Ware v. Entergy Mississippi, Inc.

• Decision Date: 31 December 2003
• Docket Number: No. 2002-IA-00858-SCT.,2002-IA-00858-SCT.
• Citation: 887 So.2d 763
• Parties: John H. WARE, Individually, and on Behalf of Others v. ENTERGY MISSISSIPPI, INC.
• Court: Mississippi Supreme Court

887 So.2d 763

John H. WARE, Individually, and on Behalf of Others v. ENTERGY MISSISSIPPI, INC.

No. 2002-IA-00858-SCT.

Supreme Court of Mississippi.

December 31, 2003.

Rehearing Denied April 1, 2004.

John E. Mulhearn, Jr., Natchez, Bryan Howard Callaway, Greenwood, attorneys for appellant.

Charles Edwin Ross, Natie P. Caraway, William B. Lovett, James W. Snider, Jr., Jackson, attorneys for appellee.

EN BANC.

CARLSON, Justice, for the Court.

¶ 1. This wrongful death electrocution case comes to us via an interlocutory appeal which was granted by order of this Court on petition of John H. Ware (Ware), individually and on behalf of others. The trial court was presented with several motions in limine. We granted Ware's M.R.A.P. 5 petition which was filed pursuant to the granting of two of those motions in limine in favor of Entergy Mississippi, Inc. by the Circuit Court of Adams County. As a result of the granting of the first motion, the jury will be instructed to allocate fault to the immune employer of Ware's decedent even though it has been dismissed from the lawsuit. The granting of the second motion prevents the introduction of any testimony or evidence related to the question of whether Entergy should have, or could have, placed the high voltage power line underground. Ware asserts that intertwined with this second issue is the question of the admissibility of an Entergy internal memorandum which by reference would be included in the trial court's granting of the second motion in limine. We affirm the trial court's grant of the motion in limine related to the employer; however, we reverse and remand as to the trial court's grant of the motion in limine relating to presentation of evidence concerning the utility company's duty of care.

FACTS AND PROCEEDINGS IN THE TRIAL COURT

¶ 2. On February 7, 1997, Glinnis Marsaw was electrocuted while in the employ of Jack Dallas, Inc. (Dallas), an electrical contractor. The pertinent facts leading up to this tragic event follow.

¶ 3. Approximately one week prior to this fatal accident, a construction crew, while installing an underground telephone line, inadvertently severed an underground electrical line owned by the Mississippi Department of Transportation (MDOT). This MDOT-owned underground electrical line supplied electricity to MDOT-owned streetlights which lined U.S. Highway 84 leading to the Natchez-Vidalia bridge spanning the Mississippi River. This MDOT lighting system had been put in place prior to 1988. Entergy owned an overhead power line which had been installed in 1996, and this power line supplied electricity only to the streetlights located on the Mississippi River bridge. MDOT had approved the placement of the Entergy power line, and Entergy followed the then-applicable provisions of the National Electrical Safety Code (NESC) in the placement and installation of the power line. The MDOT streetlight poles and underground line ran between Entergy's overhead line and U.S. Highway 84. The MDOT streetlight poles had lights mounted on fifteen-foot lever arms which extended out over Highway 84 in the direction opposite the location of the Entergy power line. There was a distance of approximately twenty ground feet between the MDOT streetlights/underground power line and the point on the ground directly underneath Entergy's overhead power line.

¶ 4. Dallas had been hired by MDOT to repair its underground electrical wire damaged the previous week by the crew installing the underground telephone line. Entergy was unaware of the existence of the damaged MDOT power line and the presence of the Dallas crew on the scene to perform the repair work on the date of this accident. The Dallas crew commenced its work under rainy conditions. It was necessary to take down the MDOT streetlight poles to repair the MDOT underground power line and then "re-erect" the poles. Three Dallas crew members, including Marsaw, were re-erecting a light pole immediately prior to the accident. One crew member operated the boom truck arm, another crew member was holding a rope attached to the pole, and Marsaw was actually holding the base of the pole. As this three-member crew attempted to maneuver the light pole back into its proper upright position, the light pole came into contact with the energized overhead Entergy power line, causing the electrical current to pass from the Entergy line, through the MDOT pole, and through the chest, right hand and left foot of Marsaw, thus electrocuting him. ¶ 5. Plaintiff Ware, as wrongful death beneficiary of Marsaw, filed suit against Entergy, MDOT, Dallas, Deviney Construction, and BellSouth Telecommunications, Inc. The trial court granted summary judgment in favor of Dallas, under the exclusivity provision of the Mississippi Workers' Compensation Act, Miss.Code Ann. § 71-3-9. Entergy filed several motions in limine, two of which are before us today on this interlocutory appeal. In these two motions in limine, Entergy moved (1) to have the jury instructed to allocate fault to the immune employer even though it was dismissed from the lawsuit, and (2) to exclude any testimony or evidence related to whether Entergy should have, or could have, placed the high voltage power line underground. Both of those motions were granted by the trial court.

