Deborah McFarland v. Entergy Mississippi, Inc. ( 2003 )

IN THE SUPREME COURT OF MISSISSIPPI
NO. 2003-CT-00538-SCT
DEBORAH McFARLAND
v.
ENTERGY MISSISSIPPI, INC.
ON WRIT OF CERTIORARI
DATE OF JUDGMENT: 3/7/2003
TRIAL JUDGE: HON. W. SWAN YERGER
COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT
ATTORNEYS FOR APPELLANT: ROBERT W. SNEED
ATTORNEYS FOR APPELLEE: JOHN H. DUNBAR
WALTER ALAN DAVIS
NATURE OF THE CASE: CIVIL - PERSONAL INJURY
DISPOSITION: THE JUDGMENT OF THE COURT OF
APPEALS IS REVERSED, AND THE
JUDGMENT OF THE HINDS COUNTY
CIRCUIT COURT IS AFFIRMED-10/06/2005
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
EN BANC.
SMITH, CHIEF JUSTICE, FOR THE COURT:
¶1. Thomas R. McFarland 1 sued Entergy Mississippi, Inc. in the Circuit Court of the First
Judicial District of Hinds County, Mississippi, for injuries McFarland received while driving
a truck which collided with a sagging transmission line maintained by Entergy, in Leland,
1
During the appeal of this case, Deborah McFarland was substituted as plaintiff, due
to the death of Thomas R. McFarland. McFarland’s death was the result of circumstances
unrelated to this case.
Mississippi. A motion for directed verdict by Entergy was denied, and the jury returned a
verdict for the McFarland in the amount of $300,000.00.
¶2. Entergy filed post trial motions, including a Motion for Judgment Notwithstanding the
Verdict (“JNOV”) and in the Alternative, for New Trial. The trial court then granted Entergy’s
Motion for JNOV, and held that the motion for new trial was granted in the event that the JNOV
was overturned on appeal.
¶3. McFarland appealed, and the Court of Appeals reversed the trial court’s grant of the
JNOV and remanded for a new trial. McFarland v. Entergy, No. 2003-CA-00538-COA, 2004
WL 2283607, at *7. McFarland filed a petition for certiorari in this Court seeking review of
the Court of Appeals’ decision not to review the trial court’s conditional grant of a new trial,
as provided in Rule 50 of the Mississippi Rules of Civil Procedure. Entergy also filed a
petition for certiorari in this Court seeking review of the Court of Appeals’ decision to reverse
the JNOV. Both petitions for certiorari were granted.
¶4. After thorough review, this Court holds that the Court of Appeals incorrectly held
Entergy to a higher standard of care. The jury, however, was instructed that only a degree of
ordinary care was required under these facts. We also hold that the trial judge was correct in
granting Entergy’s Motion for a JNOV and the Court of Appeals erred when it reversed the trial
court’s grant of the JNOV and remanded the case for a new trial. Finally, we hold that
McFarland waived the remaining issues concerning the conditional grant of a new trial.
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FACTS
¶5. On February 9, 1994, a severe ice storm struck the Mississippi Delta causing extensive
damage. The ice storm caused trees to fall and limbs to snap, as well as downing power lines
throughout the area. The area involved was roughly one hundred fifty miles long and fifty miles
wide, stretching from DeSoto County to the Sharkey County line and eastward through Leflore
County. In total, the storm affected an area of approximately 5,200 square miles.
¶6. There were hundreds of miles of downed power lines including over 25,000 poles and
hundreds of miles of downed transmission lines. Numerous towns, cities, and untold
thousands of individuals throughout the area went without power for weeks. Even on the date
of the accident, five days after the storm commenced, there remained nineteen cities and towns
without power and 45,000 Entergy customers in Washington County alone without power.
Approximately 2,500 additional electrical power workers from other companies and
surrounding sister states were sent in to help with this disaster. Additionally, thousands of
volunteers were involved in helping with cleanup and repair in the various affected
communities. For the first time ever, Entergy lost steel structure transmission poles. Over
100 transmission line structures alone had to be repaired by specialized crews. A priority
system was initiated for restoring power: hospitals, water systems, municipal services,
sheriff’s and police offices, sewer systems, then all others. Helicopter surveys conducted by
Entergy revealed that approximately 80% of a twenty mile stretch of transmission lines,
running from Indianola to Greenville, were flattened to the ground. The same survey, however,
did not reveal any problem with the site at issue because, as the testimony revealed, a sagging
line could not be detected from the air as easy as a flattened line lying on the ground.
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¶7. Before the accident occurred on February 14, 1994, at approximately 3:30 p.m.
former Deputy Sheriff Tony Sullivan testified that he observed a sagging transmission line over
North Main Street in Leland, Mississippi. Sullivan also testified that he informed a man about
the sagging line who was sitting in a truck with the MP&L (Entergy’s predecessor) logo on its
side.
¶8. Public travel advisories existed throughout the area warning drivers of downed power
lines and other open and obvious hazards. Ignoring those warnings, McFarland drove his
employer’s eighteen-wheeler into the Mississippi Delta during the night time. At
approximately 7:00 p.m as McFarland traveled at a speed of no more than 15 miles per hour
in the severely devastated area, he struck the dead transmission line which sagged
approximately eight feet above the roadway.
¶9. The following issues are before us:
I. Did the Court of Appeals Err When it Applied a High Standard of Care
to Entergy?
II. Did the Trial Court Err by Granting Entergy’s Motion for Jnov?
III. Do the Appellate Courts Have Jurisdiction to Determine Whether a Trial
Court’s Grant of a New Trial Is Appropriate When a Trial Court
Concurrently Enters a Jnov and a Conditional Grant of a New Trial, and
the JNOV Is Reversed on Appeal?
IV. Whether the Trial Court Erred by Granting, in the Alternative, Entergy’s
Motion for New Trial.
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DISCUSSION
I.
¶10. The Court of Appeals decision stated that “[t]he public policy of this State requires
‘utilities to exercise a very high degree of care in protecting the public from the dangers of
electricity’” McFarland at ¶11 (citations omitted). McFarland argues that the Court of
Appeals was correct to impose this higher standard of care upon Entergy, but also argues that
at trial Entergy was only held to a reasonable care standard, and therefore this issue is
irrelevant. Entergy argues that when the property or activity of the utility does not involve the
risk of electrocution, they should only be held to the duty of reasonable care. We agree.
