Whaley v. White Consolidated Industries

• Decision Date: 05 June 2001
• Docket Number: No. COA00-630.,COA00-630.
• Citation: 548 S.E.2d 177,144 NC App. 88
• Court: North Carolina Court of Appeals
• Parties: Horace Leon WHALEY and Rosalind Bailey Whaley, Plaintiffs, v. WHITE CONSOLIDATED INDUSTRIES, INC., t/b/a Frigidaire, Defendant.

548 S.E.2d 177

144 NC App. 88

Horace Leon WHALEY and Rosalind Bailey Whaley, Plaintiffs, v. WHITE CONSOLIDATED INDUSTRIES, INC., t/b/a Frigidaire, Defendant.

No. COA00-630.

Court of Appeals of North Carolina.

June 5, 2001.

Moore & Van Allen, PLLC, by Lewis A. Cheek and Michael A. DeFranco, Durham, for plaintiff-appellees.

Mayer, Brown & Platt, by Robert B. Cordle and Mary K. Mandevilla, Charlotte; Walker, Clark, Allen, Herrin & Morano, L.L.P., by Jerry A. Allen, Jr., Goldsboro, for defendant-appellant.

MARTIN, Judge.

Plaintiffs brought this action to recover damages for personal injuries to Horace Leon Whaley (hereinafter "Whaley") and loss of consortium by Rosalind Bailey Whaley following Whaley's injury by an electric shock sustained at defendant's manufacturing plant in Kinston, North Carolina. Plaintiffs alleged, inter alia, that Whaley's injuries were caused by negligence on the part of defendant White Consolidated Industries, Inc. (hereinafter "defendant White") and its employee, Bobby Patton. Defendant White filed its answer, denying negligence and asserting, as affirmative defenses, negligence on the part of Whaley and on the part of his employer, E & R, Inc., and co-worker, Hugh Sutton.

Briefly summarized to the extent necessary to an understanding of the issues raised on appeal, the evidence presented at trial tended to show that defendant White contracted to expand its plant to enable it to produce dishwasher racks. The expansion required the installation of electrical equipment, including substations, which would deliver power to the industrial equipment. R.N. Rouse & Co. ("Rouse") served as the general contractor for the expansion project; Rouse subcontracted all electrical work to Triple R Electric, which in turn hired E & R, Inc., Whaley's employer, to perform the high voltage electrical work. E & R's responsibilities included the assembly and installation of three substations, the installation of the high voltage cables to the HVL switch, and the connection of the high voltage cables from the switch to the new substations. The target date for completion of the job was Thanksgiving weekend 1995. Because certain substation equipment was not delivered on time, E & R could not finish its work by this date. Although the equipment was not fully assembled and thus not ready for operation, the evidence showed that Bobby Patton, defendant's manufacturing engineer and expansion project liaison, made the decision to move ahead with the original plan to energize the high voltage cable over the Thanksgiving weekend. Energizing the cable in turn energized the unfinished substations. William Hardy Rouse, Jr., Vice President of Triple-R Electric, testified that "anything to do with electricity, especially turning the circuits on and energizing equipment, is under our jurisdiction." Once the cable and substations were energized, Patton padlocked the HVL switch handles. Nevertheless, Patton did not "tag" the equipment. Certified Safety Professional Raymond Boylston testified that, according to OSHA standards, a danger tag must be placed on any piece of energized equipment "anytime you lock out a power circuit for electrical safety." Patton also did not barricade the area. Although Patton testified that he warned several people that the cable would be energized, including Whaley and his co-worker, Sutton, all these people testified that they were not warned. The equipment E & R needed to complete work on the substations arrived in early December, and Whaley and Sutton returned to finish the job on 14 December 1995. Patton testified that he knew the men would be working on the substations, but believed they would be working on the distribution panels and not in the cabinet containing the HVL switch. Shortly after starting work, while reaching inside the cabinet to insert a bolt, Whaley leaned against an energized metal bar and incurred a severe electric shock. He suffered serious burns and remained in the Burn Center at UNC Hospitals until 22 January 1996; he also lost most of the function in his right arm.

Defendant's motion for directed verdict at the close of all the evidence was denied. The jury returned a verdict finding defendant White negligent, that such conduct was willful and wanton, and that neither Whaley nor his employer was negligent. The jury awarded plaintiffs $1.27 million in compensatory damages and $2.1 million in punitive damages. Defendant's post-trial motions for judgment notwithstanding the verdict and, in the alternative, for a new trial, were denied. Defendant appeals.

I.

Assigning error to the denial of its motions for directed verdict, judgment notwithstanding the verdict, and, alternatively, a new trial, as to plaintiffs' claim for punitive damages, defendant White argues there was insufficient evidence to support a finding that the conduct of its employee, Patton, was willful or wanton. We disagree.

