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February, 2000 TranSafety, Inc. (360) 683-6276 Fax: (360) 335-6402 E-mail us |
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| (Reproduced here is a decision made in the Supreme Court of Mississippi on February 26, 1998. The case was cited as Mississippi Power & Light Company v. Leslie Lumpkin, individually and as mother and next friend of Kristen Black and came to appeal from the Hinds County Circuit Court. The words are those of the appellate court.) |
DATE OF JUDGMENT: 02/13/92
TRIAL JUDGE: HON. JAMES E. GRAVES
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
NATURE OF THE CASE: CIVIL – PERSONAL INJURY CASE
RESOLUTION(S) REVERSED AND REMANDED MOTION FOR REHEARING
FILED: 2/26/98
MANDATE ISSUED: EN BANC.
Attorney For Appellant: Natie P. Caraway
Attorney For Appellee: William Liston
The opinion of the court was delivered by: Banks, Justice, For The Court:
Here we consider the question whether a utility company may be liable for injuries
suffered by a passenger where a negligent driver strikes one of its poles in a public
right-of-way, off the traveled portion of a highway. We answer the question in the
affirmative, where a properly instructed jury finds that there was negligence in the
placement or maintenance of the pole and that such negligence proximately contributed
to the accident and injuries sustained. We overrule our prior decision in Vines v.
Southwestern Mississippi Elec. Power Ass’n, 241 Miss. 120, 129 So. 2d 396 (Miss.
1961) to the extent that it is inconsistent with the conclusion reached today. The
judgment for the plaintiffs is reversed because we conclude that the trial court
improperly excluded certain evidence. We remand for further proceedings consistent
with the principles announced today.
I.
Leslie Lumpkin filed this complaint in the Hinds County Circuit Court on February 20,
1990, on her own behalf and on behalf of Kristen Black, her daughter, against Randy
Tackett and Mississippi Power and Light Company (MP&L;). MP&L; is a Mississippi
corporation engaged in the business of the generation, manufacture, transmission,
distribution and sale of electricity within the State of Mississippi.
The complaint alleges that on November 23, 1989, at approximately 11:30 p.m., Kristen
was severely injured after coming in contact with an uninsulated electrical distribution
line installed by MP&L.; Kristen had just exited Tackett’s automobile, which had
crashed into a power pole supporting the high voltage lines. The complaint states that
as a direct and proximate result of the negligence of both Tackett and MP&L;, Kristen
was seriously and permanently injured. Tackett was charged with failing to maintain
proper control over his vehicle. Lumpkin alleged that MP&L; was negligent in failing to
design, construct, install and maintain its power distribution poles and lines in relation
to the roadway and its right-of-way so as to reasonably reduce hazard to life. Lumpkin
also contended that the placement, construction, maintenance and location of the pole
constituted a public nuisance.
MP&L; answered on March 6, 1990, and maintained that it was not negligent, nor had it
created a reasonably foreseeable hazardous condition by the placement of the utility
pole involved in this case. MP&L; claimed that Tackett had operated his vehicle while
under the influence of intoxicating beverages, and that he was therefore negligent as a
matter of law. MP&L; alleged that Kristen was negligent in failing to properly watch for
the downed power lines and for voluntarily riding in Tackett’s automobile when she was
aware that Tackett had consumed alcohol.
Trial of this case commenced on January 27, 1992. At that time, Tackett brought forth
a motion in limine to prohibit any evidence of his consumption of alcohol on the night of
the accident. The trial court granted Tackett’s motion, finding that the probative value
of the evidence was substantially outweighed by prejudice because prior to trial he
admitted that he was negligent in the operation of his vehicle. He continued to deny
that his negligence proximately caused Kristen’s injuries.
The jury returned a special verdict in which it found Kristen fifty percent at fault, MP&L;
fifty percent at fault, Tackett not at fault, and awarded damages in the amount of
$750,000.00. On February 20, 1992, MP&L; filed a motion for judgment notwithstanding
the verdict and alternatively for a new trial. The plaintiffs filed a motion for an additur in
the event the trial court granted MP&L;’s motion for a new trial on the issue of the
reformed jury verdict. However, Judge Graves denied MP&L;’s post-trial motions, and
consequently did not reach the plaintiff’s motion for an additur. MP&L; appeals the trial
court’s ruling.
II.
On the night of November 23, 1989, Tackett and several passengers were riding in
Tackett’s 1983 Ford Mustang. Among the passengers were Crystal and Heather Barry,
Shane Acy and Kristen Black. Tackett was driving the group back to Greenwood,
Mississippi, after going to Philip, Mississippi, to see where Kristen’s boyfriend lived.
Tackett realized that he was beginning to take an extremely sharp curve. He recalled
traveling at a speed of at least fifty-five miles per hour. According to Kristen, as Tackett
neared the curve on Money Road she stated, “Randy you know, there is a bad curve
up ahead.” He tried to make the curve by slowing down and moving over the center
line to the left. At that time Tackett’s brakes locked up and Tackett lost control. The
car slid off the road and severed a utility pole. He testified that he never saw the utility
pole even as the car drove through it.
After the Mustang collided with the pole and came to a stop in the field, Kristen wanted
to get out of the car because she did not know what condition the car was in at that
time. No one had been injured in the automobile accident. She stated that she was
nervous and scared as she exited the vehicle. The area was completely dark as there
were no street lights, and Kristen removed her shoes because they were sticking in the
mud. She did not know that a power pole had been knocked down, nor did she see the
downed power lines.
The next thing she remembered was lying in the ditch by the road. She did not know
what had happened, but she was cold and crying because her left arm was in severe
pain. She stated that her left arm was hurting so bad that when she tried to hold her
arm, she felt nothing but her sweater. Tackett said that it was so dark that he didn’t see
the downed electrical wire until after Kristen had been electrocuted. Tackett then
pulled her out from under the wire.
Heather Barry testified that she had also started walking toward the road with Kristen,
but stopped when she saw the wires hanging. She said “Kristen, don’t go up there.
There’s wires up there.” Kristen told her that she was just going to go up under them.
Kristen kept walking and Heather saw her bend over. Heather then heard a buzzing
noise and saw sparks and Kristen’s face light up. Kristen fell over on her back.
Heather did not notice any buzzing, crackling or any light coming from the wire prior to
Kristen’s contact with the wire.
Dr. Joe Keith Robbins was on emergency room duty at the Greenwood Leflore Hospital
on Thanksgiving Day of 1989. Kristen was brought into the emergency room shortly
after midnight. Kristen’s injuries involved third degree burns to the left wrist. Dr.
Robbins stated that her burns extended all the way into the bone and up to her
shoulder. There was very little flesh remaining around the distal forearm. Kristen,
emotionally distraught and in critical condition, was transferred by ambulance to the
Burn Center in Greenville, Mississippi.
Dr. Robert Love first saw Kristen at the Burn Center in the early morning hours of
November 24, 1989. He carried out a physical examination and determined that she
had a severe burn resulting from an electrical injury. Her injuries were very severe to
her left upper extremity, and she was also severely burned in the buttocks and the
sacral or lower back area. With regard to the injury to Kristen’s left arm, there was no
remaining muscle tissue or blood vessels. He determined that her arm was non-viable
and that amputation was necessary.
From the time of her admission to the time of her discharge, Kristen spent one month
and two days at the Burn Center. Kristen underwent four operations while she was in
the Burn Center. The first was to amputate the left arm and a portion of the shoulder
and a portion of the chest. Kristen’s second operation on November 28, 1989
consisted of a skin graft to treat the burn to the buttock area. The third surgical
procedure involved the removal of more dead muscle and a repeat of the skin graft
from the second operation. In her fourth and final operation on December 19, 1989, a
screw was inserted into the remaining portion of the bone in her upper left arm.
Mrs. Lumpkin stated that the majority of Kristen’s post-amputation pain was in the form
of phantom pain, which occurred almost every day. Phantom pain is a condition where
a patient, after amputation of an extremity, still feels pain in the extremity. In Kristen’s
case, Dr. Love said that she might continue to feel pain in her left hand even though it
has been amputated. Kristen said she still felt that pain as of the time of trial.
Kristen was fitted with an artificial limb at the Methodist Rehabilitation Center. The bill
for Dr. Love’s services in treating Kristen amounted to $6,245.00. The bills from the
Delta Medical Center totaled $54,732.90. Miscellaneous charges from the hospital
pharmacy and supply totaled $5,341.69. Mrs. Lumpkin testified that the total amount of
medical bills incurred on behalf of Kristen up to the time of trial totaled $87,007.08.