¶11. Since 1907, this Court has held utility companies to a high standard of care.
“[C]orporations handling the dangerous agency of electricity are bound, and justly bound, to
the very highest measure of skill and care in dealing with these deadly agencies.” (emphasis
added). Temple v. McComb City Elec. Light & Power Co., 42 So. 874 (Miss. 1907). This
Court has also stated, “The degree of diligence which a distributor of electricity must observe
in the distribution of the dangerous agency of electricity is a very high degree of care.”
MP&L v. Shepard, 285 So. 2d 725, 729 (Miss. 1973) (emphasis added).
¶12. This high standard of care was imposed because of the life threatening dangers of
electricity. In Shepard, this Court quoted 26 Am. Jur. 2d Electricity, Gas and Steam § 42,
at 248-49 (1966), which stated:
The degree of care required to be used in the production, distribution, and use
of electricity is stated in various terms which, perhaps, convey merely one idea.
To declare that the utmost care must be used to prevent injury sound different
in statement than to say that ordinary care must be used in view of all the
circumstances; but when analyzed, the meaning is not far different, for the
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ordinary care required under the circumstances is, in its practical
application and in view of the highly dangerous character of electricity, a
relatively high degree of care.
285 So. 2d at 729. (emphasis added). Therefore, the degree of ordinary care required under
the circumstances, i.e. when dealing with the dangerous nature electricity, is a high degree of
care. “Moreover, the degree of care increases as the danger increases.” Id. The danger of a
live wire, is no doubt more dangerous than a wire without electricity; thus the high degree of
care should not be utilized unless such is required under the circumstances. In Spears v. Miss.
Power & Light, 562 So. 2d 107 (Miss. 1990), this Court utilized the reasonable care standard
when determining whether or not a power company had negligently placed a power pole in the
middle of a heavily traveled parking lot. Id. at 108. This Court also stated in Spears that,
“Reasonable care is the care a reasonable person would exercise under like circumstances.”
Id.
¶13. We find that utility companies should be held to a reasonable standard, i.e. they should
exercise the care that is reasonable in like circumstances. The degree of care that is
reasonable will either increase or decrease based upon various circumstances. When
circumstances involve live wires, we hold that the reasonable standard of care is elevated to
one of a high degree. However, if electricity is not present, the utility company should
exercise “reasonable care.”
¶14. After an examination of the record, it is apparent that the jury was instructed that
Entergy was to be held to a reasonable standard of care. In fact, both attorneys for McFarland
and Entergy referred to this standard of reasonableness in their closing arguments.
Furthermore, the jury instructions only referred to a reasonable standard of care. While the
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Court of Appeals erroneously imposed this higher standard, this standard had no impact at trial
because the jury was properly instructed that Entergy was to be held to a reasonable care
standard. Except for clarifications of the proper standard, the issue is irrelevant and therefore
Entergy’s appeal on this issue is without merit.
II.
¶15. The standard of review for a grant of a JNOV verdict is well settled:
A motion for a JNOV tests the legal sufficiency of the evidence supporting the
verdict, not the weight of the evidence. Tharp v. Bunge Corp., 641 So. 2d 20,
23 (Miss.1994). It asks the court to hold, as a matter of law, that the verdict may
not stand. Goodwin v. Derryberry Co., 553 So. 2d 40, 42 (Miss.1989) (citing
Stubblefield v. Jesco, Inc., 464 So. 2d 47, 54 (Miss.1984)). When a motion for
JNOV is made, the trial court must consider all of the evidence-not just
evidence which supports the non-movant's case-in the light most favorable to the
party opposed to the motion. If the facts and inferences so considered point so
overwhelmingly in favor of the movant that reasonable jurors could not have
arrived at a contrary verdict, granting the motion is required. Janssen
Pharmaceutica, Inc. v. Bailey, 878 So. 2d 31, 54 (Miss.2004).
White v. Yellow Freight System, Inc., 2004 WL 2903698, *2 (Miss. 2004).
a.
NOTICE
¶16. McFarland argues the facts in this case are sufficient to impose a duty upon Entergy.
However, utility companies only have a duty to “eliminate foreseeable danger.” Miss. Power
& Light v. Lumpkin, 725 So. 2d 721, 728-29 (Miss. 1998). While Entergy knew the ice
storm had created problems with many of their lines, they did not have knowledge that this
particular line was sagging and caused a potential hazard to drivers. This Court has stated that
“Time, place and circumstances must be taken into account.” Roberts v. Miss. Power & Light,
7
10 So. 2d 542, 543 (Miss. 1942). Whether Entergy owed a duty to McFarland turns on the
question of whether Entergy had notice of the dangerous condition.
¶17. The Court of Appeals relied heavily upon the allegation of “the fact that this
transmission line had been down for 5 days.” McFarland v. Entergy, No. 2003-CA-00538-
COA, 2004 WL 2283607, at *11. We note, however, that the record reveals that the line was
not down, but rather was sagging approximately 8 feet above the road. The record also reflects
that it was a physical impossibility for Entergy to have known where each and every downed
power line was located just days after this ice storm. This is true even though the record
reveals that Entergy conducted a helicopter flyover survey of the disaster area which failed to
reveal the sagging line in question. This storm brought down transmission lines and poles, a
first time event in Mississippi. Even more critically, the ice storm came in “waves,”
commencing on Feb. 9 and continuing on the 10th and 11th. In fact, looking solely to the
record, we do not know whether the line was even sagging for five days. What we do know,
according to Sullivan, is that someone apparently had placed barricades at the scene two days
prior to the accident, but the barricades were not there when Sullivan drove by the scene three
to three and a half hours prior to the accident. Thus, the record reflects that the line was
sagging at most two days prior to the accident; any additional time is mere speculation.
¶18. Former Deputy Tony Sullivan claims to have reported the sagging line to a man sitting
in a truck with an MP&L logo on it while parked on the side of North Main Street. If this
testimony of Tony Sullivan is taken as true, we must consider the rest of the material facts.
