Ward v. City of Lebanon

• Citation: 273 S.W.3d 628
• Decision Date: 25 April 2008
• Docket Number: No. M2006-02520-COA-R3-CV.,M2006-02520-COA-R3-CV.
• Court: Court of Appeals of Tennessee
• Parties: Robert A. WARD and wife, Sally Ward, v. CITY OF LEBANON, Tennessee; City of Lebanon Gas Department; James N. Bush Construction, Inc.; Foster Engineering & Energy, Inc.; and Water Management Services, LLC.

273 S.W.3d 628

Robert A. WARD and wife, Sally Ward, v. CITY OF LEBANON, Tennessee; City of Lebanon Gas Department; James N. Bush Construction, Inc.; Foster Engineering & Energy, Inc.; and Water Management Services, LLC.

No. M2006-02520-COA-R3-CV.

Court of Appeals of Tennessee, Middle Section, at Nashville.

December 11, 2007 Session.

April 25, 2008.

Permission to Appeal Denied by Supreme Court October 27, 2008.

Robyn Beale Williams, Nashville, Tennessee, for appellant, City of Lebanon. James C. Wright and Edward U. Babb, Knoxville, Tennessee, for appellant, James N. Bush Construction, Inc.

Jack O. Bellar and Jamie D. Winkler, Carthage, Tennessee, for appellees, Robert A. Ward and Sally Ward.

Robert H. Watson, Jr., and Hanson R. Tipton, Knoxville, Tennessee, for Amicus Curiae Tennessee Municipal League Risk Management Pool. C. Dewey Branstetter, Jr., Nashville, Tennessee for Amicus Curiae Tennessee One Call System, Inc.

OPINION

HERSCHEL PICKENS FRANKS, P.J., delivered the opinion of the Court, in which ANDY BENNETT, J., and JON KERRY BLACKWOOD, SR. J., joined.

Plaintiff, while excavating, struck a gas line which resulted in an explosion and fire, seriously injuring plaintiff. Plaintiffs brought this action against several defendants and the case went to trial against the City of Lebanon and Bush Construction Company, Inc. A jury returned a verdict for the plaintiffs and allocated percentages of fault as to both defendants and the plaintiff. The Trial Court entered Judgment in favor of the plaintiffs and defendants appealed. We reverse the Trial Court Judgment and remand for a new trial on the grounds that a part of the charge to the jury was erroneous.

Plaintiffs, Robert and Sally Ward, brought this action against the City of Lebanon, City of Lebanon Gas Department, Bush Construction, Inc., and Water Management, Inc., and alleged that on June 12, 2003, Ward was operating a track hoe in the course of his employment on Main Street near Bay Court in Lebanon. Plaintiffs alleged that his employer had been contracted to install subterranean water lines under Main Street, and that Bush had contracted to install subterranean natural gas lines.

Plaintiffs alleged that in April 2003, his employer had dug a trench at the same location, and Bush, the City and the Gas Department had disconnected and cut a section of the gas line, and capped it at both ends, and that the trench was then filled. Further, that the gas line was later repair/replaced, without the knowledge of plaintiff or his employer. Further, that on June 12, 2003, he returned to the site and began digging a trench to install the water lines, when he struck the gas line, which resulted in an explosion and fire, causing him serious personal injuries.

Plaintiffs allege that defendants were reckless in replacing the gas line and failing to warn him or others that the gas line was in service, in failing to place markings or designations noting the presence of the gas line. Further, that defendants had violated the Pipeline Safety Improvement Act, 49 U.S.C. § 60101 et seq, and the Underground Utility Damage Prevention Law, Tenn.Code Ann. § 65-31-101 et seq.

After the remaining defendants were either non-suited or dismissed, the case went to trial as to the City of Lebanon and Bush Construction Company. After the trial, the Trial Judge entered an Order and Judgment stating that the jury had returned a unanimous verdict in favor of plaintiffs and had found the City of Lebanon and James N. Bush Construction Company were negligent, and that the jury attributed 30% of the fault for the accident to Ward, 40% to the City and 30% to Bush. The Court found that the jury awarded damages of $750,000.00 to Mr. Ward and $30,000.00 to Ms. Ward, plus the Court ordered Bush to pay $234,000.00 and ordered the City to pay $250,000.00 pursuant to the statutory limits.

