McFarland v. Entergy Mississippi, Inc.

• Decision Date: 12 October 2004
• Docket Number: No. 2003-CA-00538-COA.,2003-CA-00538-COA.
• Parties: Thomas R. McFARLAND, Appellant v. ENTERGY MISSISSIPPI, INC., Appellee.
• Court: Mississippi Court of Appeals

918 So.2d 697

Thomas R. McFARLAND, Appellant v. ENTERGY MISSISSIPPI, INC., Appellee.

No. 2003-CA-00538-COA.

Court of Appeals of Mississippi.

October 12, 2004.

Rehearing Denied January 11, 2005.

Robert W. Sneed, Jackson, attorney for appellant.

John H. Dunbar, Walter Alan Davis, Oxford, attorneys for appellee.

EN BANC.

BARNES, J., for the Court.

¶ 1. Thomas R. McFarland brought suit against Entergy Mississippi, Inc. for injuries he received when the truck he was driving collided with a power line maintained by Entergy. The trial judge overruled Entergy's motion for a directed verdict after the evidence was presented and allowed the case to be heard by the jury. The jury returned a verdict for McFarland in the amount of $300,000. The judge then granted Entergy's motion for a judgment notwithstanding the verdict (JNOV) and stated that a new trial would be warranted if the grant of the JNOV was overturned on appeal.

¶ 2. McFarland has appealed the decision of the trial judge. He argues that the trial court failed to consider the evidence in the light most favorable to him and failed to give him the benefit of the favorable inferences from the evidence. He asserts that there was more than sufficient evidence to support the jury's verdict and damages and asks this Court to reinstate them. He also raises that Entergy had a clear duty to warn him of the dangerous condition of the transmission line and that there is no exception to Entergy's heightened standard of care. He contends that Entergy's argument that the Manual on Uniform Traffic Control Devices (MUTCD) prevented the company from warning motorists of the dangerous condition of the transmission line is "disingenuous at best" and misleading.

¶ 3. Because we find that, based on the evidence presented, the jury could, and did, reasonably and logically find that Entergy did not exercise the degree of care and skill reasonably expected of the utility company, we reverse the trial court's grant of judgment not withstanding the verdict and remand for a new trial consistent with the trial court's order.

FACTS

¶ 4. On February 9, 1994, due to an ice storm in the Mississippi Delta, most intersections in Washington County, Mississippi, were closed due to fallen tree limbs and power lines. The storm was one of the worst on record, and the damage was extensive, affecting thousands of residents and requiring Entergy to bring in 2,500 extra workers from surrounding states. By as late as the eleventh, all major intersections had been cleared. On North Main Street, just north of the city of Leland, one of Entergy's transmission lines hung only six to eight feet above the road surface. This transmission line ran from Greenville to Indianola and was properly secured in other intersections except the one in question which did not contain any warning devises for motorists.

¶ 5. Transmission lines are "very high voltage," carrying between 115,000 and 500,000 volts of electricity, and are roughly the size of a person's wrist. They run cross-country to substations where the voltage is passed through power transformers in order to be "stepped down" to 13,000 volts for distribution into towns via smaller distribution lines which are approximately the size a person's thumb. Although the testimony was unclear as to the exact voltage and diameter of the line with which McFarland came into contact, Entergy employees admitted the transmission line was "very strong."

¶ 6. Deputy Sheriff Tony Sullivan testified that he noticed the low-hanging line, which he described as a "cable," in the days preceding the accident but that barricades were in front of the line to protect traffic. According to Sullivan, he returned to the scene on February 14 and saw that while the power line was still down, the barricades had been removed. Sullivan testified that he drove to the Mississippi Power and Light¹ substation less that 100 yards from the low-hanging line and found crews present. He approached an MP & L truck and spoke to the MP & L employee, who was in the driver's seat. Deputy Sullivan testified he informed the MP & L employee "that this was a hazardous situation, that the barricades needed to be put back up or either the lines needed to be taken down because at some time drivers come in going to La-Z-Boy and that some time they come across down North Main, and its another little street they can go across and it brings them out at La-Z-Boy. I told him that it was a hazardous situation." Although he could not recount the employee's exact response at trial nine years later, Deputy Sullivan testified that he left "under the impression that [the employee] was going to take care of the problem or either put the barricades back up."

¶ 7. Approximately three to four hours later, McFarland's eighteen wheeler struck the transmission line. McFarland lost consciousness and spent ten days in the LeFlore County hospital before going home to Los Angeles for further treatment. His total medical expenses were approximately $18,500 coupled with pain and suffering; his lost wages were approximated at $90,000.