For example, Sullivan could not identify the individual or even recall what he said. In fact, the
individual easily could have been one of the many volunteers riding with and assisting these
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crews. Although the record reflects that Sullivan had the “impression” that they “would take
care of it,” the record reflects that the trial judge excluded Sullivan’s understanding of the
conversation.
¶19. We find that these facts fail to satisfy the condition precedent of notice to Entergy.
Entergy has consistently denied any notice whatsoever in this case. The learned trial judge held
the only evidence McFarland provided indicating any notice was the testimony of Sullivan
concerning an unidentified person sitting in a truck having an MP&L logo and parked on the
side of the roadway near a substation. There is no proof that this person was an Entergy
employee, a service man, or that he was even the driver of the truck. We do not know from this
record anything about the individual, as the record was insufficient and poorly developed on
this issue. No proof was offered as to this person’s direct or apparent authority; therefore, the
judge correctly held the evidence was insufficient to establish notice to Entergy.
¶20. This Court has dealt with a “sagging line” case previously. In Delta Elec. Power Assoc.
v. Burton, 240 Miss. 209, 217-19, 126 So. 2d 258, 260-61, suggestion of error overruled,
240 Miss. 209, 223, 126 So. 2d 866 (1961), this Court held an electric company was on
notice when the electric company’s service men, who were clearly identified, actually saw the
dangerous condition. However, the facts in the case at bar differ in that not only was the
individual in the truck not positively identified as an Entergy service man, but also there is no
proof that any service man actually saw the dangerous condition. Furthermore, the facts in the
case at bar are unlike those where this Court found evidence that an electrical wire was in a
dangerously low position over a street and that “the dangerous condition had existed for ten
9
days or two weeks.” Miss. Power Co. v. Thomas, 162 Miss. 734, 140 So. 227 (1932). This
Court went on to say:
Taking, however, the shorter period of time first mentioned, that is to say, one
week, we do not hesitate to say that, as a matter of law, this was a period of time
sufficient to charge the company with constructive knowledge. To hold
otherwise would be either to deny the duty of inspection, or else to say that the
periods thereof could be so far apart as to be of little practical value.
Id.
¶21. In Thomas, this Court was faced with a single sagging line which had existed 7, or 10
to 14 days, where as a matter of law, this Court could find constructive notice applied. Id. The
lone sagging line in that case should have been discovered within that time frame. However,
in the case at bar, with miles of downed power lines and poles, we know that Entergy conducted
a line inspection via a helicopter flyover survey and was attempting to find all of its downed
or damaged lines. Further language in Thomas is also instructive as the Court noted “it
follows that there is a duty on these electric companies to make inspections of their wires and
equipment. We do not hold that this obligation requires a constant inspection, nor do we
attempt to say how often such an inspection shall be made.” Id. (emphasis added). Here,
subsequent to a major disaster, Entergy was doing all that it could to discover and repair its
downed power lines and poles. We find that there was insufficient proof of actual notice to
Entergy. Also, under the facts of this case ,“taking the shorter period of time we do not
hesitate to say that as a matter of law,” this two day delay was not a sufficient period of time
to charge Entergy with constructive notice of the sagging line. Id. We also look to our sister
states for guidance. The Supreme Court of Missouri has held “[i]f the electric company has
not received actual notice that its lines are down, the utility must still discover the danger and
10
cut the power within a reasonable time.” Grattan v. Union Elec. Com., 151 S.W.3d 59 (Mo.
2004). “Notice or a lack thereof, of course, affects the amount of time allowed as a
“reasonable opportunity” to remedy the problem. Id. See Thomas, 140 So. 2d 227.
¶22. Also, it is noteworthy that the Court of Appeals’ majority decision states “[o]ther
evidence offered at trial was sufficient to prove that Entergy either knew or should have
known of the low hanging power line.” (emphasis added). However, the Court of Appeals
decision does not tell this Court what that proof consists of, let alone who testified about it
or where it is located in the record. We have thoroughly reviewed the record and we find
nothing but the limited testimony of Tony Sullivan.
¶23. In the case at bar, first we note that the line was not energized. Second, the amount of
time this line was sagging during a major disaster is far short of what this Court in Thomas
considered as sufficient constructive knowledge. Notice only becomes a factual jury question
when there is sufficient evidence presented for a reasonable juror to find in the plaintiff’s
favor. We hold that Entergy did not receive notice of the sagging line.
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b.
¶24. This Court requires proof of “conduct on the part of the principal indicating the agent’s
authority.” See Am. Income Life Ins. Co. v. Hollins, 830 So. 2d 1230, 1237 (Miss. 2002)
(citing Andrew Jackson Life Ins. Co. v. Williams, 566 So. 2d 1172, 1180 (Miss. 1990). The
unidentified person could have been one of the thousands of volunteers, an off-duty meter
reader, or any one else involved in the massive clean up and repair operations. There is no
proof that the individual in the truck was an employee of Entergy, much less one possessing
either direct or apparent authority. Thus, McFarland’s evidence adduced is insufficient to
create notice to Entergy.
¶25. In the case at bar, there is no evidence of express (“direct”) authority on the part of the
individual in the MP&L truck as this person cannot be specifically identified by either Deputy
Sullivan or Entergy. An express agent is one who is “in fact authorized by the principal to act
on their behalf.” Cooley v. Brawner, 881 So. 2d 300, 302 (Miss. 2004). McFarland never
submitted sufficient proof that the individual was an employee of Entergy. This Court has
stated that “[t]he burden of proving an agency relationship rests squarely upon the party
asserting it.” Highlands Ins. Co. v. McLaughlin, 387 So. 2d 118, 120 (Miss. 1980).
McFarland failed to meet this burden and since Entergy has no knowledge of this person’s
identity, there is no proof of any express authorization. We find that express or direct
authority is also required to be proven for Entergy to be liable.
