John H. Ware v. Entergy Mississippi, Inc. ( 2002 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2002-IA-00858-SCT
JOHN H. WARE, INDIVIDUALLY, AND ON BEHALF
OF OTHERS
v.
ENTERGY MISSISSIPPI, INC.
DATE OF JUDGMENT: 05/20/2002
TRIAL JUDGE: HON. LILLIE BLACKMON SANDERS
COURT FROM WHICH APPEALED: ADAMS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: JOHN E. MULHEARN, JR.
BRYAN HOWARD CALLAWAY
ATTORNEYS FOR APPELLEE: CHARLES EDWIN ROSS
NATIE P. CARAWAY
WILLIAM B. LOVETT
JAMES W. SNIDER, JR.
NATURE OF THE CASE: CIVIL - WRONGFUL DEATH
DISPOSITION: AFFIRMED IN PART; REVERSED IN PART;
AND REMANDED - 12/31/2003
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
CARLSON, JUSTICE, FOR THE COURT:
¶1. This wrongful death electrocution case comes to us via an interlocutory appeal which
was granted by order of this Court on petition of John H. Ware (Ware), individually and on
behalf of others. The trial court was presented with several motions in limine. We granted
Ware’s M.R.A.P. 5 petition which was filed pursuant to the granting of two of those motions
in limine in favor of Entergy Mississippi, Inc. by the Circuit Court of Adams County. As a
result of the granting of the first motion, the jury will be instructed to allocate fault to the
immune employer of Ware's decedent even though it has been dismissed from the lawsuit. The
granting of the second motion prevents the introduction of any testimony or evidence related
to the question of whether Entergy should have, or could have, placed the high voltage power
line underground. Ware asserts that intertwined with this second issue is the question of the
admissibility of an Entergy internal memorandum which by reference would be included in the
trial court’s granting of the second motion in limine. We affirm the trial court’s grant of the
motion in limine related to the employer; however, we reverse and remand as to the trial
court’s grant of the motion in limine relating to presentation of evidence concerning the utility
company’s duty of care.
FACTS AND PROCEEDINGS IN THE TRIAL COURT
¶2. On February 7, 1997, Glinnis Marsaw was electrocuted while in the employ of Jack
Dallas, Inc. (Dallas), an electrical contractor. The pertinent facts leading up to this tragic
event follow.
¶3. Approximately one week prior to this fatal accident, a construction crew, while
installing an underground telephone line, inadvertently severed an underground electrical line
owned by the Mississippi Department of Transportation (MDOT). This MDOT-owned
underground electrical line supplied electricity to MDOT-owned streetlights which lined U.S.
Highway 84 leading to the Natchez-Vidalia bridge spanning the Mississippi River. This MDOT
lighting system had been put in place prior to 1988. Entergy owned an overhead power line
which had been installed in 1996, and this power line supplied electricity only to the
streetlights located on the Mississippi River bridge. MDOT had approved the placement of the
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Entergy power line, and Entergy followed the then-applicable provisions of the National
Electrical Safety Code (NESC) in the placement and installation of the power line. The MDOT
streetlight poles and underground line ran between Entergy’s overhead line and U. S. Highway
84. The MDOT streetlight poles had lights mounted on fifteen-foot lever arms which extended
out over Highway 84 in the direction opposite the location of the Entergy power line. There
was a distance of approximately twenty ground feet between the MDOT
streetlights/underground power line and the point on the ground directly underneath Entergy’s
overhead power line.
¶4. Dallas had been hired by MDOT to repair its underground electrical wire damaged the
previous week by the crew installing the underground telephone line. Entergy was unaware of
the existence of the damaged MDOT power line and the presence of the Dallas crew on the
scene to perform the repair work on the date of this accident. The Dallas crew commenced its
work under rainy conditions. It was necessary to take down the MDOT streetlight poles to
repair the MDOT underground power line and then “re-erect” the poles. Three Dallas crew
members, including Marsaw, were re-erecting a light pole immediately prior to the accident.
One crew member operated the boom truck arm, another crew member was holding a rope
attached to the pole, and Marsaw was actually holding the base of the pole. As this three-
member crew attempted to maneuver the light pole back into its proper upright position, the
light pole came into contact with the energized overhead Entergy power line, causing the
electrical current to pass from the Entergy line, through the MDOT pole, and through the chest,
right hand and left foot of Marsaw, thus electrocuting him.