The City filed a Motion to Set Aside the Verdict and to have Judgment Entered Notwithstanding the Verdict, or Alternatively for a New Trial, alleging that the Court failed to direct a verdict for the City; in charging the jury with language from South Central Bell v. Jones Bros. Contractors, Inc., and in reading only a portion of the language after the jury returned with a question; in allowing the testimony of Leighton Sissom to be introduced at trial; and other grounds. Bush also filed a Motion to Have the Jury Verdict Set Aside, or Alternatively for New Trial, and inter alia argued that the Court erred in charging the jury with language from the South Central Bell case, and allowing Sissom to testify. The Trial Court denied the Motions and affirmed the previous judgment. This appeal ensued.

Numerous issues were raised on appeal, as follows:

1. Whether the Trial Court erred in failing to direct the verdict in favor of the City of Lebanon on all claims?

2. Whether the Trial Court erred in charging the jury with language from South Central Bell v. Jones Bros. Contractors, Inc., and in reading only a portion of the language after the jury returned with a question?

3. Whether the Trial Court erred in allowing the testimony of Leighton Sissom, M.E. to be introduced at trial?

4. Whether the Trial Court erred in failing to charge the jury using language from South Central Bell v. Jones Bros. Contractors, Inc.?

5. Whether the Trial Court erred in denying the City's post-judgment motion?

6. Whether the Trial Court erred in awarding discretionary costs to plaintiffs?

7. Whether Bush had a legal duty to warn Ward of re-connection of an underground gas line since Ward failed to comply with the notice requirements of the Tennessee Underground Utility Damage Prevention Act (Tenn.Code Ann. § 65-31-101 et seq.), also known as the one-call statute?

8. Whether the Trial Court erred in instructing the jury regarding Ward's duties under the one-call statute?

9. Whether Ward's violation of the one-call statute and his own negligence in igniting the natural gas were the proximate cause of his injuries as a matter of law?

10. Whether Ward's violation of the one-call statute and his own negligence in igniting the natural gas made him at least fifty percent at fault for his injuries?

Some of the issues raised on appeal overlap, and will be addressed in concert, as appropriate.

Both defendants argue that the Wards' claims were largely centered around defendants' failure to tell Ward that the subject gas line had been re-connected, when they knew that he would be doing further work at the site. This issue is interwoven with the provisions of the UUDPA and the question of whether Ward violated the Act.

The Underground Utility Damage Prevention Act (also known as the Tennessee One-Call statute), codified at Tenn.Code Ann. § 65-31-101 et seq., states that "no person may excavate in a street, highway, public space, a private easement of an operator or within one hundred feet (100') of the edge of the pavement of a street or highway, or demolish a building, without giving the notice required by § 65-31-106 in the manner provided by such section." Tenn.Code Ann. § 65-31-106 states that before beginning any excavation, a person shall serve written or telephonic notice of intent to excavate at least three working days prior to the actual date of excavation, and that if 15 calendar days expire and the excavation is not complete, then the person shall serve an additional notice at least three working days prior to the expiration of time on the fifteenth day.

There is no dispute in this case that Ward did not comply with the provisions of the One-Call statute.

Plaintiffs counter that the case of South Central Bell Telephone Co. v. Jones Bros. Contractors, Inc., 805 S.W.2d 749 (Tenn. 1991), holds that the provisions of the UUDPA do not apply to an excavator who has prior knowledge of the location of underground utilities in the area to be excavated. The Trial Court agreed, and charged the jury as follows:

Before beginning any excavation operation, each person responsible for such excavation shall serve written or telephonic notice of intent to excavate at least 3 working days prior to the actual date of excavation but not more than 10 full working days prior to such time, unless a different period has been agreed to, or in writing, by the person responsible for the excavation and the operation or designated representative.

Such a period of time of 15 calendar days from the actual date specified to start excavation expire without the excavation or demolition being completed, then the person responsible for such excavation shall serve an additional written or telephonic notice of intent to excavate or demolish at least 3 working days prior to the expiration of time on the 15th calendar day.

* * *

The Underground Utility Damage Prevention Act was intended for situations in which a contractor or excavator proposed to excavate in an area where he had no prior knowledge of the location of underground utilities that would be affected by the proposed excavation.

As I instructed you just a moment ago, the Underground Utility Damage Prevention Act and Tennessee law was intended for situations in which a contractor or excavator proposed to excavate in an area where he had no prior knowledge of the location of underground utilities that would be affected by the proposed excavation.

However, I just mentioned there's a provision under Tennessee law that if a project excavation is not completed within 15 calendar days of the actual date specified to start excavation, then the person responsible for the excavation shall serve additional notice of intent to excavate at least 3 days prior to the expirations of the 15th calendar day.

As part of your determination of fault, you must determine from the facts of this case whether or not Mr. Ward was required to give additional notice or not since he allegedly had prior knowledge of the location of the natural gas line and what, if any, fault you may assign to him.

The Trial Court based a...