Martishius v. Carolco Studios, Inc.

542 S.E.2d 303, 142 N.C. App. 216, 2001 N.C. App. LEXIS 79

• Court: Court of Appeals of North Carolina
• Decided: February 20, 2001
• Docket: COA00-199
• Status: Published

Opinions

GREENE, Judge.

Carolco Studios, Inc. (Defendant) appeals a 23 July 1999 judgment entered consistent with a jury verdict finding Defendant negligent in causing injuries to James L. Martishius (Plaintiff) and awarding Plaintiff $2,500,000.0o.¹ Defendant also appeals the trial court’s denial of Defendant’s motion for judgment notwithstanding the verdict, the trial court’s denial of Defendant’s motion for a new trial, and the trial court’s order assessing costs against Defendant.²

Crowvision, Inc. (Crowvision), a production company formed to produce the movie “The Crow,” entered into a license agreement with Defendant on 29 December 1992 for the use of a portion of Defendant’s land, stages, facilities, equipment, and personnel in connection with production of “The Crow.” Defendant warranted to Crowvision that the premises and facilities were “satisfactory and in a safe condition.”

Prior to Crowvision beginning production of “The Crow,” Gerald Waller (Waller), a licensed electrician and Defendant’s on-site facility manager, showed Jeffrey Schlatter (Schlatter), Crowvision’s construction coordinator, the back lot of Defendant’s facilities and inspected the back lot’s power lines. Waller informed Schlatter that Carolina Power & Light Company (CP&L) had a thirty foot right-of-way and Crowvision would have to keep its set at least ten feet from the power lines to avoid encroaching on CP&L’s easement. CP&L’s three power lines ran parallel five feet apart. Both of the outer lines were energized and were installed 27.8 feet above the ground. The energized lines were buffered on both sides by ten feet of CP&L’s easement.

In January 1993, Crowvision installed 10 or 11 telephone poles on the back lot to facilitate the construction of a church and cemetery set facade. On 1 February 1993, Paul Saunders, Plaintiff’s supervisor, instructed Plaintiff to assist the construction foreman on the church/cemetery set. Plaintiff used a JLG, “a piece of equipment that has tires and can move from spot to spot, rotates around with an extending boom [and a] work platform, so that it will get to high places,” to attempt to move the church door. As Plaintiff positioned the JLG to pick up the church door, the basket of the JLG contacted an overhead power line. Plaintiff has no memory of how the accident happened, and Plaintiff sustained severe burns about his body as a consequence of the contact.

At trial, Plaintiff presented evidence Waller inspected the activities on the back lot every day and was physically present when the holes were dug for the telephone poles upon which the set facades were hung. In fact, Waller was aware the poles were within a foot or two of the power lines. Schlatter testified he obtained Waller’s permission before making set alterations, including changes to or additions of set facades. Schlatter also testified that the route taken by Plaintiff to move the church door was the best route as other routes were blocked or inaccessible. Shortly after the accident, Waller told Schlatter that he had warned Defendant “for years to do something about these lines.”

John Christopher Crowder, a carpenter with Crowvision, testified the job Plaintiff was performing on the day of the accident was a “one-man operation” and that most carpenters would not use two people to perform the job Plaintiff was performing at the time of the accident.

Witnesses testified Plaintiff was a competent operator of the JLG and was one of the best at running the JLG. On the day of the accident, Plaintiff was operating a new JLG which had different controls than other JLGs on the set. A representative of Hertz, the company Crowvision leased the JLG from, testified the new JLG had electronic controls and was jerky and erratic. The new JLG put individuals at a greater risk of striking objects in close proximity to the JLG.