3
¶5. Plaintiff Ware, as wrongful death beneficiary of Marsaw, filed suit against Entergy,
MDOT, Dallas, Deviney Construction, and BellSouth Telecommunications, Inc. The trial court
granted summary judgment in favor of Dallas, under the exclusivity provision of the
Mississippi Workers' Compensation Act, Miss. Code Ann. § 71-3-9. Entergy filed several
motions in limine, two of which are before us today on this interlocutory appeal. In these two
motions in limine, Entergy moved (1) to have the jury instructed to allocate fault to the
immune employer even though it was dismissed from the lawsuit, and (2) to exclude any
testimony or evidence related to whether Entergy should have, or could have, placed the high
voltage power line underground. Both of those motions were granted by the trial court.
STANDARD OF REVIEW
¶6. The standard of review regarding the admission or exclusion of evidence is abuse of
discretion. Thompson Mach. Commerce Corp. v. Wallace, 687 So. 2d 149, 152 (Miss. 1997).
The trial court does not abuse its discretion in granting a motion in limine if the court
determines that (1) the material or evidence in question will be inadmissible at trial under the
rules of evidence; and (2) the mere offer, reference, or statements made during trial
concerning the material will tend to prejudice the jury. Whittley v. City of Meridian, 530
So. 2d 1341, 1344 (Miss. 1988) (adopting the test set forth by the Kansas Supreme Court in
State v. Quick, 226 Kan. 308, 311, 597 P.2d 1108 (1979)). For questions of law, this Court's
standard of review is de novo. Saliba v. Saliba, 753 So. 2d 1095, 1098 (Miss. 2000).
ANALYSIS
I. IN VIEW OF THIS COURT’S OPINIONS IN ACCU-FAB &
CONSTRUCTION, INC. v. LADNER, 778 So. 2d 766 (Miss. 2001)
AND MACK TRUCKS, INC. v. TACKETT, 841 So. 2d 1107 (Miss.
4
2003), IS IT ERROR TO PROVIDE FOR THE JURY, ON THE
FORM OF THE VERDICT, TO APPORTION OR ALLOCATE
FAULT WITH RESPECT TO AN IMMUNE EMPLOYER?
¶7. As Ware concedes in his Reply Brief, the answer to this question was definitively
answered in the negative by this Court’s decision in Mack Trucks, Inc. v. Tackett, 841 So. 2d
1107 (Miss. 2003) (Mack Trucks II). In Mack Trucks II, we held: “[t]o the extent that Accu-
Fab1 may be construed as stating that immune parties may not be assessed fault (as opposed
to liability) under § 85-5-7, therefore, that opinion is overruled.” 841 So. 2d at 1115 (¶ 28).
The Legislature addressed this issue by a 2002 amendment to Miss. Code Ann. § 85-5-7 which
states in its entirety:
Except as provided in subsection (6) of this section, in any action involving joint
tort-feasors, the trier of fact shall determine the percentage of fault for each
joint tort-feasor, including named parties and absent tort-feasors, without
regard to whether the joint tort-feasor is immune from damages. For
noneconomic damages, a defendant's liability shall be several only. For
economic damages, for any defendant whose fault is determined to be less than
thirty percent (30%), liability shall be several only and for any defendant whose
fault is determined to be thirty percent (30%) or more, liability shall be joint
and several only to the extent necessary for the person suffering injury, death or
loss to recover fifty percent (50%) of his recoverable damages. Fault allocated
under this subsection to an immune tort-feasor or a tort-feasor whose
liability is limited by law shall not be reallocated to any other tort-feasor.
Miss. Code Ann. § 85-5-7(8) (emphasis added).2 Although this amendment was not effective
until January 1, 2003, after the incident involved in the case sub judice, we simply acknowledge
its existence to assure the reader that the amended statute has not been overlooked. However,
this amended statute has not been applied to the case before us today, nor do we by mentioning
1
Accu-Fab & Constr., Inc. v. Ladner, 778 So. 2d 766 (Miss. 2001).
2
The entire text of Miss. Code Ann. § 85-5-7(8) was adopted by the 2002 Legislature, in special
session. The prior subsection (8) now appears as § 85-5-7(9).
5
this amended statute in any way imply what position we may take when called upon in future
cases to consider the appropriateness of its application.
¶8. On the other hand, Ware is correct in his assertion that the resolution of this issue does
not enlarge Entergy’s rights on the allocation of fault under Miss. Code Ann. § 45-15-13(2),
which provides:
There is hereby created a right of action on behalf of any electric utility which
is required to pay any sum for injury or death of any person resulting from
contact with a high voltage overhead line against any person whose negligence
is a proximate contributing cause of such injury or death for that portion of any
non-agreed judgment for damages rendered against and paid by the electric
utility and attributable to the negligence of such person, however, the electric
utility may not recover any portion of such sum which is attributable to its
own negligence. The right of action created hereby shall not be available against
persons who comply with the provisions of this chapter, and violations of this
chapter shall not be considered negligence per se but may be considered as
evidence of negligence.