A motion for directed verdict pursuant to G.S. § 1A-1, Rule 50(a) tests the sufficiency of the evidence to support a verdict for the non-moving party. Manganello v. Permastone, Inc., 291 N.C. 666, 231 S.E.2d 678 (1977). A motion for judgment notwithstanding the verdict pursuant to G.S. § 1A-1, Rule 50(b) is essentially a renewal of an earlier motion for directed verdict. Bryant v. Nationwide Mutual Fire Ins. Co., 313 N.C. 362, 329 S.E.2d 333 (1985). The same test is applied when ruling on either motion. Id. On a defendant's motion for a directed verdict or judgment notwithstanding the verdict, the plaintiff's evidence must be taken as true and considered in the light most favorable to him, and the motion should be denied only if, as a matter of law, such evidence is insufficient to justify a verdict for the plaintiff. Dickinson v. Pake, 284 N.C. 576, 201 S.E.2d 897 (1974).

In considering any motion for directed verdict, the trial court must view all the evidence that supports the non-movant's claim as being true and that evidence must be considered in the light most favorable to the non-movant, giving to the non-movant the benefit of every reasonable inference that may legitimately be drawn from the evidence with contradictions, conflicts, and inconsistencies being resolved in the non-movant's favor.

Bryant at 369, 329 S.E.2d at 337-38 (citation omitted).

While a motion for directed verdict or judgment notwithstanding the verdict raises an issue of law, a motion for a new trial pursuant to G.S. § 1A-1, Rule 59 is addressed to the trial court's discretion. Bryant, supra.

In this case, defendant White assigns error to the denial of its motion for a new trial made upon the grounds contained in Rule 59(a)(7): "Insufficiency of the evidence to justify the verdict or that the verdict is contrary to law." A motion made upon such grounds authorizes the trial court to appraise the evidence and to grant a new trial if, in the opinion of the court, the verdict is contrary to the greater weight of the credible evidence. In re Will of Buck, 350 N.C. 621, 628, 516 S.E.2d 858, 863 (1999). Appellate review of a trial court's ruling on a Rule 59(a)(7) motion raises no question of law, but presents only the question of whether the record affirmatively demonstrates an abuse of discretion, i.e., a probable "`substantial miscarriage of justice'", by the trial judge. Id. at 625, 516 S.E.2d at 861 (citations omitted).

To support an award of punitive damages, plaintiff must show that defendant's conduct went beyond negligence and was "`done willfully or under circumstances of rudeness or oppression, or in a manner which evinces a reckless and wanton disregard of plaintiff's rights.'" Beck v. Carolina Power & Light Co., 57 N.C.App. 373, 383, 291 S.E.2d 897, 903, affirmed, 307 N.C. 267, 297 S.E.2d 397 (1982) (citation omitted). Punitive damages may be awarded only when

the defendant commits the actionable legal wrong willfully (i.e., knowingly, intentionally and voluntarily), wantonly (i.e., in conscious and intentional disregard of and indifference to the rights and safety of the plaintiff), or maliciously (i.e., motivated by personal hatred, ill will or spite for the plaintiff).

Hornby v. Pennsylvania Nat'l. Mut. Cas. Ins. Co., 77 N.C.App. 475, 481, 335 S.E.2d 335, 339 (1985), disc. review denied, 316 N.C. 193, 341 S.E.2d 570 (1986) (citation omitted). "`An act is wanton when it is done of wicked purpose or when done needlessly, manifesting a reckless indifference to the rights of others.'" Siders v. Gibbs, 39 N.C.App. 183, 187, 249 S.E.2d 858, 861 (1978) (citation omitted).

In the present case, Patton, acting as liaison for defendant White, made the decision to energize the high voltage cable over Thanksgiving weekend 1995, in spite of the fact that the substations lacked necessary equipment and were not operational. Patton energized the cable, which in turn energized the substations, knowing employees from E & R still had work to perform on the substations. Patton testified that he believed plaintiff and Sutton were aware the line was energized; he also claimed to have told three other people involved in the project that the line was energized, but those people testified that they were never warned. Although Patton padlocked the HVL switch handles, these locks did not prevent exposure to potentially deadly electrical currents for those working inside the cabinet. Finally, Patton did not "tag" the substations, as OSHA standards require, to notify other workers that the equipment was energized. Taken in a light most favorable to plaintiff, the evidence presented was sufficient to go to the jury on the question of whether Patton's behavior demonstrated a reckless indifference for the rights of others. Furthermore, in light of such evidence, we cannot say the trial court's discretionary ruling denying defendant White's alternative motion for a new trial pursuant to Rule 59(a)(7) on the issue of punitive damages amounted to a miscarriage of justice or an abuse of discretion. See In re Will of...