Mrs. Lumpkin had also incurred out-of-pocket expenses in the amount of $2,991.00.
Mrs. Lumpkin did not think Kristen “cared too much about life” after the accident. She
said Kristen made statements like “life is really no fun” or “life is really not worth living”
or “nobody really cares anyway” or, “what’s the point?” During treatment of Kristen, Dr.
Love consulted with Dr. Gil McVaugh, a clinical psychologist, in regard to what Dr.
Love believed to be a potential mental disorder in Kristen. She was generally
depressed. Upon being discharged from the Burn Center, Kristen returned every other
day on an outpatient basis. Kristen improved physically, but Dr. Love thought that she
deteriorated mentally.
Dr. Michael Whelan, a practicing psychologist, saw Kristen at the emergency room on
January 15, 1990, after she was found by the police because she tried to run away
from home. Dr. Whelan’s diagnosis was that Kristen was suffering from an adjustment
disorder or perhaps major depression. Dr. Whelan began seeing Kristen on a regular
basis after this incident. He learned that prior to sustaining the injury involved in this
case, she had been diagnosed with oppositional defiance disorder. She was
apparently more rebellious and more argumentative than the average teenager. In Dr.
Whelan’s opinion, the loss of her arm would exacerbate all of her pre-existing problems
such as her difficulty in expressing emotions. His diagnosis was that she had a
permanent personality disorder involving emotional scars so deep that they were going
to interfere significantly with the rest of her life. He was of the opinion that her various
psychological problems with regard to the diagnosis and her prognosis were directly
related to the injury she sustained on November 23, 1989.
Mr. Harold G. Fortenberry, a vocational rehabilitation consultant, testified that Kristen
suffered a twenty to fifty-five percent loss of wage-earning capacity as a result of the
accident.
Deputy Gibson of the Tallahatchie County Sheriff’s Department investigated the scene
around midnight on November 23, 1989. The power pole had been broken in three
pieces. At its lowest point, the power line was three or four feet off the ground. He
noticed there were no street lights or any other roadway lighting in the area where
Kristen was injured. Deputy Gibson measured eighty feet of skid marks leading to the
edge of the road. He agreed that Tackett’s automobile must have been airborne when
it struck the pole. The car came to a halt about thirty yards out into the field. Because
it was muddy, the car stopped shorter than it would have had it been dry. There were
no signs warning drivers to slow down as they approached the curve.
Mr. William Vaughn, an MP&L; senior lineman, helped build the Money Road power
line. It was a distribution line carrying eight thousand volts of electricity. The pole that
Tackett’s automobile struck supported only two wires, one carrying electricity and one
ground wire. Vaughn stated that it was company policy to recognize and report
hazardous conditions involving power lines. He was familiar with the curve on Money
Road where the accident occurred because he noticed skid marks in the curve even
before the pole was installed. A pole in the same location as the one Tackett collided
with was struck and broken when a vehicle missed the curve in Money Road and hit
the guy wire in 1984.
Vaughn stated that all the supervisors, the people in the district office, and the crews
working on Money Road knew that cars regularly ran off that portion of Money Road.
The original engineering plans for the Money Road line did not provide for placement of
a power pole where the power pole was ultimately positioned. The line crew was
unable to comply with the plans drawn by the engineer because of an obstruction,
namely an ammonia tank, and also the fact that the guy wire would have extended into
a farmer’s cotton field.
Bob Marsh stated that MP&L; never tried to predict, in determining the location of its
utility poles, where an out of control car would run off the road. He admitted that after
the similarly located utility pole was struck in 1984, MP&L; knew that cars could come in
contact with the pole. Marsh indicated that MP&L; did not attempt to relocate the pole
for the same reasons that the utility pole was positioned there in the first place, namely,
because the pole would have interfered with an ammonia tank and a cotton field.
Marcus Williams, an expert in the field of highway construction and engineering,
opined that the utility pole was unreasonably dangerous because of its location. The
curve in question was basically a flat curve that angled somewhere between sixty and
ninety degrees. He said that the curve was so sharp that people should have been
expected to fail to negotiate the curve. He said the pole was within a one-hundred-
foot danger zone where a car would travel if it failed to make the curve. Williams
further stated that following the original plans would have been a solution to this
problem. Williams also stated that the placement of this pole, including its
high-powered electric charge, was extremely dangerous and constituted a public
nuisance to the traveling public.
Yerby Hughes, an electrical engineer with four years’ experience in the design and
construction of the type of power line involved in this case, stated that the applicable
safety code for this type of construction and maintenance was the National Electrical
Safety Code (NESC). Hughes pointed out § 211 of the NESC, which stated that “all
electric supply and communication lines and equipment shall be installed and
maintained so as to reduce hazards to life as far as is practical.” He believed that
MP&L;’s placement of the pole in question was a violation of that code section.
Walter Neel, an expert in the fields of civil and traffic engineering, stated that based
upon a reasonable professional probability, the Money Road power pole involved in
this case constituted a foreseeable risk of harm to the public. Although there was a
warning sign located about 390 feet from the center of the curve, Neel said that it
falsely indicated that the curve was gentle. Neel determined that a safe speed for
maneuvering the curve would be approximately twenty-five miles per hour.
III.
MP&L; first asserts that the trial court erred in failing to grant its motion to dismiss, its
motion for summary judgment, its motion for directed verdict, its motion for peremptory
instruction, and its motion for judgment notwithstanding the verdict. It also argues that
the trial court erred in granting Jury Instruction P-4, and in failing to grant Jury
Instructions MD-15 and MD-12. Under this assignment of error we are asked to
determine whether, under any circumstances, a utility company may be held liable for
injuries sustained when an admittedly negligent driver collides with a pole constructed
for the purpose of distributing electricity, when the pole is located within the public
right-of-way off the main-traveled portion of a road.
MP&L; argues that Vines v. Southwestern Mississippi Elec. Power Ass’n, 241
Miss. 120, 129 So. 2d 396 (1961) answers the question as follows: if someone goes
off the main-traveled portion of the road, thus taking the driver out of the category of
drivers making ordinary or common use of the road, the utility company is not subject to
liability. MP&L; maintains that electric utilities are not required to place their poles in
order to insure the safety of reckless drivers. According to MP&L;, the reason it only
has a duty of reasonable foreseeability to those making a proper use of the road is
because predicting where reckless drivers such as Tackett will leave a roadway is
always unforeseeable. In other words, MP&L; suggests that it should not be charged
with the responsibility of protecting against negligent drivers who collide with a pole
that is located within the public right-of-way but off the main-traveled portion of the
road.
On the other hand, Lumpkin argues that if MP&L; knew or should have known of the
danger of the placement of this particular utility pole within the public right-of-way (as
evidenced by the number of off-road occurrences in this location including one in which
the guy wire of this pole was actually hit and the pole knocked down), MP&L; at least
had a duty to eliminate the danger to the extent practical.
Miss. Code Ann. § 11-27-43, in pertinent part, states:
This statute has remained in effect and unchanged since January 1, 1972. The pole in
question in this case was erected in 1980. Thus, MP&L; was then and is now
authorized to erect power poles for the purposes of selling and distributing electricity,
so long as (1) the NESC requirements are met; (2) there is no resulting danger to
persons or property; (3) there is no interference with the common use of roads, streets
and water; (4) there is no interference with the use of wires by other wire-using
companies; and, (5) the construction does not unnecessarily inconvenience any
landowner. Stated differently, the portion of the statute highlighted above expresses
several distinct requirements, each denoting a separate mandate. MP&L;’s argument,
relying solely on the third requirement (common use of roads), is therefore too
restrictive.
Section 20, § 211 of the 1961 edition of the NESC provides:
It follows that MP&L; has a duty to protect against hazards of which it has or should
have knowledge. This section of the NESC certainly does not limit MP&L;’s duty to
protect against and reduce only those hazards occurring on the main-traveled portion
of the roadways.
We have recognized that the violation of the minimum standards established by the
NESC constitutes negligence per se. See Gifford v. Four-County Elec. Power
Ass’n, 615 So. 2d 1166, 1173 (Miss. 1992) (failure to grant jury instruction that
violation of NESC standards constitutes negligence per se is reversible if evidence
shows violation occurred). Moreover, the second requirement of § 11-27-43, that
power poles must be constructed in such a way so as to avoid endangering people or
property, says nothing about a utility company being immune from liability when an
accident occurs upon a public right-of-way off the main-traveled portion of the road.