(emphasis added). Inasmuch as this issue has already been decided in Mack Trucks (II), the
trial court was correct in granting Entergy's motion in limine relative to the allocation of fault
to the immune employer.
II. DOES THE POLICY FOR THE EXTENSION OF UNDERGROUND
ELECTRIC DISTRIBUTION FACILITIES SUBMITTED BY
MISSISSIPPI POWER & LIGHT COMPANY (PREDECESSOR TO
ENTERGY MISSISSIPPI, INC.) APPROVED BY THE MISSISSIPPI
PUBLIC SERVICE COMMISSION ON AUGUST 14, 1996,
PROHIBIT ENTERGY FROM INSTALLING UNDERGROUND
DISTRIBUTION LINES?
¶9. The trial court entered an order prohibiting any testimony as to whether Entergy could
have, or should have, placed the high voltage lines underground. Entergy asserts that it was
prohibited under the filed rate plan from placing the high voltage power lines underground
unless the customer (City of Natchez) was willing to pay the expense for doing so. By granting
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Entergy’s Fourth Motion in Limine (which is the second of two motions in limine we address
today), the trial court excluded all testimony and evidence (1) that Entergy had the duty or
authority to place the power line in question underground and (2) that utilities in other states
put power lines underground.
¶10. Plaintiff’s Second Amended Complaint alleges inter alia that Entergy was negligent in
the placement and maintenance of the high voltage power lines. Specifically, Ware asserts that
the high voltage line was placed after the installation of the MDOT break-away light posts and
was at a dangerously lower height. As already stated, the fatal accident occurred after a crew
had taken the light post down, made repairs, and was putting the light post back in place. Ware
asserts that Entergy should have, or could have, placed the high voltage line underground rather
than overhead.
¶11. Entergy asserts that, under Miss. Code Ann. § 77-3-35 and the Policy For The Extension
of Underground Electric Distribution Facilities filed with the Public Service Commission
(PSC), Entergy is not entitled to or authorized to place a power line underground unless the
customer agrees to pay for such. Section 77-3-35 states, in part:
No such public utility shall directly or indirectly, by any device whatsoever, or
in anywise, charge, demand, collect or receive from any person or corporation
for any service rendered or to be rendered by such public utility a greater or less
compensation than that prescribed in the schedules of such public utility
applicable thereto then filed in the manner provided in this section, and no
person or corporation shall receive or accept any service from any such public
utility for a compensation greater or less than prescribed in such schedules.
The Policy For The Extension of Underground Electric Distribution Facilities provides, in
pertinent part:
7
Economic, physical and technical considerations normally dictate the use of
overhead electric distribution facilities in the Company’s Operating Area.
There are some circumstances, however, where it is feasible and practical for
the Company to install portions of its distribution facilities underground.
There are other circumstances where the value to the property owners of having
the electric distribution and service facilities installed underground will
outweigh the added costs and other possible disadvantages of such installation.
(emphasis added)
(Filed: July 2, 1986, effective date: August 14, 1986.) Entergy contends that PSC approval of
the policy defining its rate has the force and effect of state law. Entergy relies on Miss. Code
Ann. § 77-3-3(e) (defining rate) and Tucker v. Hinds County, 558 So. 2d 869, 875 (Miss.
1990) (“MP&L argues that these rules have the effect of law and there is authority that certain
administrative rules have the force of law." (citing Standard Oil Co. of CA v. Johnson, 316
U.S. 481, 484, 62 S. Ct. 1168, 1169-70, 86 L. Ed. 1611 (1942) (War Department regulations);
see also United States v. Mississippi Power & Light Co., 638 F.2d 899 (5th Cir. 1981);
Green v. United States, 460 F.2d 412 (5th Cir. 1972)). Entergy also relies on a decision of
the Mississippi Public Service Commission in Bounds Building Co., Inc., Bob Pigford and
Robert Corey, and Mississippi Power Company, Docket No. 94-UA-0777, wherein the PSC
held that a repealed ordinance of the City of Meridian requiring Mississippi Power Company
to place distribution lines to new subdivisions underground at no cost to the subdivider
improperly established the method to charge and the charge itself, both of which are within the
exclusive, original jurisdiction of the PSC. Conversely, Ware asserts that the filed rate
permits Entergy to place the high voltage lines underground, at its own expense, “where it is
feasible and practical for the Company” to do so.
8
¶12. The question is whether the filed-rate doctrine is applicable to this case. Entergy relies
on our decision in American Bankers Ins. Co. of Florida v. Alexander, 818 So. 2d 1073,
1084-85 (Miss. 2001), for the proposition that the “filed-rate doctrine is applicable to cases
in which a court is called upon to determine, either directly or indirectly, what a reasonable
rate should be, or ‘second guess’ the rate making agency.” In Alexander, we held that the
filed-rate doctrine did not bar the plaintiffs' claims against a secured lender and collateral
protection insurer in an action to recover for overcharged premiums.