¶26. Nor is there sufficient evidence of apparent authority. Apparent authority of an agent
only binds the principal when the plaintiff can show “acts or conduct of principal indicating
agent’s authority, reasonable reliance upon those acts by third person, and detrimental change
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in position by third person as result of that reliance.” Eaton v. Porter, 645 So. 2d 1323, 1325
(Miss. 1994) (emphasis added). One can argue that Entergy gave this individual apparent
authority by putting that person in their company vehicle. However, Deputy Sullivan admitted
in testimony that he was aware of the presence of numerous volunteers in the area who were
assisting the electrical crews. Under these specific and unusual factual circumstances, it was
not reasonable for him to assume some individual sitting alone in an MP&L truck had the
necessary authority to correct the transmission line problem in this particular situation. We
find that McFarland failed to prove apparent authority.
c.
¶27. The ultimate question before us is whether Entergy is negligent under these facts. We
fail to see any negligence under the meager proof submitted by McFarland. McFarland has
failed to prove a breach, let alone the duty itself. Brown v. J.J. Ferguson Sand & Gravel Co.,
858 So. 2d 129, 131 (Miss. 2003). The effect of a finding in favor of McFarland would be
to place an extremely high burden of care on Entergy and similarly situated electric companies
when major disasters such as this one strike our state. The Court of Appeals’ finding that
Entergy exercised no care whatsoever for the public users of highways absolutely ignores and
distorts the overwhelming evidence. The fact of the matter is that Entergy did amazingly well
in response time and exhibited great skill, care and diligence in attempting to restore power
to a vast area of the state which suffered a very rare and unusual major disaster.
¶28. Unquestionably, the ice storm of 1994 can best be characterized as an “Act of God,”
of which Entergy had no control. Nor could Entergy have done anything to prevent or lessen
the end result. All Entergy could hope to accomplish under these circumstances was a quick
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mobilization of all its available workers, equipment and resources; to call for extra support
from surrounding companies in sister states; to seek volunteers to assist; and to use reasonable
ordinary due care in restoring power lines, poles, and electricity as soon as possible. Entergy
performed each of the tasks extraordinarily well according to this record. In MP&L v.
Shepard, 285 So. 2d 725, 741 (Miss. 1973), this Court stated “[a]lthough the [p]ower
[c]ompany iss required to do all things necessary in maintaining its lines as a reasonable person
would do under like circumstances for protection of public, it is not required to maintain its
lines in such a perfect condition as to prevent any and all accidents.” Thus, Entergy was
required to act only “to the extent of exercising reasonable care to correct or remove the cause
of danger if reasonably foreseeable and known to power company.” Id. at 729. The United
States Supreme Court has defined “Act of God” as a “loss happening in spite of all human
effort and sagacity.” The Majestic, 166 U.S. 375, 386, 17 S. Ct. 597, 602, 41 L. Ed. 1039(1897). This defense has been widely defined as “any accident, due directly and exclusively
to natural causes without human intervention, which by no amount of foresight, pains, or care,
reasonably to have been expected could have been prevented.” See Skandia Ins. Co., v. Star
Shipping, 173 F. Supp. 2d 1228, 1239 (S.D. Ala. 2001). However, the “Act of God” defense
“applies only to events in nature so extraordinary that the history of climatic variations and
other conditions in the particular locality affords no reasonable warning of them.” Id. (citing)
Warrior & Gulf Navigation Co. v. United States, 864 F.2d 1550, 1553 (11th Cir. 1989)
(citing to Bradford v. Stanley, 355 So 2d 328, 330 (Ala. 1978) (citing Gulf Red Cedar Co.
v. Walker, 132 Ala. 553, 31 So. 374 (1902)). “[A]n ‘Act of God’ is not only one which causes
14
damage, but one as to which reasonable precautions and/or the exercise of reasonable care by
the defendant, could not have prevented the damage from the natural event.” Skandia, 173 F.
Supp. 2d at 1240. “Act of God” does not apply if there is an intervening circumstance attributed
to the defendants. See Pub. Serv. Co. v. Sonagerra, 208 Okla. 95, 98, 253 P.2d 169, 171
(Okla. Sup. Ct. 1953). Here, Entergy exercised reasonable due care and precautions. Based
on the evidence set forth in the record, McFarland did not provide sufficient evidence to prove
duty, breach, or causation all of which are required in a negligence claim. Miss. Dep't of
Transp. v. Cargile, 847 So. 2d 258, 262 (Miss. 2003).
¶29. We also find that the Court of Appeals erred in concluding that there was enough
evidence to support a jury verdict for either party. When considering all of the evidence in
the light most favorable to McFarland, there is insufficient evidence to support the jury’s
verdict in his favor for the reason previously discussed. Therefore, the trial court’s grant of
the JNOV must stand. In this instance the jury verdict was incorrect. It was not based upon
legally sufficient evidence. The trial judge, who repeatedly expressed concerns about the
plaintiff’s proof of notice and lack of negligence by Entergy, ultimately rectified the situation
by awarding a JNOV or new trial in the alternative. Entergy is entitled to its JNOV.
15
III. & IV.
¶30. Initially, McFarland neither raised, addressed, nor briefed the issue of whether the trial
judge erred in the conditional grant of a new trial. The Court of Appeals handed down its first
version of its opinion on October 12, 2004. McFarland raised the issue before the Court of
Appeals for the first time on rehearing. As such, he waived these issues and is not now
permitted to raise them on certiorari during this appeal. Brewer v. State, 819 So. 2d 1169,
1175 (Miss. 2002); Irving v. State, 441 So. 2d 846, 854 (Miss. 1983) (“The issue may not
now be raised for the first time on a petition for rehearing and it is procedurally barred.”)
(citing Edwards v. Thigpen, 433 So. 2d 906 (Miss. 1983); Wheat v. Thigpen, 431 So. 2d 486(Miss. 1983). Accordingly, we apply the procedural bar.
CONCLUSION
¶31. Although the Court of Appeals incorrectly applied a higher standard of care to Entergy,
the jury was instructed to apply the standard of ordinary care. We also hold that because the
trial judge was correct in granting Entergy’s motion for a JNOV, the Court of Appeals erred
when it reversed the trial court’s grant of the JNOV. Furthermore, McFarland waived the
issues regarding the conditional grant of a new trial. This Court reverses the judgment of the
Court of Appeals and reinstates and affirms the trial judge’s judgment granting Entergy’s JNOV
motion.