MP&L; argues that the facts in Vines are compellingly similar to the facts in the
present case. For all practical purposes that is so. We need not engage in any
extensive fact comparison. This matter must be resolved by determining whether the
Vines formulation remains the law of this state.
The statute extant and quoted by the Vines Court, § 2778 of the Mississippi
Code of 1942, as amended and recompiled, read as follows:
One legal distinction in these two cases is that the predecessor statute relied on by the
Court in Vines, in setting forth the requirements of power pole/line construction,
made no reference to the NESC; while, as pointed out above, the present statute, Miss.
Code Ann. § 11-27-43, which the trial court relied on in this case, fully incorporates the
requirements of the NESC. Otherwise, the statutes are essentially identical.
Lumpkin asks us to find that Vines has been overruled sub silentio, citing
Spears v. Mississippi Power & Light Co., 562 So. 2d 107 (1990). MP&L; states
that Lumpkin’s argument must fail because the Spears does not address §
11-27-43, and because Spears did not involve the location of a power pole
along a public right-of-way. It argues that, unlike Tackett, the Spears driver was
driving in an area where he unquestionably had a right to be, not off on some
untraveled area.
The issue in Spears was framed as follows:
We answered:
Spears’ effect on the vitality of Vines is problematic. Vines dealt
with our statute permitting the use of utility poles in public right-of-way and, unlike in
Spears, a driver who was not in the traveled portion of that right of way.
However, as previously noted, § 11-27-43 clearly mandates that a utility company must
not erect its power poles in such a manner as to endanger people or property. We find
that this is synonymous with the language in Spears to the effect that a utility
company must avoid creating an unreasonable risk of harm to others. Further, §
11-27-43, as enacted after the decision in Vines, states that power poles must
be erected in accordance with the provisions of the NESC, which states that utility
poles “shall be installed and maintained so as to reduce hazards to life as far as
practical.” We hold that this places on a utility company the continuing duty to
eliminate foreseeable danger. Although the Spears case is factually
distinguishable from the present case, the reasoning behind placing these questions
before a jury is equally applicable.
Whatever may be said for the proposition that Vines was overruled sub silentio
by Spears, we conclude that insofar as it stands for the proposition that a utility
company owes no duty to persons who may, through foreseeable negligence, come in
contact with its poles, Vines must be overruled. The duty of the utility company
is to exercise reasonable care. That duty is not obviated by the failure of the injured
party or another to exercise such care unless it is determined by the factfinder that the
latter’s conduct was the sole proximate cause of the injury. Vines’ holding, if
taken to mean that the utility company is liable only to non-negligent drivers, is not in
keeping with proper construction of the statutory authority exercised by the utility or our
law of comparative negligence. It is also at variance with decisions involving other
users of public rights-of-way, as shall be shown below.
As a matter of statutory construction, MP&L; erroneously interprets the prohibition in §
11-27-43 against interfering with “the common use” of the right-of-way as a restriction
upon the command that its use of the right-of-way be “not in a manner to be dangerous
to persons or property.” MP&L; contends that its duty to guard against danger to others
is restricted to non-negligent others. Even a casual reading of the statute indicates that
the term “common use” does not refer to “proper” use or even “ordinary” use but to use
in general, that is, concomitant use by the public. Black’s Law Dictionary 345 (4th ed.
1968). Even if the term “ordinary” is deemed incorporated into the “common use”
provision it does not follow that ordinary negligence of a type reasonably to be
contemplated is such “uncommon use” as to avoid the positive command of the statute
to erect poles “not in a manner to be dangerous to persons.” There is nothing in this
statute which permits a construction that those erecting poles may be oblivious to
incidents of ordinary negligence.
While the Vines opinion placed emphasis on the term “common use” when
quoting the statutes in question, there is no other indication that the court there
construed “common” to mean “proper” as a matter of statutory interpretation. What the
court did rely upon were previous decisions, one of which predated the statute,
announcing a public policy concern in the application of tort law principles in these
circumstances. Vines, 241 Miss. at 127, 129 So. 2d at 398. MP&L; continues to
press those same concerns here.
Succinctly stated, that public policy concern is that it is of immense benefit to the public
generally that public utilities be allowed to use public rights-of-way for the delivery of
the benefits of those utilities. It follows, the argument goes, that a different standard for
negligence or that a specific standard of care for conformity with the general standard
of care applies. See Coweta County v. Adams, 473 S. E. 2d 558, 562 (Ga. Ct.
App. 1996) (Smith, J., dissenting from majority holding applying an ordinary standard of
care and urging a different standard for utilities based on public policy); McMillan v.
Michigan State Highway Comm’n, 393 N.W. 2d 332, 342-344 (Mich. 1986) (Riley,
J., MINORITY OPINION(S) dissenting from Michigan Supreme Court holding overruling
its previous holdings precluding liability to passengers in vehicles which leave the
traveled portion of the road. Justice Riley would have continued to adhere to the prior
cases as expressive of “overriding considerations of public policy” which militate “in
favor of uniformity concerning the specific standard of conduct to which a utility
company must conform for purposes of the common law of negligence, with respect to
the placement of utility poles in or near public highways.”)
In Gulfport & Mississippi Coast Traction Co. v. Manuel, 123 Miss. 266, 278, 85
So. 308, 309 (1920), which was quoted and relied upon in Vines, this Court
alluded to the public policy of allowing public uses of right-of-way other than travel.
The legislature, our premier expositor of public policy, later expressed itself by the
statutes allowing both electrical and natural gas utilities use of public rights of way.
See Vines, 241 Miss. at 125-126, 129 So. 2d at 397-98. It is those statutes
which we now construe.
There is no compelling reason why the statutes providing for the use by natural gas
companies should be given a different construction than those governing electric utility
use. As for natural gas utilities, this Court has expressly held that a utility is “not
relieved of liability for resulting injuries because the obstruction is outside the traveled
way.” United Gas Corp. v. Parker, 252 Miss. 486, 492, 174 So. 2d 370, 372
(1965). Neither is a utility relieved of liability because the driver of the vehicle colliding
with the offending structure may have been negligent. United Gas Pipe Line Co. v.
Jones, 236 Miss. 471, 499-500, 111 So. 2d 240, 250-51 (1959). The Jones
Court distinguished the cases relied upon in Vines and the Parker Court
distinguished those cases and Vines with the observation that they involved
poles “‘which could readily be seen from a distance by motorists approaching from
either direction along the highway.'” Parker, 252 Miss. at 493-494, 174 So. 2d at
373 (quoting Jones, 236 Miss. at 499, 111 So. 2d at 251). This ground for
distinguishing those cases appears to be an application of the “open and obvious” bar
to recovery. If so, it must give way to our present jurisprudence incorporating that
defense into our comparative fault doctrine. See Tharp v. Bunge Corp., 641 So.
2d 20 (Miss. 1994).
Today we adopt a standard which requires those who place structures in rights-of-way
pursuant to the statute to exercise reasonable care under the circumstances for the
safety of those making common use of the right-of-way. It shall not be a bar to liability
that contact with the structure occurs only after the driver, through misfortune or
ordinary negligence, has left the main traveled portion of the right of way. In
determining whether the placement of a pole may be considered unreasonably
dangerous such that liability may follow, the trial court should consider such factors as
the structure’s proximity to the roadway, the configuration of the roadway, whether the
utility had notice of previous accidents of sufficient similarity to give reasonable notice
of the danger, and whether there are feasible alternative locations for the structure
which are less dangerous. See McMillan, 393 N. W.2d at 339; Scheel v.
Tremblay, 312 A.2d 45, 46 (Pa. Super. Ct. 1973).
Applying this standard to the case at bar, the conflicting evidence presented in this
case created issues to be resolved by the jury: whether this danger was foreseeable
given the location of the pole, the curvature and condition of the road, and the prior
accident; whether Tackett’s negligence was the sole proximate cause of Kristen’s
injuries; and whether it was practical for the utility company to eliminate the risk of harm
by placing the pole in a different location. Taking the evidence in a light most favorable
to the non-movant, MP&L;’s motion for judgment notwithstanding the verdict was
properly denied by the trial court. For the same reasons, Jury Instruction P-4 was
properly granted and Jury Instructions MD-15 and MD-12 were properly denied.