¶13. We have addressed the filed-rate doctrine in but one other case since Alexander. We
held:
Under the filed rate doctrine, any "filed rate"--that is, a rate approved by the
governing regulatory agency--is "per se reasonable and unassailable in judicial
proceedings brought by ratepayers." Wegoland Ltd. v. NYNEX Corp., 27 F.3d
17, 18 (2d Cir.1994); United Gas Pipe Line Co. v. Willmut Gas & Oil Co., 231
Miss. 700, 718, 97 So. 2d 530, 535 (1957) (petitioner "can claim no rate as a
legal right that is other than the filed rate, whether fixed or merely accepted by
the Commission, and not even a court can authorize commerce in the
commodity on other terms") (quoting Montana-Dakota Utils. Co. v.
Northwestern Pub. Serv. Comm'n, 341 U.S. 246, 251, 71 S. Ct. 692, 695, 95
L. Ed. 912 (1951)).
American Bankers' Ins. Co. of Fla. v. Wells, 819 So. 2d 1196, 1203-04 (¶ 23) (Miss. 2001).
¶14. We find that the filed-rate doctrine does not apply here because the Policy does not
prohibit Entergy from placing the high voltage lines underground at its own expense “where it
is feasible and practical for the Company” to do so. We further find that the rate policy filed
with the PSC does not prohibit Entergy from placing the high voltage lines underground at its
own expense. Therefore, we are constrained to find that the trial court abused its discretion
9
by excluding evidence and testimony related to the feasibility of Entergy placing its power line
underground.
III. CAN A MISSISSIPPI PUBLIC SERVICE COMMISSION
APPROVED POLICY SUPPLANT OR MODIFY ENTERGY’S
DUTY TO MAKE AN INSTALLATION SAFE CONTRARY TO THIS
COURT’S HOLDING IN Entergy Mississippi, Inc. v. Burdette Gin
Co., 726 So. 2d 1202 (Miss. 1998)?
¶15. Ware next argues that Entergy's duty to make the installation of the high voltage line
safe is not modified or supplanted by the PSC approved rate policy. Ware contends that
regardless of what rate is charged to customers, Entergy still has to adhere to the duty of care
set forth by this Court's decisions. In response, Entergy invites this Court to clarify the
standard of care which it owes the general public in light of the legislative amendments
subsequent to our decision in Entergy Mississippi, Inc. v. Burdette Gin Co., 726 So. 2d 1202
(Miss. 1998). In Burdette Gin, we held that public policy in Mississippi required utilities to
exercise “a very high degree of care in protecting the public from the dangers of electricity”
and that an indemnity clause approved by the PSC “was void as a matter of public policy,
because it unnecessarily shielded Entergy from its own potential negligence in constructing
and maintaining its electrical lines.” Burdette Gin, 726 So. 2d at 1208 (¶ 17).
¶16. In 2002, well after the underlying incident, the Mississippi Legislature amended Miss.
Code Ann. § 11-27-43, to include a duty of care. As amended, the statute reads as follows:
(1) All companies or associations of persons incorporated or organized for
the purposes set forth in Section 11-27-41 are authorized and
empowered to erect, place and maintain their posts, wires and conductors
along and across any of the public highways, streets or waters and along
and across all turnpikes, railroads and canals, and also through any of the
public lands, and to do such clearing as may be reasonably necessary for
the proper protection, operation and maintenance of such facilities,
10
provided in all cases such authorization shall meet the requirements of
the National Electrical Safety Code. The same shall be so constructed
and placed as not to be dangerous to persons or property; nor interfere
with the common use of such roads, streets, or waters; nor with the use
of the wires of other wire-using companies; or more than is necessary
with the convenience of any landowner.3
(2) The duty of care owed to the public by owners and operators of public
utility facilities located adjacent to a highway, road, street or bridge in
this state is satisfied when:
(a) With respect to state highways, the public utility facilities
comply with the provisions of the applicable edition of the
National Electrical Safety Code for structure placement
relative to roadways.
Miss. Code Ann. § 11-27-43 (Supp. 2003). Entergy asserts that this amended statute overrules
the standard set forth in Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721 (Miss.
1998).4
¶17. Prior to our decision in Lumpkin, the standard of care placed on public utility
companies in the maintenance of structures on the rights-of-way of public roads was that which
was set forth in Vines v. Southwestern Elec. Power Ass’n, 241 Miss. 120, 129 So. 2d 396
(1961). In Vines, a guest passenger was killed when the car which he occupied left the traveled
portion of the road, went 150 feet in a ditch, and collided with a power line pole which was
located approximately 4 feet from the traveled portion of the road. All four occupants of the
3
Prior to the 2002 amendment, the statute ended here.