DISCUSSION

¶ 8. A motion for JNOV challenges the sufficiency of the evidence to support the jury's verdict. Patton-Tully Transp. Co. v. Douglas, 761 So.2d 835, 843 (Miss.2000). A jury verdict can only be set aside when it is based on legally insufficient evidence or it is against the substantial weight of the evidence. C & C Trucking Co. v. Smith, 612 So.2d 1092, 1098-99 (Miss.1992). When considering the grant or denial of a JNOV, the court must consider the evidence in the light most favorable to the non-movant, giving that party the benefit of all favorable inferences that may be reasonably drawn from the evidence. Buskirk v. Elliott, 856 So.2d 255, 266(¶ 30) (Miss.2003); Steele v. Inn of Vicksburg, Inc., 697 So.2d 373, 376 (Miss.1997). Furthermore, we review "the evidence as a whole, taken in the light most favorable to the verdict" and will affirm the grant of JNOV only if "no reasonable, hypothetical juror could have found as the jury found." See Bell v. City of Bay St. Louis, 467 So.2d 657, 660 (Miss.1985).

¶ 9. In this case there was evidence which could have supported a jury verdict for either party. It is not for this Court to reweigh the evidence, but to consider the evidence in the light most favorable to the verdict which resulted and which favors McFarlane. "A verdict returned by a jury in a civil case is afforded substantial deference when the dissatisfied litigant seeks to have the court enter a judgment compelling a contrary outcome." Hearn v Brown, 876 So.2d 380, 382(¶ 10) (Miss.Ct.App.2003).

¶ 10. Entergy's motion for a JNOV presented three grounds: (1) the evidence was insufficient to prove liability; (2) Entergy had no right or duty to place traffic control devices on North Main Street under the circumstances of this case; and (3) Entergy would have violated the Manual on Uniform Traffic Control Devices (MUTCD) by placing cones on the street when Entergy was not working there. As we will discuss, there was sufficient evidence favorable to McFarland to support the jury's findings. We are also not convinced that Entergy may use the MUTCD to shield itself from responsibility in this case. In granting the JNOV "based on the grounds asserted," the trial judge was clearly in error.

¶ 11. The public policy of this State requires "utilities to exercise a very high degree of care in protecting the public from the dangers of electricity." Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So.2d 1202, 1208(¶ 17) (Miss.1998); see also Entergy Mississippi, Inc. v. Hayes, 874 So.2d 952, 956(¶ 22) (Miss.2004) (quoting Burdette).

[S]ince 1907 th[e Mississippi Supreme] Court has bound corporations handling the dangerous agency of electricity to the very highest measure of skill and care in dealing with this deadly agency. [Mississippi Power & Light Co. v. Shepard, 285 So.2d 725, 730 (Miss.1973)] also reaffirmed the rule that a public utility company must place its wires so they are not dangerous to persons and property. It is the continuing duty of the utility to maintain its wires over streets and highways in such a manner that they will not become dangerous to persons and property. The Court also recognized that the duty is not absolute. The utility is not an insurer against all injuries in any event, however, the rule is not satisfied so as to relieve the utility from liability unless and until it is shown that the company has exercised the highest degree of care to prevent the danger.

Mississippi Power Co. v. Luter, 336 So.2d 753, 756 (Miss.1976) (emphasis added).

¶ 12. The evidence is undisputed that the line with which McFarland came into contact was a very strong transmission line hanging only six to eight feet above North Main Street just outside the Leland city limits. The impact knocked McFarland's eleven-ton truck backwards, tore the driver's seat from its socket, and threw McFarland into the sleeping compartment of the vehicle where he was in severe pain and coughing up blood. McFarland broke five ribs, had his chest caved in on the right side and his teeth shaved off in the front. He was hospitalized for ten days, had surgery to repair broken bones in his wrist and required seven months of physical therapy.

¶ 13. Whether the Entergy line was unreasonably dangerous at the time and place of the accident is not a question for the trial court, or this Court, to decide. In Mississippi Power & Light Co. v. Shepard, 285 So.2d 725 (Miss.1973), the Mississippi Supreme Court recognized the general rule regarding the submission of a power company's negligence to the jury to be:

The question of negligence is one for the jury to decide from the facts of each particular case, except where reasonable men may not fairly differ in their conclusions from the facts, and in determining the question of the degree of care to be exercised, it is proper for the jury to take into...