Miller v. Monongahela Power Co., 19640

Decision Date07 February 1991
Docket NumberNo. 19640,19640
CourtWest Virginia Supreme Court
Parties, Util. L. Rep. P 26,060 Charles R. MILLER v. MONONGAHELA POWER COMPANY.

4. "In order to obtain a proper assessment of the total amount of the plaintiff's contributory negligence under our comparative negligence rule, it must be ascertained in relation to all of the parties whose negligence contributed to the accident, and not merely those defendants involved in the litigation." Syl. Pt. 3, Bowman v. Barnes, 168 W.Va. 111, 282 S.E.2d 613 (1981).

5. The combination of: (1) West Virginia's system of comparative negligence; (2) West Virginia's rules on joint and several liability; and, (3) West Virginia's statutory workers' compensation immunity does not violate federal due process and equal protection principles.

6. A trial court is afforded wide discretion in determining the admissibility of photographic evidence.

7. We will not, in every case, refrain from sorting out errors involving prejudgment interest, but when the defendant fails to submit a special jury interrogatory asking the jury to set forth special or liquidated damages, this Court's attention to such errors is entirely a matter of grace and if the subject is deliberately obfuscated by counsel or error is invited, this Court will summarily dismiss the assignment.

Carl N. Frankovitch, Frankovitch & Anetakis, Weirton, W.Va., for Charles R. Miller.

John B. Garden, Jeffrey A. Holmstrand, Bachmann, Hess, Bachmann & Garden, Wheeling, W.Va., for Monongahela Power Co.

Neely, Justice:

In 1970 the Homer Laughlin China Company, located in Hancock County, West Virginia granted a perpetual easement to Monongahela Power Company over approximately 3,600 square feet at its plant. The easement entitled Monongahela Power Company to construct a substation to supply Homer Laughlin with electricity. In 1971 Monongahela Power completed construction of the substation and put it in service. The purpose of the substation was to convert 25,000 volt incoming current to 2,400 volt outgoing current that could be used by Homer Laughlin.

Around Homer Laughlin's plant site, however, there were also located seven other substations that belonged to Homer Laughlin. These brick substations housed transformers that were used to convert Monongahela's 2,400 volt power to even lower voltages used in Homer Laughlin's plant itself. These substations carried no signs or other markings identifying them as Homer Laughlin's property, and Monongahela's substation contained no signs or markings identifying it as the power company's property.

The plaintiff in this case, Charles R. Miller, was hired by Homer Laughlin in 1978 as an "electrician." Mr. Miller was given a general orientation tour of the plant but was never instructed by Homer Laughlin concerning the location of its seven substations. At trial, Mr. Miller's supervisor testified that although the supervisor usually gave an orientation tour to new employees

[184 W.Va. 666] in the electrical department during which he would point out the various substations, he did not specifically recall doing so when the plaintiff came to work

Roughly five months after plaintiff was hired, plaintiff's supervisor instructed him to use an amp probe or ammeter to check the voltage on the "low side" of the transformer located in the Homer Laughlin No. 5 substation--the key to which hung inside one of Homer Laughlin's maintenance buildings. Plaintiff had never before performed this task, had never seen the No. 5 substation, and had never used the equipment needed to perform the test. Instead of going to the Homer Laughlin substation, plaintiff and a co-worker went to Monongahela Power's substation where they attempted to enter. But, as one might expect, the key to Homer Laughlin's substation would not open the padlock on the Monongahela Power substation. At this point, the plaintiff returned to his supervisor for further instruction.

Plaintiff's supervisor told the plaintiff over the telephone to try two other keys in the lock and, if these keys did not work, to use bolt cutters to remove the lock from the door. The plaintiff and his co-worker returned to the wrong substation (Monongahela's), unsuccessfully tried the additional keys, and then cut the padlock on the fence's gate in order to enter. Unlike the substation operated by Homer Laughlin, the Monongahela Power substation was not housed in a building, but rather was surrounded by a chain link fence which had a warning sign that read: "DANGER--KEEP AWAY." The gate to the fence was locked with Monongahela's padlock to which Homer Laughlin, of course, did not have a key.