Ralph Woollaston (Woollaston), Crowvision’s construction foreman, testified it is very difficult to see power lines while operating a JLG. Woollaston stated the power lines become cluttered in trees and the power lines look invisible and “[i]f the sun is in your eyes, you are not going to see them at all.” The day after Plaintiff’s injury, Woollaston and Schlatter went to the scene of Plaintiff’s injury. They looked at the power lines from several vantage points, conditions being similar to the time of Plaintiff’s injury, and “[t]here were several places that . . . you couldn’t see them.” At times, the power lines appeared as “pencil lines in the air.” Woollaston testified use of the JLG was the best method to use in the work Plaintiff was performing at the time of the accident and that a forklift was not a preferable method because it would have flipped over. On cross-examination, Woollaston stated the door Plaintiff was moving was a very heavy door and otherwise would have taken five men to move the door.

Dr. Harvey Snyder (Dr. Snyder) was tendered as an expert in the field of human factors and visual perception. Over Defendant’s objection, the trial court accepted Dr. Snyder as an expert in human factors and visual perception. The trial court, however, directed Dr. Snyder to avoid making legal conclusions. Based on depositions, affidavits, and measurements taken by Dr. Snyder, Dr. Snyder opined that Plaintiff approached the area where the accident occurred and:

[h]is objective was to reach in through the gap between the vertical structure . . . and the poles to the right of it to pick up a flat which looked like a window or doorway lying on the ground, probably some 70 or 80 feet away.... [Plaintiff] operated the JLG from the bucket, raised it up over the structure ... to his right, or beyond the bucket as we see it sitting right now, boomed out to attempt to pick up the flat lying on the ground and affixed it to the bucket to bring it back. [Plaintiff] could not reach it. The boom length was not adequate to get there. [Plaintiff], therefore, started booming back in to return to the position ...[,] [bjoomed in, elevated and rotated to get back toward[] that position, and in the process, contacted or came very close to the energized line and made contact with the neutral line, the lower line, the lower line being hit by the bucket.

In Dr. Snyder’s opinion, the power lines “were located dangerously close to the structures which [Plaintiff was] working on. . . . There is insufficient space between the structures and the lines for a person to use elevating equipment safely.” Dr. Snyder stated Plaintiff’s operation of the JLG was made extremely difficult because Plaintiff was looking directly into the sun as he operated the JLG and, thus, was prevented from seeing the power lines.

In addition, Plaintiff’s “perception of the distance to the lines and even the ability to see the lines would have been greatly compromised, and it is reasonably likely that someone in that position looking at those lines would not be able to see them because of the sun[’s] glare.” Dr. Snyder testified the power lines did not “provide any freedom of movement for an operator, . . . any forgiveness, whatsoever, to an operator who moves slightly in the wrong dimension in coming close to the lines.” Dr. Snyder stated there were various alternatives available to Defendant to safeguard against the particular hazard including: de-energizing the power lines; moving or burying the power lines; or not permitting a set to be built in close proximity to the power lines. Dr. Snyder testified that “[w]arnings are not a fail-safe device for eliminating hazards, and if the hazard could have been eliminated, it should have been eliminated.”

David MacCollum (MacCollum) is a licensed industrial engineer and a licensed safety engineer, who identifies hazards and defines available safeguards to control the hazards. MacCollum has been a certified safety professional for approximately thirty years. Plaintiff tendered MacCollum as an expert in the field of safety engineering. The trial court accepted Plaintiffs tender over Defendant’s noted objection.

Based on photographs and previous testimony at trial, MacCollum testified:

[Plaintiff] had to come within close proximity and work next to those power lines and judge the best that he could that he had visual clearance.

... [Plaintiff was] looking toward[] the sun, which makes [the power lines] hard to see. It’s hard to, in controlled studies, to be able to judge your clearance, particularly when you have multiple tasks. So in the process, my assessment, in summary, is that [Plaintiff] thought he had clearance, and he was doing his job as he was told to do, and he was doing it consistent with the requirements of the equipment and the labels in the manual that gave directions on how to perform your work around power lines safely.