4
As will be fully discussed later in this opinion, our decision in Lumpkin was by way of a plurality
opinion. Also, we note that the 2002 amendment to Miss. Code Ann. § 11-27-43 (an eminent domain
statute) became effective from and after July 1, 2002, and thus is not applicable to the case sub judice. We
acknowledge the amended statute’s existence and discuss it here since Entergy has discussed this amended
statute in its brief.
11
car, including the driver, had been drinking beer. The light pole collapsed and the energized
power line fell to the ground. Vines exited the vehicle, came into contact with the downed
power line, and was electrocuted. In citing the predecessor statute to Miss. Code Ann. § 11-
27-43, we stated, inter alia:
In the case at bar the pole was not within that portion of the right-of-way
designed for public travel and no one making the ordinary use of the road and
exercising reasonable care and caution would travel where the pole was located.
**********
The general rule established by the modern authorities is that a public utility
company lawfully maintaining a pole in or near a public highway is not liable for
the damage to a person or property resulting from a vehicle striking such pole,
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.5
**********
Viewing the facts in the case at bar in the light most favorable to [the wrongful
death beneficiaries], we are of the opinion that the sole proximate cause of the
death of Richard Vines was the negligence of the driver of the automobile and
the defect in the automobile. Even if the defect in the automobile made it
difficult or impossible for the driver to steer the car, there was no reason
whatsoever for him to continue traveling a distance of 150 feet outside the
traveled portion of the road without ever applying his brakes. This was not a
proper use of the highway.
**********
Of course, when they [power lines] are knocked down, they become dangerous,
but danger is not synonymous with negligence; and where the danger results
solely from the careless act of another in causing the power lines to be knocked
down, as was the case here, we do not think the degree of care required makes
it a jury case.
**********
We do not think the utility must guard against dangers resulting from vehicles
leaving the traveled portion of the highway and knocking down the power poles,
as already stated. Moreover, if the lines are knocked down, they must fall
some place. If they had fallen on the automobile, the danger may have been
greater. The fact that they fell in the highway was not the proximate cause of the
5
This is a quote from Clayborn v. Tennessee Electric Power Co., 20 Tenn. App. 594, 101
S.W.2d 492, 497 (1936).
12
death of Vines. The sole proximate cause was the manner in which the
automobile was driven.
241 Miss. at 128-30, 129 So.2d at 399-400.
¶18. In Lumpkin, the facts were remarkably similar to those in Vines. On a November night,
Tackett, who admitted to having consumed “four or five beers” that night, was driving several
passengers from Philip back to Greenwood on the Money Road. Tackett tried unsuccessfully
to negotiate a curve in the road, leaving the roadway and severing a utility pole which caused
the power lines to fall to the ground. One of the passengers, Kristen, exited the vehicle,
unaware of the fallen power lines. Kristen was shocked upon coming in contact with the fallen
power lines, but she miraculously survived; however, her injuries were severe – third degree
burns to the left wrist and severe burns which extended from her wrist to her shoulder, and
from her buttocks to her lower back area. She had very little flesh remaining on her left
forearm. Kristen eventually endured four operations, including one to amputate her left arm,
a portion of her left shoulder, and a portion of her chest. Because of the admittedly similar
facts in Lumpkin and Vines, we were requested in Lumpkin by Mississippi Power and Light
Company (MP& L), the owner of the power lines in question, to follow our prior decision in
Vines and thus exonerate it from any liability for Kristen’s injuries.
¶19. In a plurality opinion,6 we stated, inter alia:
6
The jury had returned a verdict awarding damages to Kristen in the amount of $750,000;
however, the jury found Kristen to be 50% at fault and MP&L to be 50% at fault. Remarkably, the jury
assessed no fault against Tackett, the driver of the car. Justice Banks authored the plurality opinion, and
he was joined by Presiding Justices Sullivan and Pittman. The plurality opinion reversed and remanded the
judgment on the jury verdict because the trial court erroneously excluded evidence of Tackett’s alcohol
consumption on the night of the accident. Justice McRae, concurred in part and dissented in part, finding
that the jury verdict should be affirmed in toto. Justice Smith concurred in part and dissented in part, finding
13
[W]e 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] answers the question as follows: if someone goes
off the maintraveled 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.
725 So. 2d at 726. The four-justice plurality in Lumpkin stated that it was overruling Vines,
and in so doing, held:
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 [v. Michigan State Highway Comm'n, 426 Mich.
46], 393 N.W.2d [332]at 339 [1986]; Scheel v. Tremblay, 226 Pa.Super. 45,
312 A.2d 45, 46 (1973).
Lumpkin, 725 So. 2d at 730 (¶ 44).
that Vines should not be overruled and thus finding that the judgment on the jury verdict should be reversed
and rendered based on Vines. Justice Smith was joined in his separate opinion by Chief Justice Prather
and Justice Roberts. Two justices did not participate, thus Lumpkin was decided on a 4-3 vote.