Plaintiff had never worked around electricity at voltages higher than those typically found in a private house. Despite having no experience with high voltage electricity, plaintiff nonetheless attempted to climb a metal structure located within the substation. But instead of checking the "low" side of the substation, plaintiff climbed near the "high" side of the substation, which at the time was energized to 14,400 volts. When plaintiff came into contact with the energized line, approximately 12 to 15 feet above the ground, he received a severe electrical shock that ultimately required the amputation of his right arm. Plaintiff then sued both the Monongahela Power Company and his employer, Homer Laughlin.

Plaintiff's complaint against Monongahela Power contained two different theories of liability. First, plaintiff asserted a products liability claim against Monongahela Power alleging defective design and construction of the substation. Second, plaintiff claimed that the substation was:

"negligently and carelessly designed, manufactured, and installed by the defendant in numerous respects, including, but not limited to the absence of adequate warning signs and indicators to prevent an individual from inadvertently entering said 'substation' and coming into contact with energized portions thereof."

(Complaint, p. 2.)

Ultimately the trial court dismissed Homer Laughlin as a defendant because of employer's immunity under Worker's Compensation and held that plaintiff failed to state a claim for relief against the power company on his products liability theory. The case then went to trial on a simple negligence theory under which the plaintiff was allowed to prove that Monongahela had "induced" him to enter the substation by its failure to post signs identifying the substation as one owned by Monongahela Power.

Trial began on 19 June 1989, at which time the lower court granted the plaintiff's motion in limine and prohibited Monongahela from offering evidence or arguments concerning Homer Laughlin's role in causing the accident. The lower court allowed plaintiff and his co-employee to testify, over objection, that they would not have entered Monongahela Power's substation if it had been equipped with an identifying sign. At the conclusion of the trial, the Court instructed the jury, consistent with its ruling on the plaintiff's motion in limine, and over objection, that the jury

[184 W.Va. 667] could not consider the possible fault of Homer Laughlin China Company or any other party as a factor in its deliberations

Thus instructed, the jury returned a verdict in favor of the plaintiff for $1,200,000 for the loss of his arm. The jury apportioned negligence in the amount of 10 percent to the plaintiff and 90 percent to the Power Company. Counsel for the plaintiff prepared a judgment order awarding plaintiff $1,080,000, which the trial court entered on 26 June 1989. That judgment order expressly included an award of postjudgment interest, but did not include any award of prejudgment interest. The Power Company filed a timely motion for judgment notwithstanding the verdict or, in the alternative, for new trial on 5 July 1989. On 22 August 1989, the trial court denied the defendant's motion.

On 1 September 1989, plaintiff served a "Motion for Order Nunc Pro Tunc Pursuant to Rule 60(a)" citing this Court's decision in Grove ex rel. Grove v. Myers, 181 W.Va. 342, 382 S.E.2d 536 (1989), and sought to revise the trial court's judgment order to include an award of prejudgment interest on the entire amount of the verdict in the amount of $1,116,720. This figure represented interest at 10 percent from the date of injury, including even that portion of the verdict representing economic loss as to which interest had already had been included in plaintiff's expert's testimony. Plaintiff's counsel candidly admitted to the trial court that the parties had stipulated medical damages and plaintiff's economist had already included prejudgment interest in his testimony. Nonetheless, the trial court, without opinion, entered the form order that had been submitted by plaintiff's counsel with the motion. Defendant then appealed to this Court.

I

Monongahela is outraged because it was held liable notwithstanding that West Virginia recognizes the common law distinctions among trespassers, licensees, and invitees. 1 In Syllabus Point 1 of Morgan v. Price, 151 W.Va. 158, 150 S.E.2d 897 (1966), we said:

"A person is an invitee when for...

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