MacCollum also formed an opinion concerning the conduct of Defendant. MacCollum opined that Defendant “had a hazardous workplace because the power lines were present[,] . . . the power lines could have been easily removed, and . . . [Plaintiff], the operator, was following the basic instructions from the JLG.” MacCollum testified that the custom and practice in the construction industry “is to separate or remove the power lines from the workplace before the lift equipment is introduced into the work environment, so that it is now physically impossible to strike the power lines with lift equipment.” Defendant could have removed the power lines from the work site by: burying the power lines; barricading the area off to restrict entry into the area; or insulating on the power lines.

Dr. James Samuel McKnight (Dr. McKnight) was accepted, without objection, as an expert in the field of electrical engineering and electrical safety in construction sites. Dr. McKnight testified Defendant’s back lot and the overhead power lines involved in this accident did not comply with industry customs, standards, and practices. In Dr. McKnight’s opinion, the constant activity around the overhead power lines created an “unnecessary hazard” and the power lines could have been designed to reduce the hazard. Based on photographs taken of the accident scene after Plaintiffs injury and bum marks to the JLG, Dr. McKnight concluded Plaintiff did not back into the power lines, but instead, the side of the JLG contacted the power lines.

At the close of Plaintiffs evidence and the close of all the evidence, Defendant made motions for a directed verdict. The trial court denied Defendant’s motions. After the jury returned its verdict, Defendant made motions for judgment notwithstanding the verdict and a new trial.

The issues are whether: (I) the opinions of Plaintiff’s expert witnesses were based on an insufficient factual basis; (II) Defendant took adequate steps to protect lawful visitors from unreasonable risks; (III) Plaintiff was contributorily negligent as a matter of law; and (IV) the jury’s verdict was against the greater weight of the evidence.

I

Defendant argues the trial court erred in admitting the testimony of Dr. Snyder and MacCollum because there were not “sufficient facts upon which to base these opinions.” We disagree.

“Once the trial court in its discretion determines that the expert testimony will not mislead the trier of fact, any question as to the sufficiency of the factual basis of the opinion affects the credibility of the testimony but not its competence as evidence.” Powell v. Parker, 62 N.C. App. 465, 468, 303 S.E.2d 225, 227, disc. review denied, 309 N.C. 322, 307 S.E.2d 166 (1983). “It is well settled that an expert witness need not testify from firsthand personal knowledge, so long as the basis for the expert’s opinion is available in the record or on demand.” State v. Purdie, 93 N.C. App. 269, 276, 377 S.E.2d 789, 793 (1989).

In this case, Dr. Snyder based his opinion on depositions, affidavits, and measurements taken of the scene of Plaintiff’s accident. MacCollum’s testimony was based on photographs and previous testimony at trial. Furthermore, Plaintiff’s witnesses testified that in reconstructing the accident scene, under conditions similar to those faced by Plaintiff, the power lines were very difficult, if not impossible, to see due to glare from the sun. The record clearly delineates the factual basis relied on by Dr. Snyder and MacCollum, and any question as to the sufficiency of the factual basis affected the weight of the experts’ testimony and not its admissibility. Accordingly, the trial court did not err in allowing Plaintiff’s expert witnesses to state their opinion that Plaintiff exercised reasonable care for his safety.

II

Defendant argues the trial court committed reversible error in denying its motions for a directed verdict and judgment notwithstanding the verdict on the issue of Defendant’s negligence. We disagree.

In order to prevail on a claim of negligence, the plaintiff must establish the defendant owed him a duty of reasonable care, that the defendant was negligent in this duty, and that such negligence was the proximate cause of the plaintiff’s injuries. Beaver v. Hancock, 72 N.C. App. 306, 311, 324 S.E.2d 294, 298 (1985). A landowner owes a duty “to exercise reasonable care to provide for the safety of all lawful visitors on [its] property,” and, thus, is required to “take reasonable precautions to ascertain the condition of the property and to either make it reasonably safe or give warnings as may be reasonably necessary to inform the [lawful visitor] of any foreseeable danger.” Lorinovich v. K Mart Corp., 134 N.C. App. 158, 161-62, 516 S.E.2d 643, 646, cert. denied, 351 N.C. 107,-S.E.2d-(1999). In some situations, however, a warning does not satisfy the landowners’s duty. If a reasonable person would anticipate an unreasonable risk of harm to a visitor on his property, notwithstanding the lawful visitor’s knowledge of the danger or the obvious nature of the danger, the landowner has a duty to take precautions to protect the lawful visitor. See Southern Railway Co. v. ADM Milling Co., 58 N.C. App. 667, 673, 294 S.E.2d 750, 755, disc. review denied, 307 N.C. 270, 299 S.E.2d 215 (1982).

