Virginia Elec. and Power Co. v. Dungee
| Citation | 258 Va. 235,520 S.E.2d 164 |
| Decision Date | 17 September 1999 |
| Docket Number | Record No. 982485. |
| Parties | VIRGINIA ELECTRIC AND POWER COMPANY v. James DUNGEE, a minor, etc. |
| Court | Supreme Court of Virginia |
Robert F. Brooks, Sr. (John Charles Thomas; Robert R. Merhige, Jr.; Cassandra C. Collins; Andrew R. Park; Hunton & Williams, on briefs), Richmond, for appellant.
Jeffrey A. Breit (Michael F. Imprevento; John L. Watts, Norfolk; A. Donald McEachin; Donald J. Gee; Charlotte P. Hodges, Richmond; Breit, Drescher & Breit, Norfolk; McEachin & Gee, Richmond, on brief), for appellee.
Present: All the Justices.
James A. Dungee, a minor (James or the plaintiff), by his next friend, filed a motion for judgment against Virginia Electric and Power Company (Virginia Power) seeking damages for burns he sustained while he was in a Virginia Power substation and came in contact with 13,200 volts of electricity. James alleged that Virginia Power was negligent in failing to properly install, maintain, and inspect the fence surrounding the substation. Virginia Power denied that it was negligent and asserted the affirmative defenses of contributory negligence and assumption of risk. A jury returned a verdict in favor of James in the amount of $20,000,000. The trial court denied Virginia Power's motion to set aside the verdict or order remittitur and entered judgment on the jury's verdict. Virginia Power filed an appeal assigning error to a number of rulings of the trial court. Because we find no error in these rulings, we will affirm the judgment of the trial court.
At the time of the accident, James was a 10-year-old boy who had just completed the fourth grade. According to the testimony of Ella Langford, a clinical social worker, and Dr. Thomas K. Tsao, a child psychiatrist, James suffered from attention deficit hyperactivity disorder (ADHD). Langford testified that ADHD is characterized by impulsivity, inattention, distractibility, and hyperactivity. She also testified that at the time of the accident, James was in the childhood development stage commonly referred to as "latency," which she described as the stage when children learn to make decisions about their safety and cease to need to be watched constantly by their parents. She testified that the latency stage is influenced by ADHD because teachers' and parents' instructions to the child concerning limitations on what he should or should not do often do not register in the child's mind.
Dr. Tsao testified that James had above average intelligence but that his intelligence, as well as his perception, maturity, and judgment were impaired by ADHD.
James lived in an apartment complex in the City of Richmond. Next to the outdoor common area for the complex was an electric substation owned and operated by Virginia Power. The substation was surrounded by a chain-link fence approximately six-feet high and topped with a one-foot extension of three strands of barbed wire. The gate to the fence was locked at all times. Signs on the fence stated "Danger High Voltage." Earl Maxwell, a resident of the apartment complex, testified that in the year prior to the accident, he had observed no warning signs on any of the equipment inside the substation. He testified that, on the side of the substation facing the apartment complex, there were two or three "gaps" or holes under the fence which were large enough for a child to crawl through.
Over a month before the accident, Captain Timothy Zack, an officer in the United States Army who lived in an apartment overlooking the substation, told a Virginia Power employee working at the substation that he had seen children playing in the substation. Captain Zack also showed the Virginia Power employee one of the holes or gaps under the fence and warned that "somebody is going to get injured."
A Virginia Power substation inspector, Edwin Lee Thompson, testified that he inspected the substation two weeks before the accident. He saw "kids and stuff' around the substation and gaps between the bottom of the fence and the ground on the side of the substation facing the apartment complex. Thompson, however, did not report the holes and testified that they were not large enough for a "person" to get through.
On July 21, 1996, James and two of his friends, Ken McMickens and Kevin Clayton Adams, Jr., were playing with a ball in the common area. Ken and Kevin were 9 and 11 years old, respectively. While they were playing, the ball went over the fence surrounding the substation. There is conflicting testimony as to what occurred after that.
