Deviney Construction Co. v. Marble

60 So. 3d 797, 2011 Miss. LEXIS 244, 2011 WL 1796576
CourtMississippi Supreme Court
DecidedMay 12, 2011
DocketNo. 2009-CA-01166-SCT
StatusPublished
Cited by3 cases

This text of 60 So. 3d 797 (Deviney Construction Co. v. Marble) is published on Counsel Stack Legal Research, covering Mississippi Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Deviney Construction Co. v. Marble, 60 So. 3d 797, 2011 Miss. LEXIS 244, 2011 WL 1796576 (Mich. 2011).

Opinion

LAMAR, Justice,

for the Court:

¶ 1. Time Warner1 employee David Scott Marble was injured when he touched a live electrical wire while attempting to splice a new cable into an old cable. He brought suit against Deviney Construction Company, Inc., alleging that Deviney negligently had dug up the electrical wire and then had failed to secure it. After a trial, the jury found in favor of Marble and awarded him $2.5 million. Deviney appeals, arguing, among other things, that the trial judge’s ruling on the presentation of witnesses constitutes reversible error. We agree with Deviney and reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶ 2. In June 2005, a road-widening project was underway on County Line Road in Jackson/Ridgeland, which required installation of new cable. Time Warner had bored the new cable underneath County Line Road and had dug a hole on the property of an adjacent apartment complex so that the new cable could be spliced into the old cable. But while digging the hole to expose the cable, Time Warner had [799]*799accidentally cut a BellSouth phone line. On June 22, BellSouth called Deviney to the scene to widen the hole with a backhoe so it could repair its line. Deviney employees arrived on the scene around 10 or 11 a.m. and worked for three to four hours. While digging, Deviney accidentally cut2 an electrical wire. Deviney employee Brian Odom testified that he accidentally touched the wire and, when he did not get shocked, he “assumed it was dead.” But it was later discovered that the wire supplied power to outside lighting at the apartment complex, which was energized at night according to a timer.

¶ 3. Odom testified that he did not test the wire with a voltage meter. Odom or his coworker notified the manager of the apartment complex that he thought they had hit a wire. The complex’s maintenance worker came and looked at the wire, but “didn’t know nothing about nothing.” Odom testified that he thought he had covered both ends of the exposed wire with PVC pipe.3 But he did not cap, tape, or mark the wire as energized.

¶ 4. Marble and his coworker Vic Holli-field worked the midnight shift for Time Warner. They arrived at the scene during the early morning hours of June 23 to splice the new cable into the old cable. Hollifield testified that Marble stepped into the hole and “kind of stayed there a few seconds.” Then, Hollifield testified that “all of a sudden he just — it was just like somebody had dropped a bag of rocks or just dead weight and landed in here when he fell.” Hollifield testified that he thought Marble had just slipped at first, but then he heard him say something about being shocked. Hollifield got down in the hole with Marble and “let him get his consciousness back together,” and Marble kept saying that he had been shocked and that his whole body was numb.

¶ 5. After he got Marble out of the hole, Hollifield spotted the wire that had shocked him. Hollifield testified that it was hard to see, because it “just kind of blended in with the roots.” He sat with Marble for about forty-five minutes more and called their supervisor, who told him to take Marble to the hospital. Marble was treated and released from the hospital that night. After some physical therapy, he returned to work in August of 2005. He worked a great deal of overtime during the post-Katrina cleanup efforts, but began having significant neck pain in October 2005. He continued to work off and on until December 2005. Marble testified that he can no longer work, and that he is positive that the accident caused all of his current medical problems.4 He said he takes twenty-three prescription pills daily, as well as several over-the-counter pain relievers.

¶ 6. Before trial, the judge ruled that the witnesses could be called only once to the witness stand. Counsel for Deviney objected to this ruling, expressing his view that the defense should not be “handcuffed,” but should be allowed to call its witnesses in its own case-in-chief. Marble ultimately called fourteen witnesses in his case-in-chief, including two of Deviney’s fact witnesses as adverse witnesses. During trial, counsel for Deviney renewed his [800]*800objection to the trial judge’s ruling, but the trial judge affirmed her earlier ruling.

¶ 7. The jury heard testimony that Marble’s medical treatment had cost $111,476.52 from the date of the accident through the date of trial. They heard testimony that, assuming his current prescription plan, he would incur $690,212.66 in pharmaceutical bills during the remainder of his life. The jury also heard testimony that his estimated lost wages ranged from $1,714,685 if he retired at age sixty-five, to $2,653,164 if he retired at age seventy-eight. The jury ultimately found that Deviney was 100 percent at fault and returned a $2.5 million verdict for Marble. Deviney filed a motion for judgment not withstanding the verdict (JNOV), or in the alternative, for a new trial, or in the alternative, for remittitur, which the trial judge denied.

¶ 8. Deviney appeals to this Court, asserting five points of error:

I. The trial judge reversibly erred in admitting the unsupported, unreliable and untimely disclosed testimony of Marble’s economist, Dr. Glenda Glover;
II. The trial judge’s ruling on order of proof constituted reversible error;
III. The trial judge reversibly erred in preventing the jury from considering and apportioning fault to Time Warner and BellSouth;
IV. The trial judge reversibly erred in preventing the impeachment of Marble’s false testimony through evidence of collateral-source payments; and
V. The trial judge’s multiple errors mandate a new trial under the cumulative error doctrine.

¶ 9. We find Issue II dispositive and decline to address the remaining issues.

ANALYSIS

¶ 10. As mentioned above, the judge ruled before trial that witnesses could be called only once to the stand. Counsel for Deviney objected, expressing concern that this ruling would “handcuff’ the defense. The complete exchange was as follows:

Counsel for Marble: I want to clear one more thing with you, Judge, if you don’t mind. I would like to put the plaintiff on specifically only for the issue of liability and then bring him back at another time to discuss the damages because of the way I’ve structured my case.
Court: No, sir. Why would you want to do that, have him on there two times before a jury?
Counsel for Marble: Well, because the liability issue is a lot shorter than the damages. The damages I’m assuming might take all day with cross.
Court: That will come all at one time. We’re not going to have witnesses split back and forth. It just doesn’t make much sense. I’m not going to give him a second time to be before the jury. Just one time. And however long it takes, we’ll go with it.
Counsel for Marble: Okay. [Defense Counsel] I think was wanting to reserve his cross, or you’re going to reserve your questioning?
Court: No. We’re going to have people on at one time. Yes, sir?
Counsel for Deviney: And that may go to what I’m fixing to ask.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Northeast Mental Health-Mental Retardation Commission v. V.M. Cleveland
187 So. 3d 601 (Mississippi Supreme Court, 2016)
Carter v. State
90 So. 3d 701 (Court of Appeals of Mississippi, 2012)

Cite This Page — Counsel Stack

Bluebook (online)
60 So. 3d 797, 2011 Miss. LEXIS 244, 2011 WL 1796576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/deviney-construction-co-v-marble-miss-2011.