Court: Mississippi Supreme Court; December 30, 2003; Mississippi; State Supreme Court
In the wrongful death case of John H. Ware v. Entergy Mississippi, Inc., the Mississippi Supreme Court addressed an interlocutory appeal concerning decisions made by the Circuit Court of Adams County. John H. Ware filed the appeal individually and on behalf of others after the trial court granted two motions in limine that favored Entergy Mississippi. The first motion allowed the jury to assign fault to the deceased’s employer, who had been dismissed from the case, while the second motion barred evidence regarding whether Entergy should have placed a high voltage power line underground. Ware contested the second motion, specifically regarding the admissibility of an internal memorandum from Entergy that pertained to the company's duty of care.
The Supreme Court affirmed the trial court's decision regarding the employer's fault allocation but reversed and remanded the ruling on the second motion, allowing for the introduction of evidence related to Entergy's duty of care. The case arose from the electrocution of Glinnis Marsaw on February 7, 1997, while employed by Jack Dallas, Inc., an electrical contractor. The incident followed the accidental severing of an underground electrical line owned by the Mississippi Department of Transportation (MDOT) during telephone line installation. Entergy's overhead power line, installed in 1996 and approved by MDOT, supplied electricity to streetlights on the Mississippi River bridge and was compliant with the National Electrical Safety Code. The MDOT streetlight system, installed before 1988, was positioned between Entergy's overhead line and U.S. Highway 84, with a significant distance separating the two. Dallas was contracted by MDOT to repair the severed underground electrical line prior to the incident.
Entergy was unaware of a damaged MDOT power line and the Dallas crew conducting repairs on the day of the accident. The crew, working in rainy conditions, needed to dismantle and then re-erect MDOT streetlight poles to fix the underground power line. During the re-erection, crew members, including Marsaw, inadvertently contacted an energized Entergy power line, resulting in Marsaw's electrocution. Plaintiff Ware, as a wrongful death beneficiary, filed suit against Entergy, MDOT, Dallas, Deviney Construction, and BellSouth Telecommunications, Inc. The trial court granted summary judgment to Dallas, citing the exclusivity provision of the Mississippi Workers' Compensation Act. Entergy sought two motions in limine, which were granted: (1) to instruct the jury to allocate fault to the immune employer, and (2) to exclude discussions about the feasibility of placing the power line underground. The standard of review for evidence admission is abuse of discretion. The court determined that the evidence in question would be inadmissible and could prejudice the jury. The document also discusses legal precedents affirming that fault can be apportioned to immune employers, supported by a 2002 legislative amendment to Miss. Code Ann. 85-5-7, allowing for fault assessment regardless of a party's immunity.
For economic damages, defendants with less than 30% fault have several liability, while those with 30% or more have joint and several liability only to ensure the injured party recovers 50% of their damages. Fault assigned to immune tort-feasors or those with liability limited by law cannot be reallocated to others. Although an amendment to this statute, effective January 1, 2003, is acknowledged, it does not apply to the current case, and its future applicability remains undetermined.
Entergy’s rights concerning fault allocation under Miss. Code Ann. 45-15-13(2) are clarified, stating that electric utilities can seek damages from negligent parties contributing to injuries caused by high voltage lines but cannot recover for their own negligence. The trial court correctly ruled on Entergy's motion to exclude fault allocation to an immune employer.
Regarding the installation of underground distribution lines, the trial court barred testimony on whether Entergy could have placed the high voltage lines underground, based on the filed rate plan, which requires customer payment for such installations. Entergy’s motions in limine excluded evidence about its duty to install the line underground and practices in other states. The plaintiff claims Entergy was negligent in the line’s placement, alleging it was installed at a dangerously low height after the installation of light posts. Entergy references Miss. Code Ann. 77-3-35 and its filed policy with the Public Service Commission regarding underground facilities.
Entergy is prohibited from placing a power line underground unless the customer agrees to bear the associated costs, as outlined in Section 77-3-35. This section prohibits public utilities from charging more or less than the rates established in their filed schedules. The Policy for the Extension of Underground Electric Distribution Facilities indicates that while overhead facilities are typically preferred due to economic and technical considerations, underground installations may be justified in specific circumstances where their benefits outweigh the costs.
Entergy argues that the approval of its rate policy by the Public Service Commission (PSC) has the same authority as state law, referencing Mississippi Code Ann. 77-3-3(e) and relevant case law. Furthermore, Entergy cites a PSC decision involving a prior ordinance that improperly imposed costs on Mississippi Power Company, which the PSC deemed to be within its jurisdiction to regulate.