IV.
MP&L; claims that no jury issue under general principles of nuisance law was made in
this case, and therefore the trial court erred when it granted Jury Instruction P-6. That
instruction states in pertinent part:
1. Mississippi Power and Light Company failed to construct and maintain its poles and lines involved in this case in a manner so as to reduce hazards to life as far as practicable; and
2. Its said poles and lines endangered the safety of travelers using Money Road
then I instruct you that Mississippi Power and Light Company’s construction and maintenance of its poles and lines within the right-of-way of Money Road at the location where the occurrence in this case took place constituted a public nuisance.
MP&L; essentially reiterates its arguments under the first assignment, claiming the
above jury instruction should not have been granted.
The following language was quoted with approval in McKay v. Boyd Const. Co.,
Inc., 571 So. 2d 916 (Miss. 1990):
A necessary corollary of the foregoing statement of general rules is that an obstruction made in the proper exercise of a proprietary right or pursuant to due public authorization, and maintained in a proper condition, is not regarded as a nuisance. However, one invoking the protection of such authorization must show that he acted strictly within the authority conferred, and where an authorization to obstruct the public way is exercised in an improper manner, the obstruction becomes a nuisance of a kind which arises out of negligence.
McKay, 571 So. 2d at 921-22 (quoting 39 Am. Jur. 2d Highway, Streets and Bridges § 274 (1968).
Because there was evidence adduced which could have been found by the jury to
prove that MP&L; failed to properly exercise its right to construct the power pole in
question and maintain the power pole in a proper condition, pursuant to the authority of
the NESC and Miss. Code Ann. § 11-27-43, the jury could have concluded that the
power pole constituted a public nuisance arising out of negligence, thereby rendering
MP&L; liable for damages. Therefore, the trial court did not err in granting Jury
Instruction P-6.
V.
MP&L; next contends that the circuit court erred in excluding evidence of drinking by the
driver involved in the accident and in failing to grant MP&L;’s alternative motion for a
new trial. This assignment calls into question the trial court’s determination to grant
Lumpkin’s motion in limine to exclude any mention of Tackett’s consumption of alcohol
prior to the accident. Tackett admitted to drinking four or five beers on the night of
November 23, 1989, from approximately 8:30 or 9:00 p.m., until approximately 10:30
p.m., and to being “tight” prior to the wreck. He stated, however, that he did not think
his ability to drive had been impaired. Tackett also conceded that he was negligent in
driving over the speed limit and failing to negotiate the curve, but maintained that his
negligence was not the proximate cause of the injuries sustained by Kristen.
The court ruled that the issue of Tackett’s negligence, having been admitted in his brief
in opposition to MP&L;’s summary judgment motion, was no longer before the court and
that any mention of his consumption of alcohol would be unduly prejudicial. The court
also had difficulty finding relevance in Tackett’s admission that he was “tight” when the
accident occurred, stating, “I guess I’m having problems knowing what tight means.”
The court determined that the word “tight” was very nebulous. Defense counsel agreed
that “tight” was a nebulous word, but that since Tackett selected the word in a
deposition to describe his condition, MP&L; argued that it was entitled to explore it to
the extent the experts thought it would be relevant to the occurrence of this type of
accident.
Tackett, in his deposition, was asked whether or not he was tight, to which he replied,
“I would say tight; wasn’t drunk.” Tackett further stated that he “knew what he was
doing,” but admitted that the alcohol affected him ” little.” The court stated the following
reasons for granting Lumpkin’s motion:
Although the foregoing statement from the trial judge, taken by itself, is somewhat
confusing, an examination of earlier comments by the judge clarifies that the court was
not persuaded that the evidence of Tackett’s consumption of alcohol was significantly
relevant to the issues or MP&L;’s case. The court had earlier commented: “What I hear
[defense counsel] telling me is that people run all over the place whether or not they’ve
been drinking, which seems to me to undercut your argument that this variable is so
essential to your position-what you’re telling me is it doesn’t matter. They were all over
the place, drinking or not.” When the court’s comments on this issue are taken as a
whole, it is clear that the ruling was based on the conclusion that the relevance of the
evidence of Tackett’s drinking, if any, was substantially outweighed by the prejudice
that would result from such evidence.
MP&L; also argues that the jury was entitled to hear evidence that Tackett had been
drinking because it was clearly relevant to a determination of the degree of Tackett’s
negligence, that is, whether he was the sole proximate cause or a contributing
proximate cause, and what apportionment of fault his negligence deserves. It also
asserts that this evidence was necessary to allow the jury to determine the degree of
Kristen’s negligence, if any, in riding with Tackett under circumstances from which the
jury could infer that she was aware of his intoxication. We agree.
While we applaud the care taken by the court to preclude issues which are more
prejudicial than probative, that care was misapplied in this case. We so conclude
primarily because any negligence on the part of Kristen in choosing to ride with Tackett
while he was driving under the influence of alcohol must be assessed by the jury.
Additionally, because the foreseeability of an accident such as this bears upon the
issue of MP&L;’s negligence, if any, Tackett’s condition may be instructive with regard
to a jury assessment of the condition of the road in that location and the role that it
played in the accident. While it is clear that foreseeability is to be determined by
reference to what might probably happen rather than what did in fact happen, what
actually happened cannot be erased from the mind of the jury in making that
assessment. It is important that it know a circumstance as relevant as this. Finally,
Tackett’s state of sobriety may also have an impact upon the jury’s assessment of his
credibility in relating the events which occurred that night.
Of course, whether or not evidence is admissible for other purposes, the trial court is
required to balance the potential for prejudice against the probative value of the
evidence under Rule 403. See, e.g., Watts v. State, 635 So. 2d 1364, 1368
(Miss. 1994) (“to be sure, evidence admissible under Rule 404(b) is also subject to the
prejudice test of Rule 403”) (quoting Jenkins v. State, 507 So. 2d 89, 93 (Miss.
1987)); Ellis v. State, 661 So. 2d 177, 184 (Miss. 1995) (trial judge ruled that
defendant’s testimony would not come under Rule 404(b), but properly proceeded to
conduct a Rule 403 balancing test).
It is important for the courts to remember, however, that potential prejudice is not
equally weighted with probative value under this test. In Foster v. State, 508
So. 2d 1111 (Miss. 1987), this Court held:
If one or more of the 403 considerations slightly outweigh probative value, the evidence still must be admitted. To tip the scale is not enough. The 403 factors must, in the language of the rule, “substantially outweigh” probative value before the evidence may be excluded. Foster, 508 So. 2d at 1117
We note that where the trial court makes specific findings on the record concerning its
determinations under Rule 403, proper review is facilitated. See, e.g., Ellis, 661
So. 2d at 184.
In the present case, the trial court conducted no on-the-record balancing. We
nevertheless conclude that it was error to exclude evidence of Tackett’s drinking. This
is a close case as to the issue of liability. The error, especially when combined with
the error in excluding expert testimony to be discussed below, mandates reversal.
VI.
MP&L; next contends that the circuit court erred in excluding testimony by its expert
witness, Bob Marsh, on issues of foreseeability, the variables involved in utility pole
placement, and placement of the pole at the location recommended by the plaintiff’s
experts.
MP&L; tendered, and the trial court accepted, Bob Marsh as an expert in the field of
electrical engineering. Marsh generally testified that the power line in question, in his
opinion, met the requirements of the NESC. However, when MP&L; asked Marsh the
following question, Lumpkin’s counsel objected:
MR. LISTON: We object, Your Honor. That’s not one of the opinions that this witness was said to have in the discovery.
The court sustained Lumpkin’s objection and MP&L; made its proffer. During the
proffer, MP&L; attempted to make a record of what transpired at Marsh’s deposition in
order to show that Lumpkin’s counsel was aware he would testify regarding the
foreseeability issue. Lumpkin’s counsel argued the following:
With regard to what transpired at Marsh’s deposition, counsel for Lumpkin stated:
“May it please the court, we’ll admit that I questioned him. I asked him every question I
could think of, but it’s not relevant to this and I object to it.” MP&L; argues that Marsh
was deposed and asked questions concerning the foreseeability of this accident;
therefore, even though the answer to the interrogatory was never supplemented to
state that Marsh would testify on the foreseeability issue, the trial court committed
reversible error in excluding Marsh’s testimony on this subject.