¶32. THE JUDGMENT OF THE COURT OF APPEALS IS REVERSED AND THE
JUDGMENT OF THE HINDS COUNTY CIRCUIT COURT IS AFFIRMED.
EASLEY, CARLSON AND DICKINSON, JJ., CONCUR. GRAVES, J., DISSENTS
WITHOUT SEPARATE WRITTEN OPINION. RANDOLPH, J., CONCURS IN PART
AND DISSENTS IN PART WITH SEPARATE WRITTEN OPINION JOINED BY COBB,
P.J. WALLER, P.J. AND DIAZ, J., NOT PARTICIPATING.
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RANDOLPH, JUSTICE, CONCURRING IN PART AND DISSENTING IN PART:
¶33. The ice storm of 1994 was a catastrophe of a magnitude that Entergy had not heretofore
faced. Entergy is to be commended for its effort and hard work in restoring service to the
effected areas. Due to the circumstances surrounding the accident, not the least being that the
transmission line was de-energized, I agree with the majority that the standard of care Entergy
was to be charged with should be a reasonable standard. Thus, I concur with the majority
opinion that the Court of Appeals erred when it opined Entergy should be charged with the
highest standard of care.
¶34. However, I cannot join the majority regarding other issues. The facts sub judice were
first thoroughly considered and debated by twelve well-meaning, independent and objectively
minded jurors; and then a Circuit Judge, Judges of the Court of Appeals, and now this Court,
all likewise well-meaning, independent and objectively minded jurists who have considered and
debated the pertinent facts and applicable law. The jurors’ consideration of facts, both direct
and circumstantial, as well as all reasonable inferences which could be drawn therefrom, led
them to conclude Entergy was liable.
¶35. My consternation with the majority opinion, which I consider an assault upon and
deviation from the honored precedents established by former members of this Court, as well
as recent affirmations by members of the present Court in honoring the sanctity of jury
verdicts, except under very specific and very few exception, compels me to dissent.
¶36. The denial of Entergy’s motion for directed verdict by the trial judge, after McFarland
presented his case in chief, evinces that McFarland had successfully presented a prima facie
case for jury consideration, unless contradicted or overcome by other evidence. After both
17
sides rested, the Circuit Judge again refused to grant a directed verdict. It was only after the
jury returned a verdict for McFarland that the trial judge declared the proof was insufficient
and granted Entergy’s motion for JNOV. In Hollie v. Sunflower Stores, Inc., 194 So. 2d 217,
218 (Miss. 1967), this Court stated, “When a trial court sustains a motion for judgment
notwithstanding the verdict such action has the same effect as a directed verdict and the same
rules as to the scope of our review apply.” Neither the facts presented, nor applicable law,
relied upon by McFarland in his case in chief changed from the time the first motion for
directed verdict was denied. Neither the facts, nor applicable law, presented in Entergy’s
defense changed from the time Entergy’s motion for a directed verdict was denied a second
time. It was only after a jury verdict was rendered in favor of McFarland, did the trial court
determine that McFarland lacked substantial evidence to support the claim, and accordingly,
should take nothing; all because the trial judge was concerned with lack of notice, an issue that
was conceded by Entergy in argument at its first motion for directed verdict, and only enhanced
by the testimony of Entergy’s witnesses.
¶37. When this case was considered by the Court of Appeals, its learned judges, too,
travailed over the facts and applicable law. However, a clear majority of 6-2, with one judge
not participating, concluded the trial judge erred when he granted the JNOV, and declared a new
trial was in order, just as the trial judge had determined that a new trial was proper, but for a
different reason.
¶38. It is not that the facts are unknown or elusive that has created this dilemma. Rather the
controversy is created by differing interpretations of the same facts, some disputed, others not,
and what proper inferences may be drawn therefrom, which presents this clash of which party
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should ultimately prevail and resulting in a difference of opinion between the learned justices
of this Court and all judges who have undertaken duties related to this case. The majority
unfortunately now employs the draconian measure that there will be no new trial granted, and
in doing so, set aside a jury verdict, the trial court’s action of granting a new trial, and the Court
of Appeals’ decision to grant a new trial. Considering the same facts, the majority now states
there will be no new trial granted and McFarland’s widow shall take nothing.
¶39. Both lay and learned legal minds have considered and debated the facts, and have
struggled for a just result. However, it is abundantly clear that this endeavor is not one for the
judiciary, but rather, should be resolved by a jury. Unfortunately, this factual debate has
clouded the legal principles to be applied and resulted in the majority’s departure from both
long standing and recent precedent of this Court, some of which was established by the present
justices sitting on this case. As recently as 2004, many of the members of the majority
declared in Patterson v. Liberty Associates, L.P., 2004 WL 2823078, 8 (Miss. 2004), “We
refuse to become a thirteenth juror and substitute our judgment for that of a jury when
reasonable jurors could differ on the verdict from the evidence presented.” It is of no import
whether I or any other justice, had we been a juror, would have favored McFarland or Entergy.
What is of import is substitutional judgment.
¶40. The Court of Appeals recognized this principle in a case involving Entergy, and the
1994 ice storm. Based on the particular facts of that case, a jury returned a verdict for Entergy.
The Court of Appeals upheld the jury verdict, stating, “It is well-established that a jury verdict
in a civil case will not be disturbed on appeal unless the verdict was against the overwhelming
19
weight of the evidence....” Myles ex rel. Sparks v. Entergy Mississippi, 828 So. 2d 861, 869
(Miss. Ct. App. 2002).
¶41. The majority is misplaced in formulating certain conclusions from the facts presented.
A jury of twelve sworn impartial individuals were presented with these facts and found that
Entergy was responsible for the serious injuries suffered by Mr. McFarland. It is a well-
established principle that the jury should be the sole judges of fact. The right to a trial by jury
is guaranteed to every citizen of this state by Miss. Const. Art. 3, §31, and “the limited power
of the trial court to review a jury’s verdict is a function of constitutional mandate.” City of
Jackson v. Locklar, 431 So. 2d 475, 478 (Miss. 1983). Fact determination should be left to
reasoning of a jury of one’s peers. Indeed, Mississippi Model Jury Instruction §1:3 states, “As
sole judges of the facts in this case, you determine what weight will be assigned the testimony
and supporting evidence and the credibility of each witness in this case. You are required to
use your good common sense and sound, honest judgment in considering and weighing the
testimony of each witness. You are also permitted to draw such reasonable inferences from
the evidence as seem justified in light of your own experience.”
