Sandra L. Gainey v. Entergy Mississippi, Inc. ( 1995 )

6/3/97
IN THE COURT OF APPEALS
OF THE
STATE OF MISSISSIPPI
NO. 95-CA-01158 COA
SANDRA L. GAINEY, INDIVIDUALLY AND
AS NATURAL MOTHER AND NEXT
FRIEND OF AMANDA FAYNELL GAINEY,
A MINOR, AND AS EXECUTRIX OF THE
ESTATE OF PHILLIP J. GAINEY APPELLANT
v.
MISSISSIPPI POWER AND LIGHT COMPANY APPELLEE
THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND
MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B
TRIAL JUDGE: HON. JAMES E. GRAVES, JR.
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: WAYNE E. FERRELL, JR.
CHAD CABLE
JAMES WARREN NOBLES, JR.
ANGELO DORIZAS
ATTORNEY FOR APPELLEE: NATIE P. CARAWAY
NATURE OF THE CASE: CIVIL: WRONGFUL DEATH
TRIAL COURT DISPOSITION: JURY VERDICT FOR M.P. & L.
MOTION FOR REHEARING FILED:6/18/97
CERTIORARI FILED: 8/13/97
MANDATE ISSUED: 10/16/97
BEFORE THOMAS, P.J., COLEMAN, AND KING, JJ.
KING, J., FOR THE COURT:
The Hinds County Circuit Court denied Appellant's post-trial motions for jnov and new trial after a
jury determined that the Appellee was not liable for the death of Appellant's husband, Phillip Gainey.
Aggrieved, the Appellant appeals and contends that the court should have granted her request for a
peremptory instruction or motion for jnov because the Appellee's conduct constituted negligence per
se. We find no error and affirm.
FACTS
On or about November 28, 1988, G&L Contractors commenced the replacement of a box culvert
with a larger box bridge structure on Highway 80 between the cities of Flowood and Brandon. Prior
to G&L's commencement of the project, the Mississippi State Highway Department forwarded notice
to the Appellee pursuant to section 45-15-1 of the Mississippi Code. The notice advised Appellee
that the functions and activities performed by G&L at the construction site could reasonably require
persons, equipment, or parts of tools to come within ten feet of the Appellee's high voltage lines. The
notice further asked the Appellee to confer with representatives of G&L on whether additional safety
measures would be implemented by either G&L or the Appellee. According to the notice, G&L
agreed not to perform any functions or activities until satisfactory arrangements were made
concerning the avoidance of contact with the high voltage lines.
G&L commenced work on the project two days prior to conferring with the Appellee on the
necessity of additional safety measures. On December 1, 1988, G&L's representative, David Moon
met with Appellee's engineer, Allen East at the construction site. After reviewing the construction
site and conferring with Moon, East determined that the worked performed by G&L would not
require G&L's equipment or personnel to come within ten feet of the high voltage lines. Moon agreed
and signed an agreement promising to comply with the code's provisions concerning the performance
of work in proximity to high voltage power lines.
G&L's replacement of the box bridge structure required it to divert the flow of traffic along Highway
80; therefore, cement lane barriers were placed along Highway 80. The lane barriers remained in
place for the majority of the project's duration. Then, on July 29, 1989, G&L instructed two of its
employees, Phillip Gainey and Jessie Franklin to remove the cement lane barriers. A crane, operated
by Franklin, was used to lift the cement barriers. During the removal of the barriers, Franklin
indicated to Gainey that the sun prevented him from seeing Appellee's power lines. Gainey responded
by watching the power lines and directing Franklin's maneuvering of the crane. Several of the cement
barriers were removed and loaded onto a truck without incident. Then, Franklin came into contact
with one of the high voltage wires just as Gainey had grasped the crane's chain to attach to one of the
barriers. Gainey was electrocuted and subsequently died.
After the parties' presentation of evidence, the Appellant requested a peremptory instruction directing
the jury to find against the Appellee on the issue of liability. Appellant's request for the peremptory
instruction was based upon its presentation of evidence suggesting that the Appellee violated
provisions of the National Electrical Safety Code (NESC), which require utilities to maintain power
lines so as to reduce hazards to life as far as practicable. Appellant's request for the peremptory
instruction and subsequent motions for jnov or new trial were denied.
ANALYSIS OF THE ISSUE AND DISCUSSION OF THE LAW
The Appellant contends that the trial court erred by refusing to grant the requested peremptory
instruction or motion for judgment notwithstanding the verdict because Appellee's violation of the
NESC constituted negligence per se. Failure to comply with provisions of the NESC does constitute
negligence. Mississippi Power Co. v. Luter, 336 So. 2d 753, 756 (Miss. 1976). However, proof of
negligence alone affords no basis for recovery of damages unless it further appears from direct
evidence or reasonable inference that such negligence proximately contributed to the damage.
Tombigbee Electric Power Ass'n v. Gandy, 62 So. 2d 567, 568 (Miss. 1953). The Appellee's
violation of the NESC would not result in the imposition of liability unless the violations proximately
contributed to the death of Gainey.
Evidence concerning the proximate cause of Gainey's death was in dispute. Besides the NESC
violations, evidence indicated that Gainey's employer failed to advise the Appellee that employees and
equipment would be performing operations in the location where the accident occurred. Evidence
also suggested that Gainey's attention might have been diverted because he was anxious to see a
brother, who was visiting from out of town. When the facts concerning a power company's duty or
responsibility are disputed, like the present case, the jury must determine liability or non-liability.
Garcia v. Coast Elec. Power Ass'n, 493 So. 2d 380, 382, (Miss. 1986).
In the instant case, the question of liability was resolved against the Appellant. Consistent with our
standard of appellate review, we accord deference to the jury's determination. Because the issue was
for the jury to determine, we find that the trial court correctly denied the peremptory instruction and
motion for jnov. Accordingly, we affirm the judgment.
THE JUDGMENT OF THE CIRCUIT COURT OF HINDS COUNTY IS AFFIRMED.
COSTS OF THIS APPEAL ARE TAXED TO THE APPELLANT.
BRIDGES, C.J., McMILLIN AND THOMAS, P.JJ., COLEMAN, DIAZ, HINKEBEIN,
PAYNE, AND SOUTHWICK, JJ., CONCUR. HERRING, J., NOT PARTICIPATING.