Conversely, Ware contends that the existing rate allows Entergy to install high-voltage lines underground at its own expense when feasible. The central issue is whether the filed-rate doctrine applies, with Entergy asserting that it prevents courts from questioning the reasonableness of approved rates. Previous cases, including American Bankers Ins. Co. of Florida v. Alexander and other cited precedents, highlight that the filed-rate doctrine renders approved rates reasonable and immune from judicial challenges by ratepayers.
The petitioner is limited to claiming only the filed rate, as neither the petitioner nor a court can authorize different terms for the commodity's commerce. The filed-rate doctrine does not apply in this case because the policy allows Entergy to place high voltage lines underground at its own expense where feasible. The trial court erred by excluding evidence about the feasibility of this underground installation. Ware argues that Entergy's obligation to ensure safe installation of high voltage lines is unaffected by the PSC-approved rate policy, asserting that Entergy must maintain a high standard of care for public safety, as established in Entergy Mississippi, Inc. v. Burdette Gin Co. The 2002 legislative amendments to Miss. Code Ann. 11-27-43 include an explicit duty of care for utility companies, requiring compliance with the National Electrical Safety Code and ensuring public safety. Entergy claims these amendments supersede the previously established standard of care set forth in Mississippi Power Light Co. v. Lumpkin. Prior to Lumpkin, the standard was guided by Vines v. Southwestern Elec. Power Ass'n regarding public utility maintenance on public road rights-of-way.
In the case of Vines, a guest passenger was killed when the vehicle he was in left the road, traveled 150 feet into a ditch, and struck a power line pole located 4 feet from the road. All occupants, including the driver, had consumed alcohol. The collision caused the pole to collapse, leading to a downed power line, which Vines touched after exiting the vehicle, resulting in his electrocution. The court referenced the predecessor statute to Miss. Code Ann. 11-27-43, noting that the pole was not in the area designated for public travel and a reasonably careful driver would not have ended up where the pole was situated. The prevailing legal principle indicates that a utility company is not liable for damages from a vehicle colliding with a pole unless it is on the traveled road or poses a danger due to its proximity. The court concluded that the sole proximate cause of Vines' death was the driver's negligence and the vehicle's defect. Despite the vehicle's issues, the driver had no justification for traveling 150 feet off the road without braking. The court emphasized that danger does not equate to negligence, particularly when the danger arises from the driver’s actions, and that the utility company had no obligation to mitigate risks from vehicles leaving the roadway.
In a similar case, Lumpkin involved a driver, Tackett, who, after consuming alcohol, lost control of his vehicle, struck a utility pole, and caused the power lines to fall. One passenger, Kristen, exited the vehicle and sustained severe burns after contacting the downed power lines but survived.
Kristen sustained severe injuries, leading to the amputation of her left arm and significant loss of flesh on her left forearm after a collision with a utility pole owned by Mississippi Power and Light Company (MP.L). In the case of Lumpkin, MP.L sought to leverage a prior ruling in Vines to absolve itself of liability, arguing that utility companies should not be held responsible for accidents involving reckless drivers who go off the main traveled portion of a road. The plurality opinion in Lumpkin overruled Vines, establishing that utility companies must exercise reasonable care for the safety of individuals using the right-of-way, regardless of whether a driver has strayed from the main path due to misfortune or negligence. The court outlined factors to consider when assessing the danger posed by the utility pole, such as its distance from the roadway, roadway configuration, prior accident notifications, and potential safer placements for the structure. While acknowledging the similarities between Vines and Lumpkin, the court noted that the facts of the current case differ significantly, deferring further discussion on the precedential value of the Lumpkin decision.
Intoxicated drivers causing accidents are not the issue at hand; instead, construction workers, experienced with energized power lines, inadvertently brought a metal light pole into contact with a visible Entergy overhead power line. This incident occurred because Entergy was not notified of the repair work near their lines. Entergy claims it meets its duty of care by adhering to the National Electrical Safety Code (NESC) and argues that compliance with NESC absolves it of liability due to the overhead power line's placement. However, this position is rejected, as Mississippi public policy mandates utilities to exercise a high degree of care to protect the public from electrical hazards. Utilities must anticipate potential risks and guard against them, even if they do not foresee the specific injury that occurs. Mississippi law, specifically Miss. Code Ann. 11-27-43, outlines that utilities must meet NESC standards, ensure poles are safely constructed, avoid interference with public use, and minimize inconvenience to landowners. The NESC offers minimum safety guidelines but does not serve as a comprehensive design manual. Violating NESC standards can constitute negligence per se; however, compliance alone does not necessarily indicate due care in all circumstances. Prior to the 2002 amendment, legislative intent suggested that meeting NESC standards was sufficient for utilities' compliance obligations.