14
¶20. We could go further in addressing what precedential value we should afford the plurality
decision in Lumpkin, wherein four justices of this Court voted to overrule Vines, and adopt
a new standard as to the duty of utility companies in the placement of their poles or other
structures on the road rights-of-way. However, because of the herein discussed inapplicability
of Lumpkin and Vines to the case sub judice, we save that issue for another day.
¶21. We again mention, as already noted, that while the facts in both Vines and Lumpkin are
quite similar, the facts in the case sub judice, by comparison, are on the other hand quite
different. Today we are not confronted with intoxicated automobile drivers traveling off the
road and clipping light poles on the right-of-way, thus causing downed power lines, and guest
passengers exiting the vehicles and coming into contact with the downed power lines. Instead,
we are confronted today with facts revealing construction workers presumably experienced in
working with, and in close proximity to, energized powers lines, while working on MDOT’s
damaged underground power line, bringing a metal light pole into contact with a clearly visible
Entergy overhead power line – a power line which remained energized because no one ever put
Entergy on notice that repair work would be performed that day in an area in close proximity
to its overhead power line.
¶22. Entergy argues that the duty of care is met by compliance with the National Electrical
Safety Code (NESC) and not compliance with NESC as well as reasonable care. Entergy
asserts that because it met, or even exceeded, the NESC horizontal and vertical clearances,
Entergy cannot be held liable in this instance due to the overhead placement of the high voltage
lines. We find these assertions to be without merit. “Public policy in Mississippi requires
utilities to exercise a very high degree of care in protecting the public from the dangers of
15
electricity.” Burdette Gin, 726 So. 2d at 1208 (¶ 17); Miss. Power & Light Co. v. Shepard,
285 So. 2d 725, 729 (1973). There is also a duty on power companies to anticipate and guard
against events which may be reasonably expected to occur, and the failure to do so is
negligence, even though the power company may not anticipate the identical injury that occurs.
Id. at 729 (citing 29 C.J.S. Electricity § 38, at 1058-59 (1965)).
¶23. Miss. Code Ann. § 11-27-43, both before and after the 2002 amendment, requires, inter
alia, that (1) the NESC requirements are met, (2) the poles are constructed and placed as not
to be dangerous to persons or property, (3) there is no interference with the common use of
such roads, streets, waters, or with the use of the wires of other wire-using companies, and (4)
the construction does not unnecessarily inconvenience any landowner. Subsection (1) of Miss.
Code Ann. § 11-27-43 remains unchanged as it has at least since the adoption of the 1972
code.7 Even today, the Legislature still places on the public utility companies the
responsibility of the placement and maintenance of its poles and wires in compliance with
NESC in such a way as to “not be dangerous to persons.........nor interfere...........with the use
of the wires of other wire-using companies....” Miss. Code Ann. § 11-27-43(1) (Supp. 2003).
¶24. The NESC provides minimum guidelines and “the basic provisions that are considered
necessary for the safety of employees and the public under the specified conditions” but are
“not intended as a design specification or as an instruction manual.” NESC, Section 1, ¶ 010.
We have previously recognized that a violation of the minimum standards established by the
NESC constitutes negligence per se. See Gifford v. Four-County Elec. Power Ass'n, 615
7
As noted in the amendment notes in the current code supplement, the 2002 amendment
“designated the former paragraph as (1) and added (2) through (4).”
16
So. 2d 1166, 1173 (Miss. 1992). We have held that there is no negligence per se for a utility
company who has complied with the minimum safety standards of the NESC but that
compliance is not conclusive as to the question of due care under particular circumstances.
Galloway v. Singing River Elec. Power Ass’n, 247 Miss. 308, 152 So. 2d 710, 712 (1963).
¶25. We find that even prior to the 2002 amendment, the Legislature intended that
compliance with NESC is sufficient, so long as the compliance does not render a dangerous
situation to persons or property, nor interfere with the common usage of roads, streets, or
highways, nor interfere with the use of the wires of other wire-using companies. Thus, it is
appropriate to submit to the jury the issue of whether Entergy's placement of these uninsulated
high voltage lines in 1996 complied with Entergy's duty of care as set out herein by statute and
the NESC, when read in pari materia, as well as our case law.
IV. IS THE INTERNAL MEMO PRODUCED BY ENTERGY DATED
SEPTEMBER 9, 1996, ADMISSIBLE UNDER M.R.E. 401 and
M.R.E. 402 ON THE SUBJECT OF ENTERGY’S
CONSIDERATION OF FEASIBLE ALTERNATIVE LOCATIONS
FOR ITS ELECTRICAL LINES WHICH WERE LESS
DANGEROUS IN ACCORD WITH THE DECISION IN Mississippi
Power & Light Company v. Lumpkin, 725 So. 2d 721 (Miss. 1998)?