¶42. I will not restate the facts as contained in the majority opinion, however, testimony
which the jury had available to them, include the following facts, as well as additional pertinent
facts discussed supra:
a) The accident took place outside of Leland within 200 to 300 feet of an MP
& L (Entergy) substation, which was used to supply electricity to the city of
Leland .
b) The twenty mile transmission line at issue ran from Indianola to Leland.
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c) Although 2,500 additional power workers ostensibly assisted MP & L to
restore power, Robert Gramling, testifying on behalf of Entergy, states this
number of workers had not arrived until after the date of the accident.
d) The majority opines that Mr. McFarland ignored any travel advisories. There
is no proof in the record that any travel warnings were not heeded.
e) The record shows the accident took place at 7:23 p.m. on February 14, 1994.
f) Testimony was that the line was sagging six to eight feet over the roadway.
g) Tony Sullivan testified the MP & L employee was “operating the MP & L
truck” and referred to this person as the driver of the truck.
¶43. This Court has held that “except in the clearest cases questions of negligence are for
the jury. Of course, where the facts are disputed, negligence is a jury issue. And, even where
the facts are undisputed, where reasonable minds may reach different conclusions, negligence
is a jury issue.” Caruso v. Picayune Pizza Hut, Inc.,598 So.2d 770, 773 (Miss.
1992)(citations omitted). The case sub judice was decided by the collective wisdom of twelve
individuals. Uncharacteristically, the majority has superimposed its own fact finding and drawn
unsupported inferences and conclusions, which must necessarily be the result of speculation,
guesswork, and conjecture, in order to buttress its opinion; and furthermore, has inexplicably
failed to acknowledge pertinent uncontested facts. This Court has always required verdicts
should not be based upon such. Mississippi Model Jury Instruction §1:3 states, in pertinent
part, “It is your duty to determine the facts and determine them from the evidence produced
in open court. You are to apply the law to the facts and in this way decide the case...Your
verdict should be based on the evidence and not upon speculation, guesswork, and conjecture.”
Neither should an ultimate judgment of this Court.
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¶44. Due to the controversy caused by a fair, but different interpretation of the facts, a
judgment non obstante veredicto is not a matter that should be taken lightly by this Court. In
City of Jackson v. Locklar, 431 So.2d at 481, this Court stated, “The question is not what we
would have done had we been sitting as the jury but whether, considering the evidence in the
light most favorable to the plaintiff, together with all reasonable inferences which may be
drawn therefrom, we can say that no reasonable jury could, on these facts, have concluded
plaintiff’s damages were in the amount of $27,000.” This Court does not have to personally
agree with a verdict in order to affirm it. In my opinion, this case was properly and fairly
presented to a jury to resolve liability and the trial judge erred when he granted the motion for
JNOV.
¶45. The crux of this dispute is whether Entergy had notice of its downed transmission line.
Deputy Tony Sullivan testified he had informed an MP & L employee that the line was sagging
over a regularly traveled street. As a result of that conversation, Sullivan testified he was left
with the impression that Entergy would take care of the problem or put barricades around the
downed line, (i.e, warn of the extreme danger). Sullivan testified he spoke to a MP & L
employee, who was sitting in a MP & L truck near an MP & L substation, during regular
working hours, of the hazard located only 75 to 100 yards north of the substation. An Entergy
employee testified the sagging line was 200 to 300 feet from the substation. Sullivan could not
identify the employee by name as the trial took place some nine years after his conversation
with this person.
¶46. In Merchants Co. v. Tracy, 175 Miss. 49, 166 So. 340 (1936), this Court held, a big
M painted on the side of a truck, coupled with evidence that defendant's truck with a similar
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emblem painted on the side was seen within a mile of the accident, was sufficient to make a
jury issue as to the ownership of the truck and the relationship of master and servant, although
such relationship was denied by the defendant truck owner. Merchants has been the law in this
state for nearly seven decades. As such, a party should be entitled to reasonably rely on such
precedent. An attorney should be able to present his case without fear that this Court will
ignore the doctrine of stare decisis. In Merchants, this Court held that the operation of a
company’s commercial vehicle, during business hours, from the appellant’s place of
business created a rebuttable presumption that the vehicle was being operated for the purposes
of the company by an employee within the course and scope and in furtherance of its business
interests. The facts in Merchants parallel the facts presented in this case. Tony Sullivan
notified a person whom Sullivan testified was an employee of MP & L operating a MP & L
vehicle, during regular business hours, in close proximity to a sagging line, and in close
proximity to a MP & L substation, which, according to a witness for MP & L was fenced and
protected from the public. Sullivan also testified crews were working in this area. Merchants
states, “All the earmarks of the truck being under the control of the owner of the warehouse
are here present circumstantially.” Id. at 342. As in Merchants, this circumstantial evidence
created a rebuttable presumption which is best left to a jury. There was a rebuttable
presumption created as to the employment of the person in the MP & L vehicle, and the jury
resolved this presumption in favor of McFarland. This Court should not ignore its holding in
Merchants,
In light of what we have said it is hardly necessary for us to say that there was a
sharp, irreconcilable conflict in the evidence as to whether or not the appellant
operated a red truck at that time, but having held that the evidence was sufficient
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to go to the jury and having demonstrated that the jury was authorized to find for
the appellee from her evidence, we do not think this is a case where we would
be warranted in disturbing the verdict. We cannot apply the word
“overwhelming” to the facts of this case.
Id. at 343.
¶47. It is clearly the jury’s prerogative, indeed duty, to weigh all witness testimony, and to
accept or reject all or part, in order to reach its verdict. In fact all jurors are instructed as to
this very issue. Mississippi Model Jury Instruction §1:36 states, in part, “You have the duty to
determine the believability of the witnesses. In performing this duty you are the sole judges
of the credibility of the witnesses and the weight and worth of their testimony. You may, in
short, accept or reject the testimony of any witness in whole or in part.”