Compliance with safety regulations regarding the placement of high voltage lines must not endanger individuals or property, disrupt common use of public roads, or interfere with other utility companies. The jury is tasked with determining if Entergy's placement of uninsulated high voltage lines in 1996 met the duty of care established by statute, the National Electrical Safety Code (NESC), and relevant case law.
The admissibility of an internal memorandum from Entergy, dated September 9, 1996, is under scrutiny. Ware seeks to introduce this memo to support his argument that Entergy considered safer underground alternatives for the electrical lines at the site of an electrocution incident. Entergy argues the memo is inadmissible under Mississippi Rules of Evidence (M.R.E.) 401 and 402 as irrelevant. M.R.E. 401 defines relevant evidence as that which makes a fact more or less probable, while M.R.E. 402 states all relevant evidence is admissible unless otherwise excluded.
Ware contends that the internal memo is pertinent because it suggests Entergy was willing to install the lines underground at its own cost. However, the court disagrees, stating that the memo lacks relevance to the trial issues. Even if the memo were deemed relevant, M.R.E. 403 allows for exclusion of evidence if its probative value is outweighed by the risk of unfair prejudice, confusion, or misleading the jury. The court finds that the internal memo could mislead the jury regarding Entergy’s legal obligations, and thus, its potential for prejudice and confusion outweighs any probative value it might have.
Entergy is not prohibited by the filed rate policy from placing the distribution line underground, and an internal memorandum suggesting that underground placement was feasible is deemed irrelevant to the trial court's issues. Even if it were relevant, the memorandum is inadmissible under M.R.E. 403 due to the balancing test. The trial court did not abuse its discretion in ruling the memorandum inadmissible. The court affirmed Entergy's motion in limine regarding the submission of fault of the immune employer to the jury, but reversed the decision on the feasibility of underground power lines, maintaining that the internal memorandum on the matter is not admissible. The case is remanded to the Circuit Court of Adams County for further proceedings.
A concurrence and dissenting opinion from Justice McRae indicates partial agreement with the majority but disagreement on other issues. He criticizes the majority for relying on legislative reforms from 2002, suggesting they misapply these changes to the current case despite their inapplicability. He emphasizes the precedent set in Mack Trucks II, which allocated fault to an immune party, noting the importance of applying the law as it was at the time of the accident. The majority has decided to submit the question of whether Entergy's placement of uninsulated high voltage lines in 1996 met its duty of care to the jury.
The majority deemed Entergy's internal operating memorandum, dated 1982, inadmissible due to a lack of relevance. The memorandum revealed that Entergy had plans to place all downtown facilities underground by December 31, 1996, a plan that was abandoned in 1984 for economic reasons, which resulted in potential safety risks. The location of a subsequent electrocution incident would have had underground wiring had the plan not been canceled. This memorandum is argued to be critical evidence of Entergy prioritizing economic value over safety, indicating a breach of duty of care.
The majority's reliance on Mississippi Code Ann. 11-27-43(1) was criticized for suggesting that Entergy's legal obligations would confuse the jury. However, it was clarified that these obligations indeed impose a safety duty for other workers, which Entergy neglected due to financial considerations. The relevance of the memorandum should be presented to the jury for determining whether Entergy met the applicable standard of care. Any perceived bias from the evidence is countered by its purpose to highlight Entergy's choices based on economic factors rather than safety.
Additionally, if experts were to testify about the standard of care, it would further substantiate the relevance of the internal memorandum and allow for cross-examination regarding Entergy's awareness of alternative safety measures. The author expressed dissent regarding the court's treatment of precedents in Mississippi Power Light Co. v. Lumpkin and called for a reevaluation of earlier decisions. The author concludes with a partial concurrence and dissent.
Accu-Fab Constr. Inc. v. Ladner, 778 So.2d 766 (Miss. 2001) involves the adoption of Mississippi Code Annotated 85-5-7(8) by the 2002 Legislature, which modified a prior subsection. The statute was amended in a special session and the previous subsection now appears as 85-5-7(9). The opinion references a plurality decision in Lumpkin, where the 2002 amendment to Miss. Code Ann. 11-27-43, effective July 1, 2002, is acknowledged but deemed inapplicable to the current case. The jury awarded Kristen $750,000 but found her and MP.L equally at fault at 50%, while attributing no fault to the driver, Tackett. Justice Banks authored the plurality opinion that reversed and remanded the jury verdict due to the trial court's exclusion of evidence regarding Tackett's alcohol consumption. Justice McRae concurred in part and dissented in part, advocating for the affirmation of the jury's verdict, while Justice Smith also concurred in part and dissented, arguing for the reversal based on the precedent set in Vines. The decision was reached with a 4-3 vote, with two justices not participating. The 2002 amendment clarified the statute by designating the former paragraph as (1) and adding paragraphs (2) through (4).