James testified that he crawled under the fence at one of the holes or gaps between the bottom of the fence and the ground while Kevin helped him by holding the fence up. Kevin testified that James entered the substation by climbing on top of a green cable box near the fence, placing his hands and one foot on the fence and "leap[ing]" over the top. According to Ken, James did not use the green cable box, but climbed up the fence using his hands and feet, stood on the barbed wire, and then jumped down. Captain Zack was working on his car nearby at the time of the accident. He testified that he saw a boy climb under the fence as another boy moved the fence "back and forth."
James testified that he does not remember what he did once he entered the substation. Ken testified that James "started touching wires and he went over to the power surge and he touched—he climbed on something and touched something, and we seen a bright light and he was laying on the ground." Kevin testified that James touched some wires that did not affect him but then went and touched another wire, whereupon it "started electrocuting him with one hand, and he tried to pull it off."
Ken testified that he told James not to enter the substation because he could get electrocuted, and that once inside the substation James asked, "`You all dare me to touch this wire over here[?]'"
Kevin first testified that he said nothing to James before James entered the substation and that James did not suggest a dare to anyone. He testified that the only conversation he had with James occurred when he told James that he "might get hurt" when James was about to touch "some high voltage [wires]," to which James replied, "`No, you're lying.'" Later, after having been read testimony from his deposition, Kevin agreed that, prior to James' entering the substation, he told James to "`Hurry up and get out'" and that, once inside, James said, "`You dare me to touch the wires?'" Kevin further agreed that after James first touched the wires and was not hurt, James said, "`I'm going to touch that one,'" to which Kevin replied, "`No, James, it's going to electrocute you,'" to which James responded, according to Kevin, "`No, man, you don't know what you're talking about.'"
Captain Zack testified that he could hear what the children were saying, and that he did not hear any of the children give any warnings or any child asking to be dared to do anything.
Kevin's father, Kevin Clayton Adams, Sr., testified that he heard a loud bang and saw a puff of smoke inside the substation. He climbed the substation's gate and ran to James' body. He testified that James' eyes and hair were burnt, that his shoes were just about melted, and that skin fell off of James' body onto Mr. Adams' clothes as he carried James out of the substation. He testified that James was conscious and began screaming before he set him down.
James received third degree burns over 25% of his body including his face, chest, and arms. He was treated at no charge at the Shriners Hospital. Surgical procedures to restore skin lost as a result of the accident have left permanent scarring and disfigurement and will require future surgical procedures and extensive physical and psychological therapy.
In the motion for judgment, James alleged that Virginia Power, as a producer of electricity, owed a high degree of care for the safety of those persons coming into contact with the substation. The motion for judgment also alleged that Virginia Power had actual or constructive knowledge that children regularly played in or around the substation, and that Virginia Power negligently erected, maintained, and inspected the fence in violation of its duty of care and in violation of recognized industry standards. James sought $750,000,000 in compensatory damages and $750,000,000 in punitive damages but later dropped the punitive damage claim.
The motion for judgment was filed in Charles City County. Virginia Power filed a motion to transfer venue to the City of Richmond, which the trial court denied. During a five-day trial, the jury heard the testimony of twenty witnesses and returned a verdict in favor of James. Virginia Power appealed assigning error to a number of the trial court's rulings, including the denial of Virginia Power's motion for a change of venue, refusal to find the plaintiff contributorily negligent as a matter of law, refusal to give Virginia Power's offered jury instruction on the duty owed to a trespasser, the inclusion of the term "maturity" in jury instructions on contributory negligence, refusal to allow certain expert testimony, and refusal to set aside the verdict or award Virginia Power remittitur. We consider these issues in order.
Virginia Power first assigns error to the trial court's denial of its motion to transfer the action from Charles City County to the City of Richmond. Virginia Power contends that although Charles City County is a permissible venue under Code § 8.01-262(3) because it conducts business there, application of the principles set out in Norfolk & Western Railway Co. v. Williams, 239 Va. 390, 389 S.E.2d 714 (1990), required that the action be transferred because Charles City County has no practical nexus with the litigation. We disagree.
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