Pursuant to Miss. R. Civ. P. 33, the plaintiffs propounded a set of interrogatories to
MP&L.; Included was an interrogatory seeking discovery of the information permitted
under Miss. R. Civ. P. 26(b)(4)(A)(i). In regard to Marsh, MP&L; responded in writing on
September 14, 1990, as follows:
(d) Their opinion is based on their education, experience, knowledge of and examination of the line in question.
We observed in McCollum v. Franklin, 608 So. 2d 692 (Miss. 1992) that
excluding evidence for a transgression in discovery is an extreme measure. Before
imposing such a sanction a trial court should consider the explanation for the
transgression, the importance of the testimony, the need for time to prepare to meet the
testimony and the possibility of a continuance. Murphy v. Magnolia Elec. Power
Ass’n, 639 F. 2d 232, 235 (5th Cir. 1981). The first consideration involves a
determination whether the failure was deliberate, seriously negligent or an excusable
oversight. The second consideration involves an assessment of harm to the proponent
of the testimony. The third and fourth considerations involve an assessment of the
prejudice to the opponent of the evidence, the possibility of alternatives to cure that
harm and the effect on the orderly proceedings of the court.
Clearly there is no deliberate failure to grant discovery here. Marsh was named as an
expert. He was offered by MP&L; to respond to the issue whether the accident was
reasonably foreseeable as a Rule 30(b)(6) witness and deposed as such. Answers to
interrogatories indicated that he would state an opinion that the placement of the pole
complied with NESC standards. That testimony necessarily includes an assessment as
to the foreseeability of accidents such as this. Foreseeability was clearly the main
issue in the case about which Lumpkin was prepared to and did offer expert testimony.
There was no time needed for further preparation. Lumpkin does not even claim actual
surprise or prejudice if this testimony was admitted. Under these circumstances it is a
clear abuse of discretion to exclude the testimony. This error requires reversal.
VII.
We need not discuss the balance of the issues raised by MP&L; because they are not
likely to recur. It should suffice to say that we are troubled by the trial court’s need to
reform an ambiguous verdict and the manner of that reform. This situation should be
corrected by the use of a less ambiguous special instruction form.
For the foregoing reasons this case is reversed and the matter remanded to the circuit
court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
SULLIVAN AND PITTMAN, P.JJ., CONCUR. McRAE, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. SMITH, J., CONCURS IN PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY PRATHER, C.J., AND ROBERTS, J. MILLS AND WALLER, JJ., NOT PARTICIPATING.
McRAE, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
I agree with the majority’s decision to overturn Vines v. Southwestern Mississippi
Elec. Power Ass’n, 241 Miss. 120, 129 So. 2d 396 (Miss. 1961). The shoulders of a
highway are for the use of traffic in cases of emergency, and when circumstances
indicate their usefulness, they should be kept free of unnecessary obstructions, like
utility poles, which are likely to cause injury to persons using the highway. However, I
disagree with the majority’s decision to remand this case based on the exclusion of
evidence. This case was about whether there was joint liability or a single tortfeasor.
The operative question for the jury was whether MP & L was negligent, regardless of
the percentage, and the jury answered in the affirmative. Kristen Black was a
passenger and was not negligent at all. Accordingly, I would affirm the verdict.
Evidence presented at trial established that whether drivers of vehicles in the particular
curve on Money Road had been drinking, vehicles have left and will continue to leave
that road in various directions at the curve. The evidence of the prior accidents at this
location in the years leading up to this incident sufficiently established that MP & L had
constructive knowledge of the defective condition and that MP & L had an obligation to
discover the defect and re-position the pole to protect the public from harm. MP & L’s
failure to take any of these measures constitutes fault which contributed to this
accident. I agree with the trial judge’s conclusion that the location of the electricity pole
in the curve at Money Road created an unreasonable risk of harm. Both Spears v.
Mississippi Power & Light Co., Inc., 562 So. 2d 107 (Miss. 1990) and Miss. Code
Ann. § 11-27-43 mandate that a utility company must not erect a pole if such an act will
be dangerous to persons or property. As a matter of law, then, MP & L was negligent.
The question in this appeal is not the negligence of Tackett; it is whether or not the
power company was negligent in placing the pole at a place where danger was
foreseeable. MP & L’s responsibility for the judgment returned by the jury regarding
this act is not diminished, whether the driver of the car was intoxicated and hit the pole,
whether the driver carelessly ran off the road and hit the pole, or whether conditions at
the curve caused the driver to hit the pole. MP & L placed that pole right in the crest of
a dangerous curve, knowing of the dangers that could occur there and after having
second and third “bites at the apple.” Further, MP & L was aware of incidents prior to
the instant accident in which that pole had been hit. Nonetheless, MP & L did nothing
to alleviate the clearly foreseeable risk of danger.
Whether MP & L was 1% negligent or 99% negligent, it owed the appellees the entire
amount of the jury verdict, pursuant to Mississippi’s joint and several liability scheme as
it existed at the time. With joint and severable liability, a jury is not asked to apportion
the negligence or the award between two defendants. A plaintiff can collect an entire
award from either defendant or part of the award from both defendants. In this case,
the jury clearly found MP & L to be negligent. The alleged influence of Tackett’s
drinking would not change the fact that MP & L negligently placed the pole in a
dangerous position and continued to maintain it there after being put on notice of the
dangerous situation. In the instant case, Lumpkin and Black may enforce their
judgments in full against MP & L as a solitary obligor. If it feels compelled to do so, MP
& L may then assert its own rights of contribution and/or indemnity against Tackett.
Accordingly, the jury verdict should be affirmed.
SMITH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
I agree with the majority that the trial court erred by failing to admit evidence of
Tackett’s intoxication and in failing to admit the testimony of Mississippi Power and
Light’s expert, Marsh. I accordingly agree that this case must be reversed. However, I
strongly disagree with the majority’s attempt at overruling of Vines v. Southwestern
Miss. Elec. Power Ass’n, 241 Miss. 120, 129 So. 2d 396 (1961), as well as other
issues raised by Mississippi Power and Light Company (MP&L;) which, in my view,
warrant reversal of this case. I would reverse and render this case based on
Vines.
In attempting to overrule Vines, according to the majority, a properly instructed
jury may find that MP&L; negligently created a hazardous condition by placing its utility
pole precisely in a position 21′ 6″ off the traveled portion of Money Road. This position
would allow a jury to find that such placement constituted a dangerous obstacle to
drivers normally utilizing the roadway. The majority thus adheres to the premise that it
was “reasonably foreseeable” by MP&L; that reckless, “tight” drivers, who failed to
maintain a proper lookout, failed to maintain proper control over their vehicles, while
driving at an excessive rate of speed, would ignore highway warning signs and most
likely run off the roadway in a known dangerous 60 to 90 degree curve, leave 80 feet of
tire skid marks on the pavement, fly airborne 45 feet, striking MP&L;’s improperly placed
pole with such force that it would split into three separate pieces and then the vehicle
would slide an additional 64 feet to its final resting place in a farmer’s muddy cotton
field.
Adopting Lumpkin’s experts’ opinion, the majority maintains that a jury should
determine whether MP&L; should have placed the pole in question at a different and
safer location. However, the ultimate question then becomes: How can a company like
MP&L; ever predict where the driving patterns of this type of driver will lead when
deciding upon a safe location in which to place its utility poles? The answer is no
company would ever make such a prediction. Such is the folly of suggesting overruling
Vines, which in my view, is good law.
The story does not end there. The Mustang automobile driven by Randy Tackett was
occupied by teenagers. Tackett admittedly consumed four or five beers and was
feeling “tight.” Tackett failed to heed the sharp curve highway warning sign as well as
the warnings of the other teens in his vehicle concerning the upcoming bad curve.
Miraculously, no one was injured in the above described scenario. Immediately after
the wreck, Tackett was busy gathering up and disposing of the evidence, i.e., throwing
the remaining beer and empty beer cans in to a nearby creek. Fifteen year old Kristen
Black exited the car and started towards the highway despite a warning from Heather
Barry, who stated “Kristen, don’t go up there. There’s wires up there.” Kristen told
Heather that “she was just going to go up under them.” Kristen continued to walk
towards the highway and made contact with one of the energized downed wires and
was severely injured. This case could easily be referred to as one of “cause and effect,
chain of events,” which was significantly contributed to by Tackett’s extremely negligent
conduct. However, the jury, without benefit of Bob Marsh’s testimony and further
restricted by limited knowledge of the complete facts, found no negligence whatsoever,
by Tackett.