¶26. While we have reversed the trial court’s grant of the motion in limine concerning
Entergy’s standard of care, we feel compelled to address the separate issue of the admissibility
of the Entergy internal memorandum which Ware proposes to offer into evidence on the
standard of care issue. In moving to have the Entergy internal memorandum excluded, Entergy
asserted that the memo was inadmissible under M.R.E. 401 and 402. The memorandum,
written by Forest Persons, on September 9, 1996, stated, inter alia (1) that in essence it was
nothing more than a status report on the Canal Street Project in Natchez; (2) that MP&L had
17
agreed “in part” to do certain things (we do not know what MP&L had agreed in part to do); (3)
that certain proposals (“non binding talking points”) had been made to the city engineer; and
(4) that both Persons and the city engineer had agreed that they had no authority to make any
binding decisions.
¶27. Ware asserts that this Entergy memorandum indicates that Entergy was willing to place
the high voltage line underground at its own expense at the same location where the
electrocution took place.
¶28. Entergy asserts that the memorandum is not admissible under M.R.E. 401 and 402.
M.R.E. 401 states:
"Relevant Evidence" means evidence having any tendency to make the existence
of any fact that is of consequence to the determination of the action more
probable or less probable than it would be without the evidence.
M.R.E. 402 states:
All relevant evidence is admissible, except as otherwise provided by the
Constitution of the United States, the Constitution of the State of Mississippi,
or by these rules. Evidence which is not relevant is not admissible.
¶29. Ware counters that Entergy had placed at issue the underground installation as a feasible
alternative through the affidavit of Phil Tigrett and the expected testimony of Entergy's expert
Allen L. Capp. We disagree. First of all, this internal memorandum is not relevant to the issues
before the trial court, and ultimately the jury. Additionally, one important part of the equation
is missing. While M.R.E. 401 and 402 are certainly critical to our discussion, and assuming
arguendo that this internal memorandum is relevant, M.R.E. 403 is the ultimate filter through
which all evidentiary objections eventually flow. M.R.E. 403 states:
18
Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay, waste of
time, or needless presentation of cumulative evidence.
Simply because there may have been discussions and consideration given to the possible
underground installation of power lines by Entergy is of no moment as to the issue of whether
Entergy violated the appropriate standard of care in the overhead installation of its power lines
on Highway 84 leading to the Mississippi River bridge. When reading this internal
memorandum in its entirety, it is obvious that it could clearly mislead the jury as to the legal
obligations of Entergy, and thus any probative value of this supposed relevant evidence would
be outweighed by the danger of unfair prejudice, confusion of the issues, and misleading the
jury. Yoste v. Wal-Mart Stores, Inc., 822 So. 2d 935, 937 (Miss. 2002).
While the filed rate policy does not prohibit Entergy from placing the distribution line
underground and Entergy's employee may have expressed an opinion in an internal
memorandum that underground placement of the power lines was a feasible alternative, the
memorandum is not relevant to the issues before the trial court, and, even if relevant, this
internal memorandum is inadmissible when performing the required balancing test under
M.R.E. 403. The trial court thus did not abuse its discretion in finding that the Persons
memorandum was inadmissible.
CONCLUSION
¶30. For the foregoing reasons, the trial court's grant of Entergy's motion in limine relating
to the submission of fault of the immune employer to the jury is affirmed. While we reverse
the trial court's grant of Entergy's motion in limine relating to the feasibility of placing the
19
high voltage power lines underground, we do hold that the Persons internal memorandum on
this issue is not admissible. Thus, this cause is remanded to the Circuit Court of Adams
County for further proceedings in accordance with this opinion.
¶31. AFFIRMED IN PART; REVERSED IN PART; AND REMANDED.
PITTMAN, C.J., SMITH, P.J., WALLER AND COBB, JJ., CONCUR. GRAVES,
J., CONCURS IN RESULT ONLY. EASLEY, J., CONCURS IN PART AND DISSENTS
IN PART WITHOUT SEPARATE WRITTEN OPINION. McRAE, P.J., CONCURS IN
PART AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION. DIAZ, J., NOT
PARTICIPATING.
McRAE, PRESIDING JUSTICE, CONCURRING IN PART AND DISSENTING IN
PART:
¶32. Notwithstanding my agreement with the majority as to issues II and III, my disagreement
with the decisions rendered as to issues I and IV prevent me from full concurrence.
Accordingly, I concur in part and dissent in part.