STANDARD OF REVIEW

¶ 6. The standard of review regarding the admission or exclusion of evidence is abuse of discretion. Thompson Mach. Commerce Corp. v. Wallace, 687 So.2d 149, 152 (Miss.1997). The trial court does not abuse its discretion in granting a motion in limine if the court determines that (1) the material or evidence in question will be inadmissible at trial under the rules of evidence; and (2) the mere offer, reference, or statements made during trial concerning the material will tend to prejudice the jury. Whittley v. City of Meridian, 530 So.2d 1341, 1344 (Miss.1988) (adopting the test set forth by the Kansas Supreme Court in State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979)). For questions of law, this Court's standard of review is de novo. Saliba v. Saliba, 753 So.2d 1095, 1098 (Miss.2000).

ANALYSIS

I. IN VIEW OF THIS COURT'S OPINIONS IN ACCU-FAB & CONSTRUCTION, INC. v. LADNER, 778 So.2d 766 (Miss.2001) AND MACK TRUCKS, INC. v. TACKETT, 841 So.2d 1107 (Miss.), IS IT ERROR TO PROVIDE FOR THE JURY, ON THE FORM OF THE VERDICT, TO APPORTION OR ALLOCATE FAULT WITH RESPECT TO AN IMMUNE EMPLOYER?

¶ 7. As Ware concedes in his Reply Brief, the answer to this question was definitively answered in the negative by this Court's decision in Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss.2003) (Mack Trucks II). In Mack Trucks II, we held: "[t]o the extent that Accu-Fab¹ may be construed as stating that immune parties may not be assessed fault (as opposed to liability) under § 85-5-7, therefore, that opinion is overruled." 841 So.2d at 1115 (¶ 28). The Legislature addressed this issue by a 2002 amendment to Miss.Code Ann. § 85-5-7 which states in its entirety:

Except as provided in subsection (6) of this section, in any action involving joint tort-feasors, the trier of fact shall determine the percentage of fault for each joint tort-feasor, including named parties and absent tort-feasors, without regard to whether the joint tort-feasor is immune from damages. For noneconomic damages, a defendant's liability shall be several only. For economic damages, for any defendant whose fault is determined to be less than thirty percent (30%), liability shall be several only and for any defendant whose fault is determined to be thirty percent (30%) or more, liability shall be joint and several only to the extent necessary for the person suffering injury, death or loss to recover fifty percent (50%) of his recoverable damages. Fault allocated under this subsection to an immune tort-feasor or a tort-feasor whose liability is limited by law shall not be reallocated to any other tort-feasor.

Miss.Code Ann. § 85-5-7(8) (emphasis added).² Although this amendment was not effective until January 1, 2003, after the incident involved in the case sub judice, we simply acknowledge its existence to assure the reader that the amended statute has not been overlooked. However, this amended statute has not been applied to the case before us today, nor do we by mentioning this amended statute in any way imply what position we may take when called upon in future cases to consider the appropriateness of its application.

¶ 8. On the other hand, Ware is correct in his assertion that the resolution of this issue does not enlarge Entergy's rights on the allocation of fault under Miss.Code Ann. § 45-15-13(2), which provides:

There is hereby created a right of action on behalf of any electric utility which is required to pay any sum for injury or death of any person resulting from contact with a high voltage overhead line against any person whose negligence is a proximate contributing cause of such injury or death for that portion of any non-agreed judgment for damages rendered against and paid by the electric utility and attributable to the negligence of such person, however, the electric utility may not recover any portion of such sum which is attributable to its own negligence. The right of action created hereby shall not be available against persons who comply with the provisions of this chapter, and violations of this chapter shall not be considered negligence per se but may be considered as evidence of negligence.

(emphasis added). Inasmuch as this issue has already been decided in Mack Trucks (II), the trial court was correct in granting Entergy's motion in limine relative to the allocation of fault to the immune employer.

II. DOES THE POLICY FOR THE EXTENSION OF UNDERGROUND ELECTRIC DISTRIBUTION FACILITIES SUBMITTED BY MISSISSIPPI POWER & LIGHT COMPANY (PREDECESSOR TO ENTERGY MISSISSIPPI, INC.) APPROVED BY THE MISSISSIPPI PUBLIC SERVICE COMMISSION ON AUGUST 14, 1996, PROHIBIT ENTERGY FROM INSTALLING...