Ware v. Entergy Miss., Inc.
| Docket Number: | 2002-IA-00858-SCT Linked Case(s): 2002-IA-00858-SCT |
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| Supreme Court: | Opinion Link Opinion Date: 12-31-2003 Opinion Author: Carlson, J. Holding: Affirmed in Part; Reversed in Part |
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| Additional Case Information: |
Topic: Wrongful death - Allocation of fault to immune employer - Testimony about underground power lines - Section 77-3-35 - Duty of care - Section 11-27-43 - Admission of internal memo Judge(s) Concurring: Pittman, C.J., Smith, P.J., Waller and Cobb, JJ. Non Participating Judge(s): Diaz, J. Dissenting Author : McRAE, P.J., EASLEY, J., Concur in Part, Dissent in Part 1: Easley, J., Concurs in Part and Dissents in Part Without Separate Written Opinion Concurs in Result Only: Graves, J. Procedural History: Interlocutory Appeal Nature of the Case: CIVIL - WRONGFUL DEATH |
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| Trial Court: |
Date of Trial Judgment: 05-20-2002 Appealed from: Adams County Circuit Court Judge: Lillie Blackmon Sanders Disposition: Granted two motions in limine. Case Number: 97-0122-S |
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| Note: | 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. | |
| Party Name: | Attorney Name: | |||
| Appellant: | John H. Ware, Individually, and on Behalf of Others |
JOHN E. MULHEARN, JR.
BRYAN HOWARD CALLAWAY |
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| Appellee: | Entergy Mississippi, Inc. | CHARLES EDWIN ROSS NATIE P. CARAWAY WILLIAM B. LOVETT JAMES W. SNIDER, JR. |
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| Topic: | Wrongful death - Allocation of fault to immune employer - Testimony about underground power lines - Section 77-3-35 - Duty of care - Section 11-27-43 - Admission of internal memo |
| Summary of the Facts: | Glinnis Marsaw was electrocuted while in the employ of Jack Dallas, Inc., an electrical contractor. John Ware, as wrongful death beneficiary of Marsaw, filed suit against Entergy, Mississippi Department of Transportation, Dallas, Deviney Construction, and BellSouth Telecommunications, Inc. The court granted summary judgment in favor of Dallas, under the exclusivity provision of the Mississippi Workers' Compensation Act. Entergy filed several motions in limine, two of which the court granted. The Supreme Court granted an interlocutory appeal on petition of John Ware. |
| Summary of Opinion Analysis: | Issue 1: Allocation of fault to immune employer The court granted Entergy’s motion to have the jury instructed to allocate fault to the immune employer even though it was dismissed from the lawsuit. Under the Supreme Court’s decision in Mack Trucks, Inc. v. Tackett, 841 So.2d 1107 (Miss. 2003), the trial court was correct in granting Entergy's motion in limine relative to the allocation of fault to the immune employer. Issue 2: Testimony about underground power lines The court granted Entergy’s motion to exclude all testimony and evidence that Entergy had the duty or authority to place the power line in question underground and that utilities in other states put power lines underground. Entergy argues that, under section 77-3-35 and the Policy For The Extension of Underground Electric Distribution Facilities filed with the Public Service Commission, Entergy is not entitled to or authorized to place a power line underground unless the customer agrees to pay for such. Ware argues that the filed rate doctrine 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. 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. In addition, the rate policy filed with the PSC does not prohibit Entergy from placing the high voltage lines underground at its own expense. Therefore, the court abused its discretion by excluding evidence and testimony related to the feasibility of Entergy placing its power line underground. Issue 3: Duty of care Ware 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. Public policy in Mississippi requires utilities to exercise a very high degree of care in protecting the public from the dangers of electricity. Section 11-27-43, both before and after its 2002 amendment, requires that the National Electrical Safety Code requirements are met, the poles are constructed and placed as not to be dangerous to persons or property, 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 the construction does not unnecessarily inconvenience any landowner. 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 by statute, the NESC, and our case law. Issue 4: Internal memo Ware proposes to offer into evidence an Entergy internal memo. Ware argues that this 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. This internal memorandum is not relevant to the issues before the court and ultimately the jury. 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. 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. |
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