And the story continues. Extensive discovery was conducted by all parties. MP&L;
responded to Lumpkin’s Interrogatory No. 3 and listed Bob Marsh as an expert witness,
who was expected to testify inter alia that the utility pole and power line were both
constructed and maintained in accordance with generally accepted industry standards
and in accordance with the National Electric Safety Code. In addition, Marsh was
questioned extensively by plaintiff’s counsel during a Rule 30(b) (6) deposition taken
on November 12,1990, concerning the above related matters, issues of utility pole
location, alternate pole locations, and foreseeability. This deposition was conducted
fourteen months prior to trial. Lumpkin was completely informed concerning all factors
of Marsh’s upcoming testimony at trial.
At trial, Lumpkin offered expert witnesses who were allowed to testify that MP&L;
should have placed its utility pole at a different and safer location. Lumpkin’s experts
testified that a safer location for the utility pole would be to place it in front of the
farmer’s liquid ammonia nitrate tank in the cotton field, and this position was the only
alternative placement for the pole that was ever suggested by the plaintiff’s experts. A
more dangerous placement could not possibly have been selected by the plaintiff’s
experts. Placement of the pole in front of a liquid ammonia nitrate tank, subjecting it to
the possibility of a vehicle containing gasoline running over the light pole, splintering
the pole into three pieces and bringing down the lines, then striking the ammonia tank,
with the added possibility of a spark from electrical lines, or alternatively, a fire from the
vehicle’s fuel line or gas tank, would set off an explosion of astronomical proportions.
Plus, such placement was not possible according to the engineers.
However, the trial court excluded Marsh’s relevant testimony on the issue of Tackett’s
driving conduct, foreseeability and pole location when Lumpkin’s counsel claimed that
he was being “ambushed ” and surprised, because MP&L; had not complied with Rule
26 (f)(1) and revealed in interrogatories all this information that Marsh would testify to
at trial. The purpose of discovery is to eliminate trial by surprise and that discovery
may be obtained by utilizing several different means. Lumpkin’s counsel had
thoroughly questioned Marsh on all of these important issues at deposition and could
not possibly have been ambushed or surprised.
Thus, the expert testimony of the three plaintiff experts at trial went unrefuted on these
critical issues. The only evidence that the jury was allowed to consider was that the
pole in question was placed by MP&L; in a location which constituted a hazardous
placement. The plaintiff’s expert supported this claim by testifying that there had been
other vehicles that had run off the road in the curve and one vehicle had previously
struck the guy wire on this pole.
Lumpkin’s argument that the pole’s placement constituted a hazard pales when
compared to the fact that over three million vehicles had passed by the pole and not a
single vehicle had struck the pole prior to this accident. This writer would assert that
this fact alone absolutely supports the position of MP&L; that the pole was in as safe a
location as could possibly be determined. A reverse question could be posed back to
the majority: At what other location could MP&L; have placed the utility pole that would
have insured that it would not be struck by an out-of- control, speeding, reckless or
drunk driver? Common sense dictates the existing location was as reasonably safe as
any other potential site. The lack of common sense suggestions of pole placement by
Lumpkin’s experts as adopted by the majority, warrants the re-naming of this issue as,
“The pole that should not have been coming after Tackett’s car.”
Nevertheless, logic and fairness notwithstanding, the jury was precluded by the trial
judge from hearing any evidence from Marsh concerning his opinion that it was an
absolute impossibility to design a utility pole distribution system when required to
consider drunk, reckless drivers and other variable factors being figured into an
equation when attempting to predict where an out-of-control driver might run off a road.
Obviously, at the time of trial, Lumpkin’s counsel had been fully aware for fourteen (l4)
months of all matters that Marsh would testify to at trial. Accordingly, Lumpkin’s
counsel should not be allowed to be successful in his plea of surprise, ambush or
prejudice. There is a glaring absence of any of these three factors affecting Lumpkin.
Contrarily, MP&L; was severely prejudiced by the trial court’s denial of Marsh’s
testimony.
But, the saga continues with the trial court’s precluding evidence of Tackett’s
consumption of alcohol. While I agree with the majority on this issue, I write further to
emphasize this error. Plaintiff’s counsel filed a motion in limine to exclude any mention
of Tackett’s consumption of alcohol prior to the accident. The trial judge reasoned that
since Tackett admitted negligence in that Jury Instruction P-7, which stated that Tackett
admitted a violation of his [duty to exercise reasonable care in the operation of his
automobile] in that he failed to maintain proper control, allowing the jury to consider
any evidence of alcohol consumption would create unfair prejudice against Tackett,
substantially outweighing any probative value. The jury was not told the entire story of
Tackett’s negligence, which included: failure to maintain a proper lookout, failure to
observe highway warning signs regarding the bad curve, failure to heed the warnings
of fellow occupants of the vehicle regarding the bad curve, previous experience driving
in that area as he had proceeded through the curve earlier that same evening,
exceeding the 55 miles per hour speed limit, locking his brakes up, cutting his steering
wheel. And perhaps the most relevant of all, the jury did not hear that he admitted
consuming four to five beers and was “tight,” and maybe
affected
“little,”
but not drunk.
The trial court had difficulty finding relevance in Tackett’s admission that he was “tight”
when the accident occurred. Judge Graves stated, “I guess I’m having problems
knowing what tight means.” He determined the word “tight” was very nebulous. In his
deposition, it was Tackett who selected the word by stating, “I would say tight; wasn’t
drunk.” However, Tackett then admitted that the alcohol affected him ” little.” Tackett
appears to be attempting to “backstroke” out of a trap that he himself set. The word
“tight” is a common, everyday, garden variety word, used frequently by the public at
large to express an opinion that a person is intoxicated or under the influence of
alcohol. More importantly, in the case sub judice, it was Tackett’s chosen word to
describe himself on the occasion of the accident. Admittedly, the word “tight” has
several different meanings, one of which is, ” full of liquor, intoxicated, drunken.”
Websters Third New Int’l Dictionary 2392 (1971). The word may have been
nebulous to the trial judge, but it’s not to Mr. Webster nor this writer because of the
context within which it was used by Tackett in his response at deposition. The jurors,
had they been allowed to hear the testimony concerning Tackett’s use of the word
“tight,” in its entire context, could have reasoned that Tackett was intoxicated, thus
more negligent than admitted to on the occasion of the accident. Had jurors been
made fully aware of this factor, they could have determined that Tackett’s intoxication
was a relevant and material factor in causing the accident in question or at the very
least that such factor may have added to the issue of contributory negligence of Kristen
Black. This one factor alone overwhelmingly affected the outcome of this verdict. The
trial court totally ignored that evidence of Tackett’s being “tight” also went to
foreseeability, to the degree of Tackett’s negligence and proximate cause, and to
Kristen Black’s contributory negligence in knowingly riding with Tackett, who had
consumed alcohol. The jury was entitled to decide this issue for themselves.
The finale of this story is the trial judge’s interrogation of the jurors regarding their
ambiguous verdict, conducted in open court in the presence of the parties and
attorneys and without benefit of further instructions on the law. The proper course of
action based on precedential case law is for the trial court to prepare additional
instructions if necessary or advise that the jury has already received adequate
instructions and send the jury back to continue its deliberations. The better course
would have been for the judge to send the jury back to deliberate with a clearer
question.
Having been now fully informed on the factual events and rulings of the trial judge, it
should not shock the reader that the end result of this story was a jury verdict for Black,
but finding MP&L; 50% comparatively negligent in its utility pole placement, Black 50%
contributorily negligent and Tackett without fault in causing the accident.
Considering Black’s contributory negligence, the trial judge’s rulings which unfairly
hampered MP&L;’s defense, and the withholding from the jury of significant, relevant
facts concerning Tackett’s negligence, the verdict was astounding. The resulting
verdict in favor of Black and against MP&L; in the amount of $750,000, with Tackett
totally absolved of any negligence was unfair, fundamentally offensive, and obviously
the result of prejudice or bias by the less than fully informed jury. Nevertheless, this
unjust verdict against only MP&L; without including Tackett was easily predictable,
considering the trial judge’s rulings and the mountain of critical and relevant evidence
that the jury was not allowed to hear.