Law At Time of Accident Controls
¶33. In its examination of the allocation of fault to an immune employer, the majority has
once again demonstrated the zealousness with which it is anticipating the several reforms
implemented by the Legislature in 2002. As we have seen in previous cases and will see for
the foreseeable future, the majority has a fascination with citing these measures as persuasive
or, as they have apparently done today, simply for the sake of doing so. However, it takes little
imagination or insight to observe the almost controlling weight they are given, even cases such
as the one before us, where the amendments are inapplicable.
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¶34. This case provides yet another example of this tactic. Instead of simply citing to the
portion of Mack Trucks, Inc. v. Tackett, 844 So. 2d 1107 (Miss. 2003), (Mack Trucks II),
where we held that fault was attributable to an immune employer, the majority has included a
portion of Miss. Code Ann. § 85-5-7(Supp. 2003) wherein the Legislature changed the law
regarding joint and several liability.
¶35. I raise this issue only to point out that Mack Trucks II actually involved the allocation
of fault to an immune party and the impact that allocation would have on the joint and several
liability of other defendants. There, despite an acknowledgment that the rules regarding joint
and several liability had been changed since the initiation of the suit, we reiterated that the non-
immune defendants were jointly and severally liable for up to 50% of the verdict even if they
possessed only a single percentage of fault. See id. at 1115-16. We stated "[w]hatever the
equity or inequity of the result... that was the law at the time of the accident, and that is the
result we are bound to impose." Id.
Relevant Evidence
¶36. The majority finds it appropriate to submit to the jury the issue of whether Entergy's
placement of the uninsulated high voltage lines in 1996 complied with Entergy's duty of care.
However, the majority finds one of the most crucial pieces of evidence, Entergy's internal
operating memorandum, inadmissible because it is not relevant. This holding is disingenuous.
¶37. The internal memorandum, presumably written in 1982, indicates that Entergy planned
to " [p]lace all facilities in the downtown area underground by December 31, 1996." This plan
of action was "deleted" by Mr. Persons in 1984, saving Entergy "several million dollars." The
location in which the electrocution took place would have had underground wiring if the plan
21
had not been "deleted." The internal memorandum is evidence that economic value was placed
first, before issues of safety, indicating the duty of care was breached. Therefore, the internal
memorandum is relevant evidence that a jury should be allowed to weigh when determining if
Entergy's placement of the power line is a danger to any companies that work near the power
line.
¶38. The majority relies heavily on Miss. Code Ann. § 11-27-43(1) (Supp. 2003) in which
the utilities must not only meet the requirements of the NESC but are also responsible for
constructing, placement, and maintenance of its posts, wires and conductors as such "not to be
dangerous to persons or property; nor interfere with the common use of such roads, streets,
or waters; NOR with the use of the wires of OTHER wire-using companies...." (emphasis
added). Notwithstanding, the majority states that the evidence is not relevant under M.R.E. 401
and 402 based on the premise that M.R.E. 403 trumps both M.R.E. 401 and 402 in that it "is
the ultimate filter through which all evidentiary objections eventually flow."
¶39. Citing Yoste v. Wal-Mart Stores, Inc. 822 So. 2d 935, 937 (Miss. 2002), the majority
offers that the jury would be misled (if it were to read the internal memorandum in its entirety)
as to the legal obligations of Entergy and, therefore, not only confuse the issues but also
prejudice Entergy by placing legal obligations upon it which it did not have. However, the
majority already made clear that the obligations and "duty" owed under Miss. Code Ann. § 11-
27-43(1) did not interfere with other wire-using companies. This imposes a duty of safety for
other workers in the field, which Entergy failed to comply with as it based its decision on not
installing the wires underground on economic reasons and foregoing safety concerns. Thus,
this issue under M.R.E. 403 should go to the jury.
22
¶40. As the trier of fact, it is for the jury to decide whether Entergy breached the applicable
standard of care. Any relevant evidence will be biased because that is the purpose of
presenting the information on their point. Entergy placed this in issue and if it chose because
of economic value ( and not safety factors) not to put the wiring underground, then it is
relevant evidence to present to a jury for its consideration in making its final decision.
¶41. Additionally, the relevance of Entergy's internal memorandum and like information
would be enhanced were the defendant's experts to testify as to the standard of care. This
would "open the door" for cross examination as to the defendant's knowledge and whether they
considered alternatives to the actions that were eventually taken.
¶42. In summation, I wish to note my disagreement with this Court's treatment of
Mississippi Power & Light Co. v. Lumpkin, 725 So. 2d 721 (Miss. 1998) wherein we
overruled this Court's earlier decision of Vines v. Southwestern Elec. Power Ass'n, 129 So. 2d
396 (1961). The Lumpkin Court overruled Vines, and this Court should appropriately do the
same.
¶43. Accordingly, I concur in part and dissent in part.
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