¶48. On the issue of notice and timeliness of same, the majority fails to address certain
testimony of Entergy witnesses. Dusty Holman, an Entergy transmission line engineer,
specifically stated that Entergy was aware of the hazard. Holman testified that as early as
February 10th, days before the accident, that Entergy knew 80% of the subject transmission
line between Indianola and Leland was down.
¶49. The majority fails to make the distinction between the danger posed by a downed
transmission line as opposed to the more common distribution lines. Robert Gramling, an
Entergy employee, testified that transmission lines carry from 115,000 to 500,000 volts of
electricity, whereas the more common distribution lines carry only up to 13,000 volts. He
further testified the high voltage transmission lines distribute power to substations, which are
fenced in and protected from the public. He further testified transmission lines are the size of
a man’s wrist, (a circumference of approximately eight inches), as opposed to a distribution
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line, which is the size of a man’s thumb, (approximately a three inch circumference). Holman
testified the tension required to suspend the transmission lines is far greater than distribution
lines.
¶50. Holman testified a foot patrol had been utilized by Entergy in other areas, and that this
foot patrol reported that “almost all of the transmission system within this radius was laying
on the ground.” It was also Holman’s testimony that he “sent out a helicopter patrol to
determine what the damage to the transmission system was.” However, Holman also testified
the helicopter was not “geared just to look at road crossings.” Furthermore, Holman stated no
one was sent to conduct an on the ground inspection of the transmission line where it crossed
road surfaces in order to identify hazards posed to motorists prior to the February 14th
accident. Holman admitted in his testimony that one is unable to tell from a helicopter
inspection without difficulty whether a transmission line is on the ground or eight feet above
it. Holman also testified he was aware of the substantial danger and potential damage to a
vehicle if a vehicle were to collide with a hanging transmission line.
¶51. Mississippi Power Co. v. Thomas, 162 Miss. 734, 140 So. 227, 228 (1932), states, “It
is a continuing duty of [an] electric company to maintain wires over streets in a manner not
dangerous to persons or property.” Indeed, our Legislature has spoken to the same issue in
Miss. Code Ann. § 11-27-43(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, provided in all cases such authorization shall
25
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.
¶52. As Holman’s testimony clearly evidences, Entergy was aware of the downed
transmission line on February 10th, days before this accident. Entergy had notice of the
downed line, even without Sullivan’s warning, and knowing such, had a duty to warn. Tony
Wiggs, an employee of Entergy, testified that when there is a dangerous traffic condition,
Entergy notifies law enforcement, civil service, sheriff’s deputies, police, or the Mississippi
Department of Transportation. However, Robert Gramling had earlier testified, on February
14th, no liaison had been established between Entergy and law enforcement, which Gramling
admitted was a longer time than their routine procedure.
¶53. Holman testified that a transmission line is under ten thousand pounds of tension, and
if anyone is nearby when a transmission line is cut, decapitation, loss of a limb, or possibly
even death could result. “The rule is well-settled that one charged with liability for negligence
cannot escape liability because a particular injury could not be foreseen, if some injury ought
reasonably to have been anticipated.” Delta Elec. Power Ass’n v. Burton, 240 Miss. 209, 126
So. 2d 258, 261 (1961) (quoting Cumberland Telephone & Telegraph Co. v. Woodham,
Miss. 318, 54 So. 890 (1911)). Holman’s testimony clearly shows that Entergy was aware of
the downed line and of the danger posed, and serious injury or death could result.
¶54. Since the tension on the line is so great, cutting the line is an extremely specialized
process. Holman testified it was necessary to place a “hold tag” on the line while working on
26
it, in order to give notice to other employees that the line was being repaired. The hold tag is
placed on the grounds with the conductors themselves, as well as being placed inside the
[sub]station. The testimony established the transmission line was down and de-energized at the
time of the accident, although the Leland area had power, which was furnished by Entergy and
metered at the same Leland substation. Therefore, the jury clearly could have concluded based
upon the evidence before it that an Entergy employee or someone Entergy designated would
have been responsible for de-energizing the line at the substation, 200 to 300 feet from the
downed line; and at a later point in time entered the substation to provide the Leland area with
power, as the power supplied was metered at the same substation. Entergy’s defense to the
rebuttable presumption addressed in Merchants was an outright denial that any employees
were at the Leland substation before the accident.
¶55. Each witness testifying on behalf of Entergy stated that to their knowledge, Entergy did
not have any crews working around the substation in the days leading up to the accident. Each
witness also testified that they were not personally in the Leland area prior to February 14th
in order to witness anything. However, Tony Sullivan’s testimony was that he witnessed crews
at the substation. Jimmy Perkins, testifying on behalf of Entergy, stated there was no written
documentation of where any of their crews were working at the time of the accident, as he
admitted “he did not know” where any crews were on the date of the accident or before. Jimmy
McDaniel gave testimony almost identical to that of Perkins on the whereabouts of Entergy
personnel, stating, “I do not know” if there were any personnel near the substation on February
14th. This conflict in facts is best left to a jury for determination; not this Court.
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¶56. Deputy Sullivan also testified that power had been restored to the city of Leland and that
businesses in the city were in operation. Gramling testified that Leland has its own municipal
power company; however, Entergy supplied the Leland municipal power company with power
through Entergy’s substation. Due to the high voltage involved and in transmission lines going
to the substation, the jury could have reasonably inferred that Entergy employees were at the
substation, first to de-energize the line, and later to restore service to the Leland substation,
even though this fact was denied by Entergy witnesses. Since power was restored, the jury
could likely infer the means by which this was accomplished: an Entergy employee or designee
entering the substation 200 to 300 feet from the downed line, which reasonably could be used
to corroborate Sullivan’s testimony.