An analysis of each individual issue complained of by MP&L;, examination and
application of our appropriate case law, leads this writer to the conclusion that the
majority is mistaken. This case should be reversed and rendered in favor of MP&L.;
Lumpkin asks this Court to overrule Vines v. Southwestern Miss. Elec. Power
Ass’n, 241 Miss. 120, 129 So. 2d 396 (1961) and the legion of cases forming the
basis of the law dating back seventy-eight years to Gulfport & Miss. Coast Traction
Co. v. Manuel, 123 Miss. 266, 85 So. 308 (1920) and the majority attempts to do so.
The facts in Vines are practically identical to the case at bar. Vines’ accident
occurred at 11:00 p.m., the same time as this accident occurred. In Vines, the
driver admitted drinking two bottles of beer. Here Tackett admitted consuming either
four or five beers. There were four occupants in the vehicle in Vines and five in
this case. The driver in Vines was traveling 35 to 40 miles per hour in a curve to the
left. Here Tackett admitted to exceeding 55 miles per hour in a sharp 60 to 90 degree
curve to the left. The pole struck by the driver in Vines was located only three and
one-half feet from the traveled portion of the roadway and had been struck twice
before. Here the pole was located twenty-one feet and six inches from the roadway
and had never been struck before, although the guy wire had been previously struck.
In Vines, the driver left the traveled roadway and ran 150 feet down a ditch.
Here, Tackett traveled 189 feet out of control, 45 feet of which was airborne, most likely
the results of his greater speed and the four foot elevated roadbed. Both drivers struck
utility poles breaking them and bringing down the power lines. In both cases,
passengers were injured by walking into downed power lines. In Vines there
was even evidence of a failed power steering system, yet no such vehicle mechanical
failure exists in this case.
Readily obvious is that the actions of Tackett were much more egregious than those of
the driver in Vines. What is also recognizable is that Tackett was not making an
ordinary use of the roadway nor exercising reasonable care and caution. This Court, in
Vines, stated:
Vines, 241 Miss. at 128,129 So.2d at 399.
The Court further noted that the driver was not making ordinary use of the roadway and
cited a Tennessee Court of Appeals case which stated:
Vines, 241 Miss. at 128, 129 So. 2d at 399 (quoting Clayforn v. Tenn. Elec. Power Co., 101 S.W. 2d 492, 497).
The majority apparently fails to observe that in this case, as was the situation in
Vines, it is the driver’s overall conduct amounting to multiple improper and
negligent actions which constitute improper use of the highway. This Court granted a
directed verdict in Vines. MP&L; should have also been granted a directed
verdict in this case.
The majority also attempts to utilize this Court’s decision in Spears v. Miss. Power &
Light Co., Inc., 562 So. 2d 107 (Miss. 1990) as support for its position.
Spears is distinguishable for several reasons. First, the Spears decision
did not even involve the location of a utility pole placed along a public highway. The
facts in Spears concerned an MP&L; easement and right-of-way across a private
business’s parking lot and involved a driver invitee, who while concentrating on finding
a parking place on a dark night, simply did not see the utility pole during a heavy
rainstorm and struck the unmarked pole. Thus, the issue was totally different in that it
dealt with the determination of what standard of care was owed to an invitee of the
property owner who was injured when he collided with a dark, unmarked power pole
owned by MP&L; and which occupied a portion of the premises where traffic normally
flowed. Even the majority admits the issue in Spears was different but,
nonetheless the majority plows ahead citing the Spears questions: Whether the
pole should have had lighting? Should the pole have been marked? Should the owner
or MP&L; have installed guard rails around the pole? Is the majority suggesting lighting
and guard rails on every utility pole in this state? Whether the injury was foreseeable
as to MP&L;? Was there an obligation of the defendant to anticipate an injury? It is
more than noteworthy that the Spears Court apparently did not find the facts
sufficiently analogous enough to Vines to even mention that opinion, much less
attempt to overrule it.
Next, the majority refers to §11-27-43 which states that power poles must be erected in
accordance with the provisions of the NESC. The provisions state that utility poles
shall be installed and maintained so as to reduce hazards to life as far as practical.
Using the majority’s view, it is absolutely reasonable to require that MP&L;, on its miles
and miles of power lines located along highway right-of-ways, mark all of the poles,
install lights and guard rails to avoid creating an unreasonable risk or hazard to drivers
normally using the roadway. The majority fails to note that there is a much greater
likelihood of a vehicle driven by an invitee striking an unmarked, unlighted, unguarded
utility pole in the middle of a business’s private parking lot than it would be to foresee
that an admittedly “tight” teenager, who had consumed four or five beers, exceeded 55
mph, failed to maintain proper control of his vehicle, failed to maintain a proper lookout,
failed to heed a warning sign of a bad curve, failed to heed warnings from fellow
occupants, would go airborne and strike a utility pole located 21 feet 6 inches off the
highway.
Common sense dictates the necessity of public utilities utilizing highway right-of-ways
to enable electricity to be delivered to the thousands of citizens of this State. The
system denotes a dual use of one existing right-of-way, thereby decreasing the overall
costs of unnecessary re-routing of electrical distribution systems. Both the Legislature
and this Court have recognized the prevailing public interest served by this system.
This Court, in Vines noted with approval “the public interest served in the use of
the streets for the erection of utility poles.” Vines 241 Miss. at 127, 129 So. 2d at
398. The Vines Court further stated:
Also, in City Council of Greenville v. Thomas, 241 Miss. at 633, 131 So. 2d 659
(1961), this Court stated:
However, this dissent recognizes what the majority apparently does not, that this dual
system of use of a highway right-of-way for highway purposes and electrical
distribution poles may co-exist without danger or interference to the other. And yet, by
the same token, neither may utilize their rights in a manner as to wantonly injure the
other. This Court, in Mississippi Power & Light Co. v. Dulaney, 239 Miss. 460,
123 So. 2d 845 (1960), stated:
A driver making normal use of the roadway is clearly one who is obeying the law,
exercising reasonable care and caution and traveling upon that portion of the highway
right-of-way designated for public travel. Contrarily, out-of-control drivers such as
Tackett, who are violating every conceivable rule of care, throwing caution to the wind,
whereupon they fly airborne 45 feet and strike a utility pole on the outer extreme edge
of the right-of-way, as are this case, are certainly not making normal use of the
roadway. It is absurd to suggest that MP&L; under these circumstances has ignored
foreseeability of an accident, and created an unreasonable risk of harm, by placing its
pole so as to wantonly injure Black. It was error to grant Instruction P-4 and deny
MD-15 and MD-12. A directed verdict for MP&L; was proper and should have been
granted by the trial judge. On this issue alone, I would reverse and render for MP&L.;
I also respectfully disagree with the majority concerning the granting of Instruction P-6,
which submitted the issue of public nuisance to the jury. The majority holds that the
trial court properly allowed the public nuisance instruction, citing as support, approved
language in McKay v. Boyd Const. Co., Inc., 571 So. 2d 916, 921-22 (Miss.
1990) wherein this Court stated:
39 AM. JUR. 2d HIGHWAYS, STREETS, AND BRIDGES, § 274, pp. 661-62 (1968).
McKay cites United Gas Pipe Line Co. v. Jones, 236 Miss. 471, 111 So.
2d 240 (1959), which was Lumpkin’s sole authority for submitting the public nuisance
theory to the jury. McKay and Jones are factually distinguishable from the
case at bar.
In McKay, two year old Timothy McKay was the sole survivor in a vehicle driven
by his mother. The driver strayed slightly to the left on U.S. Highway 49, a four-lane
divided highway and struck head-on the blunt edge of the concrete abutment of a
bridge. The abutment was located 23 inches from the traversed portion of the access
road. Id. at 917-18. McKay filed suit against the contractor of the bridge, Boyd
Construction Company and the Mississippi State Highway Commission. Summary
judgment was granted to both defendants. The Jones decision was cited by the
appellants in Vines, and rejected by this Court which stated, “We do not think
the Jones case is applicable.” Vines, 241 Miss. at 129, 129 So. 2d at 399.
