy?

II. Did the Trial Court Err by Granting Entergy's Motion for Jnov?

III. Do the Appellate Courts Have Jurisdiction to Determine Whether a Trial Court's Grant of a New Trial Is Appropriate When a Trial Court Concurrently Enters a Jnov and a Conditional Grant of a New Trial, and the JNOV Is Reversed on Appeal?

IV. Whether the Trial Court Erred by Granting, in the Alternative, Entergy's Motion for New Trial.

DISCUSSION

I.

¶ 10. The Court of Appeals decision stated that "[t]he public policy of this State requires `utilities to exercise a very high degree of care in protecting the public from the dangers of electricity'" McFarland, at ¶ 11 (citations omitted). McFarland argues that the Court of Appeals was correct to impose this higher standard of care upon Entergy, but also argues that at trial Entergy was only held to a reasonable care standard, and therefore this issue is irrelevant. Entergy argues that when the property or activity of the utility does not involve the risk of electrocution, they should only be held to the duty of reasonable care. We agree.

¶ 11. Since 1907, this Court has held utility companies to a high standard of care. "[C]orporations handling the dangerous agency of electricity are bound, and justly bound, to the very highest measure of skill and care in dealing with these deadly agencies." (emphasis added). Temple v. McComb City Elec. Light & Power Co., 89 Miss. 1, 42 So. 874 (1907). This Court has also stated, "The degree of diligence which a distributor of electricity must observe in the distribution of the dangerous agency of electricity is a very high degree of care." MP & L v. Shepard, 285 So.2d 725, 729 (Miss.1973) (emphasis added).

¶ 12. This high standard of care was imposed because of the life threatening dangers of electricity. In Shepard, this Court quoted 26 Am.Jur.2d Electricity, Gas and Steam § 42, at 248-49 (1966), which stated:

The degree of care required to be used in the production, distribution, and use of electricity is stated in various terms which, perhaps, convey merely one idea. To declare that the utmost care must be used to prevent injury sound different in statement than to say that ordinary care must be used in view of all the circumstances; but when analyzed, the meaning is not far different, for the ordinary care required under the circumstances is, in its practical application and in view of the highly dangerous character of electricity, a relatively high degree of care.

285 So.2d at 729. (emphasis added). Therefore, the degree of ordinary care required under the circumstances, i.e. when dealing with the dangerous nature electricity, is a high degree of care. "Moreover, the degree of care increases as the danger increases." Id. The danger of a live wire, is no doubt more dangerous than a wire without electricity; thus the high degree of care should not be utilized unless such is required under the circumstances. In Spears v. Miss. Power & Light, 562 So.2d 107 (Miss.1990), this Court utilized the reasonable care standard when determining whether or not a power company had negligently placed a power pole in the middle of a heavily traveled parking lot. Id. at 108. This Court also stated in Spears that, "Reasonable care is the care a reasonable person would exercise under like circumstances." Id.

¶ 13. We find that utility companies should be held to a reasonable standard, i.e. they should exercise the care that is reasonable in like circumstances. The degree of care that is reasonable will either increase or decrease based upon various circumstances. When circumstances involve live wires, we hold that the reasonable standard of care is elevated to one of a high degree. However, if electricity is not present, the utility company should exercise "reasonable care."

¶ 14. After an examination of the record, it is apparent that the jury was instructed that Entergy was to be held to a reasonable standard of care. In fact, both attorneys for McFarland and Entergy referred to this standard of reasonableness in their closing arguments. Furthermore, the jury instructions only referred to a reasonable standard of care. While the Court of Appeals erroneously imposed this higher standard, this standard had no impact at trial because the jury was properly instructed that Entergy was to be held to a reasonable care standard. Except for clarifications of the proper standard, the issue is irrelevant and therefore Entergy's appeal on this issue is without merit.

II.

¶ 15. The standard of review for a grant of a JNOV verdict is well settled:

A motion for a JNOV tests the legal sufficiency of the evidence supporting the verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So.2d 20, 23 (Miss.1994). It asks the court to hold, as a matter of law, that the verdict may not stand. Goodwin v. Derryberry Co., 553 So.2d 40, 42 (Miss...