¶57. Collectively, the testimony, along with the circumstantial evidence presented, created
issues of fact for the jury to decide. “In both civil and criminal cases, a verdict may be well
founded on circumstantial evidence alone.” James v. State, 45 Miss. (1871) It is the right of
the jury, a group of twelve individuals, with twelve different backgrounds to resolve any
conflicting testimony regarding notice to Entergy, whether actual or constructive. “The jury
may choose to believe or disbelieve, and accept or reject testimony of any witness. Conflicting
testimony creates factual dispute for the jury’s resolution.” Dunlap v. State, 883 So. 2d 145,
148 (Miss.Ct.App. 2004).
¶58. “Constructive knowledge is present where, based on the length of time that the
condition existed, the operator exercising reasonable care should have known of its presence.”
Waller v. Dixieland Food Stores, Inc., 492 So. 2d 283, 285 (Miss. 1986). It was the testimony
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of Holman that Entergy was aware on February 10th that the transmission line was down. As
the accident occurred at 7:23 p.m. on February 14th, a period of over 19 hours, and three 24
hour periods, February 11th, 12th, and 13th, and an unknown number of hours on February
10th, this was a period stretching over five days Entergy had notice of the dangerous condition.
¶59. In Mississippi Power v. Thomas, 140 So. at 228, this Court stated, “We do not hesitate
to say, as a matter of law, this [one week] was a period of time sufficient to charge the
company with constructive knowledge. To hold otherwise would be either to deny the duty of
inspection, or else to say that the periods thereof could be so far apart as to be of little
practical value.” A high voltage transmission line, the only transmission line running through
this area, was down for parts of five days. Whether or not this is a sufficient amount of time
to provide constructive notice was an issue that the jury should resolve and did resolve in favor
of McFarland.
¶60. There was more than sufficient evidence presented by McFarland to create a factual
question of notice for the jury. In its opinion, the majority explicitly states that Entergy has
“consistently denied any notice whatsoever in this case.” However, the majority fails to address
the explicit admission by Entergy during its argument on its first motion for directed verdict
at which time Entergy stated, “All the plaintiff has proved, Your Honor, is notice.”
¶61. The majority opines that Entergy exhibited superb skill during this catastrophe, although
no evidence in the record contains such language. Entergy argued and the majority opined, that
in the exercise of reasonable care under the circumstances, Entergy could not have repaired
or cut the line in time to prevent McFarland’s injury, even if they had had proper notice. I agree.
29
However, repair of the lines is not the only issue presented. The issue is whether Entergy failed
to warn Mr. McFarland or others similarly situated of its failure to warn of a known,
potentially lethal hazard. Although the cutting of transmission lines may be a hazardous and
complicated process that requires the implementation of a specialized crew, equipment, and
procedures, the accident occurred nearly five days after Entergy had notice that 80% of the line
was down, and had not taken steps to physically determine if any portion of that 80% presented
a hazard to the traveling public. Whether and when Entergy knew or should have known of the
specific low hanging line and whether it had time to eliminate the dangerous condition by
removal or eliminating the potential harm by warning, were issues properly submitted for the
jury’s consideration.
¶62. Entergy was well aware of the hazard that the downed transmission posed to the
traveling public. Holman admitted in testimony a transmission line could cause serious injury
such as decapitation, or even death. “Power companies have a duty to anticipate and guard
against events which may reasonably be expected to occur and the failure to do so is
negligence, even though the power company may not anticipate the identical injury that
occurs.” Ware v. Entergy Miss., Inc., 887 So. 2d 763, 773 (Miss. 2003). If in the exercise of
due care, Entergy could not have repaired or removed the line, Entergy should minimally have
taken reasonable steps to identify hazards and warn the traveling public of the dangerously low
hanging line.
¶63. It is easy to see how the majority could be sympathetically swayed by the catastrophe
that Entergy faced. However, it is up to the jury to dispassionately pass judgment.
Nevertheless, the fact that Entergy could not have timely procured the specialized crew to
30
repair the line does not abrogate its duty to warn the traveling public of a low hanging
transmission line. This Court has stated, “An electric company is under a duty to safeguard the
public against injury arising from the use of its dangerous agency, whether the danger arises
from its negligence, the negligence of others, or from causes over which it had no control, to
the extent of exercising reasonable care to correct or remove the cause of danger if reasonably
foreseeable and known to the power company.” Tallahatchie Valley Elec. Power Ass’n v.
Clinton, 347 So. 2d 348, 350 (Miss. 1977). We all agree the downed power line was caused
by an event which Entergy had no control over. However, when considering the testimony of
Holman and Sullivan, Entergy had actual, as well as constructive, notice of the downed line, and
Entergy had a duty to exercise reasonable care to warn the traveling public.
¶64. Evidence is abundant that Entergy had notice of a dangerous condition, and the law is
clear that a duty to warn existed. It was up to the jury to determine if the steps taken by Entergy
breached or satisfied that duty. There were sufficient questions of fact presented to the jury,
and its findings should not be disturbed by this Court.
Were we to substitute our view [of the reasonable inferences that may be drawn
from] the facts for the... [jury], one thing could be said with certainty: the
chances of error in any findings we might make would be infinitely greater than
is the case where those findings are made by... [twelve citizens, peers of the
defendant, who are on the scene and smell the smoke of the battle].
Burge v. State, 472 So. 2d 392, 396 (Miss. 1985).
¶65. Based on the evidence memorialized in the record, McFarland provided sufficient
evidence to prove a claim for negligence under Miss. Dep’t of Transp. v. Cargile, 847 So. 2d
258, 262 (Miss. 2003). Entergy had a duty to warn, Entergy breached this duty, and this breach
31
was the proximate cause of the severe injuries that McFarland suffered as a result. The issue
of Entergy’s negligence was properly submitted to the jury under Miss. Code Ann. §11-7-17,
“All questions of negligence and contributory negligence shall be for the jury to determine.”
This jury found that Entergy was negligent in its duty to warn and this decision should be
upheld.
¶66. After a complete and thorough review of each and every page of the record before me,
I find that there is sufficient evidence to support the jury’s verdict in favor of McFarland. It
makes no difference whether I personally agree or disagree with the jury’s verdict. However,
the majority’s opinion strays from the precedent of this Court and violates the prerogative of
fairminded jurors, who were properly instructed on the law. Accordingly, the verdict should
be reinstated. Therefore, I must respectfully dissent.
COBB, P.J., JOINS THIS OPINION.
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