This dissent has already shown that Vines is virtually identical to the facts in the
case sub judice and the differences strongly favor MP&L.; In Jones, the facts
revealed that a passenger was killed when the vehicle in which he was riding struck
United Gas Pipe Line’s concrete marker. The vehicle, moments before impact had
been traveling 90 mph, but due to a plea by an occupant to slow down, the vehicle was
traveling 55 to 60 mph as it entered the curve. The highway right-of-way was 60 feet
wide, the traveled portion of the roadway was 18 feet wide and United’s 2 1/2 foot high
concrete marker was located only 3 to 3 1/2 feet from the black top pavement. The
marker was obscured from view by sedge grass.
The majority cannot seriously contend that the facts above mentioned are analogous to
the case sub judice. Even the Jones Court itself distinguished the pipeline
marker in that case from electric utility pole cases. Referring to the Manuel and
Sellers cases, the Jones Court stated: But the facts in each of those cases were
entirely different from the facts shown by the record in this case. Those cases involved
injuries resulting from collisions with the poles of electric power companies which could
be readily seen from a distance by motorists approaching from ether direction along the
highway. Jones, 236 Miss. at 499, 111 So. 2d at 251.
Returning to the case at bar, Tackett’s claim that “he never saw MP&L;’s utility pole
even as the car drove through it,” is thinly disguised. The pole was 35 feet long,
unobstructed and located down a 4 foot raised highway bed, 21 feet 6 inches from the
shoulder of the road and at the very outer limits of the highway right-of-way. Exhibit 26,
a photograph of the pole, clearly demonstrated these facts. Put very simple, this Court,
in the case sub judice is not confronted with a 2 and 1/2 foot high concrete marker,
obscured by tall grass and located a mere 3 feet from the shoulder of the road, as in
Jones. Nor is this Court confronted with a portion of a bridge located a mere 23
inches from the shoulder of the highway, as in McKay. This Court is not even
confronted with a utility pole being located 3 and 1/2 feet to 4 feet from the shoulder of
the roadway, as in Vines.
Vines, again should control where this Court, discussing the principle of liability
of a public utility for damage resulting from an automobile collusion with its utility pole,
stated that there is no liability, “unless it is erected on the traveled portion of the
highway or in such close proximity thereto as to constitute an obstruction dangerous to
anyone properly using the highway, and the location of the pole is the proximate cause
of the collision.” Vines, 241 Miss. at 128- 29,129 So. 2d. at 399.
There are other factors in Vines along with that Court’s language in addressing
them which further add strong support to MP&L;’s argument and this dissent. The
power line from the broken pole fell into the roadway. Vine’s expert witness, as did the
plaintiff’s expert in this case, testified that the poles and lines were not built and
maintained according to the requirements of the National Bureau of Standards. The
Vines Court stated:
Also noteworthy in addressing the issue of the lines falling into the roadway and the
contention by Vine’s expert that adding another pole would have eliminated this
hazard, the Vines Court stated:
Appellants showed that prior to the accident in question, a motorist had lost control of his automobile and struck the same pole. They also offered to prove another person had struck the pole some time before. We are of the opinion that the fact of prior accident does not change what has been said. The fact remains that anyone striking the pole was not lawfully and properly using the road. The evidence and the photographs clearly show that anyone making the ordinary and proper use of the highway would not strike this pole.
Vines, 241 Miss. at 130, 129 So. 2d at 399-400.
Instruction P-6 was so vague and general that the jury would have probably found
against MP&L;, no matter what set of facts was presented. It was error to give such an
instruction in view of Vines.
We now turn to an analysis of the trial court’s failure to allow the jury to hear evidence
of Tackett’s consumption of alcohol. While I agree with the majority on this issue,
nevertheless, I write further for clarification. Tackett admitted negligence, yet this does
not warrant exclusion of evidence under Rule 403. U.S. v. Lowe, 569 F. 2d 1113
(10th Cir. 1978). Rule 403, an extraordinary remedy, should be used sparingly and
only where a balancing test is conducted by the trial court to determine whether the
probative value is substantially outweighed by the danger of unfair prejudice. S.E.C.
v. Peters, 978 F.2d 1162,1171 (10th Cir. 1992)(citation omitted).
We note at the outset, that although the trial court ruled, it failed to conduct any
balancing test. Thus, there is no way for this Court to determine what factors, if any,
were considered by the trial court in arriving at its decision that the prejudicial effect of
Tackett’s alcohol consumption substantially outweighed any probative value. The trial
court does not have the prerogative of determining whether or not to conduct a
balancing test and then fail to state the reasons for his ruling on the record. In
Foster v. State, 508 So. 2d 1111 (Miss. 1987), this Court held:
If one or more of the 403 considerations slightly outweigh probative value, the evidence still must be admitted. To tip the scale is not enough. The 403 factors must, in the language of the rule, “substantially outweigh” probative value before the evidence may be excluded.
Foster, 508 So. 2d at 1117.
In Watts v. State, 635 So. 2d 1364 (Miss. 1994), this Court stated:
More recently, in Ellis v. State, 661 So. 2d 177, 184 (Miss. 1995), this Court
reaffirmed the mandatory aspects of Rule 403 wherein the Court noted with approval
the trial court’s specific findings under the Rule 403 balancing test on the record.
Commencing the specific analysis, we find three substantial reasons why Tackett’s
admissions concerning alcohol use was admissible for the jury’s consideration. First,
Tackett’s admission of drinking and of being “tight” went to the issue of foreseeability.
The denial of Marsh’s testimony prevented MP&L; from presenting to the jury the issue
of whether MP&L; could reasonably be expected to foresee in designing its electrical
transmission system and determining the location of its utility poles, that out-of-control,
drinking drivers might leave the roadway and strike MP&L;’s poles. Nor did the jury
hear Marsh’s that such a distribution system could not be designed, given such
variables. Nor did the jury hear the plaintiff’s expert witness, Hibbitt Neel’s proffered
testimony on this issue. MP&L;’s counsel, referring to Tackett, asked Neel, “Does his
having been drinking along with other factors that you’ve mentioned make it harder to
predict where his car would have gone off the road?” Neel replied, “Yes.”
Tackett’s drinking, in addition to the stipulated negligence, went also to the degree of
negligence and to whether his negligence was the sole proximate cause of the
accident. Miss. Code Ann. § 85-5-7 (1991) allows for determination of percentage of
fault in a civil case. The jury never heard the complete truth concerning Tackett’s
negligence on the night of the accident. The only negligence by Tackett that the jury
was allowed to consider was Tackett’s negligence in failure to control his vehicle. The
trial court erred in denying MP&L; the opportunity to argue that its negligence, if any,
was certainly less than Tackett’s. In Allen v. Blanks, 384 So. 2d 63 (Miss.
1980), this Court stated:
The jury remained in the dark concerning this important fact, and the jury did not know
that Tackett violated the law in purchasing or possessing beer. Miss. Code Ann. §
67-3-70 (1972). The denial of such evidence here is in marked contrast to the
allowance of evidence to the jury in Jones, “that the defendant B.J. Townsend,
was negligent in permitting his son, Paul B. Townsend, who was only 14 years of age,
to operate his car on the highway, . . . that the said Paul B. Townsend did not have a
driver’s license and could not get a driver’s license due to his age.” Jones, 236
Miss. at 482, 111 So. 2d at 242. Returning to this case, the jury, precluded from
hearing all relevant evidence, was effectively prevented from fully assessing Tackett’s
degree of negligence as to whether it was a contributing factor or sole proximate cause
of the injuries sustained by Black.
Finally, Tackett’s consumption of alcohol was certainly relevant to Black’s contributory
negligence. The jury determined that Black was 50% contributorily negligent by her
actions in ignoring warnings about the downed electrical wires, acknowledging the
wires were there but, nevertheless proceeding to walk up under them. Evidence of
Black having knowingly continued to ride in an automobile with Tackett, who had been
drinking was permissible and relevant. This Court, in Hill v. Dunaway, 487 So.
2d 807 (Miss. 1986), allowed and approved of a jury instruction on this issue. The
Hill Court stated:
See also, Jones v. Pacific Gas & Elec. Co., 285 P. 709 (Cal. Dist. Ct. App. 1930)
(where a guest passenger who was fully aware that the driver of the vehicle was under
the influence of intoxicating liquor was injured when the automobile within which he
was riding struck a utility’s power pole, the court held contributory negligence to be
proper and the passenger guilty.) The trial court erred in failing to allow this relevant
evidence to be considered by the jury.
I respectfully concur in part and dissent in part.
PRATHER, C.J., AND ROBERTS, J., JOIN THIS OPINION.
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