In this case, viewing the evidence in the light most favorable to Plaintiff, see Smith v. Price, 315 N.C. 523, 527, 340 S.E.2d 408, 411 (1986) (the standard of review of a trial court’s ruling on a motion for judgment notwithstanding the verdict is the same as that upon a motion for a directed verdict and in considering either motion, the evidence must be viewed in the light most favorable to the non-moving party), Plaintiff produced substantial evidence to support every element of his claim for relief, see Cobb v. Reitter, 105 N.C. App. 218, 220, 412 S.E.2d 110, 111 (1992) (a defendant is entitled to a directed verdict or judgment notwithstanding the verdict only if the plaintiff is unable to produce substantial evidence that the defendant’s negligence was the proximate cause of plaintiff’s injuries). Although Plaintiff was aware of the power lines, Plaintiff’s awareness did not abrogate Defendant’s duty. Defendant was aware of Crowvision’s construction of a set near the power lines and Waller, Defendant’s representative, inspected Crowvision’s activities every day and was on the scene when the holes were dug to insert telephone poles within a foot or two of the power lines. Although the evidence shows Defendant warned Plaintiff’s employer about the presence of the power lines, a reasonable person could anticipate an unreasonable risk of serious harm to employees of Crowvision (who were to be working underneath and adjoining the lines with equipment that could reach to the lines), caused by the power lines passing through the property. Thus, Defendant had a duty to take feasible precautions to guard against this serious harm. Plaintiff’s expert witnesses testified various alternatives were available to Defendant to safeguard against the hazards posed by the presence of the power lines. Defendant, however, took no precautions to make its premises safe, despite its awareness of Crowvision’s close proximity to the power lines and the unreasonable risk of harm to Crowvision’s employees. In fact, Waller admitted to Plaintiff’s supervisor that he had warned Defendant “for years to do something about these Mnes.” Despite Waller’s warnings to Defendant and the availability of alternative safeguards, Defendant took no precautions to remedy the dangerous conditions on its premises. Accordingly, this evidence is substantial evidence Defendant failed to take precautions against an unreasonable risk of serious harm. See Cobb, 105 N.C. App. at 220, 412 S.E.2d at 111 (substantial evidence is evidence a reasonable mind might accept to support a conclusion). The trial court, therefore, did not err in denying Defendant’s motions for a directed verdict and judgment notwithstanding the verdict.

III

Defendant next argues Plaintiff was contributorily negligent in causing his injuries, and, thus, Plaintiff’s claim of negligence was barred. We disagree.

A plaintiff who is aware of a known danger, but fails to avoid it, is contributorily negligent. Stallings v. Food Lion, Inc., 141 N.C. App. 135, 539 S.E.2d 331, 333 (2000). “The test for contributory negligence is whether a person using ordinary care for his or her safety under similar circumstances would have recognized the danger.” Id. Because the test for contributory negligence requires application of the reasonable person standard, a directed verdict is rarely proper in determining contributory negligence and should be allowed only when the plaintiffs evidence, viewed in the light most favorable to him, clearly establishes the defense of contributory negligence so that no other reasonable conclusion could be drawn. Id.

In this case, Plaintiff’s evidence shows he operated JLGs on several occasions and was a proficient operator of such. At the time of Plaintiff’s accident, he was operating a new JLG, with electronic controls that caused the machine to be jerky and erratic. Furthermore, Plaintiff’s experts, as well as Plaintiff’s co-workers, testified the sun was directly in Plaintiff’s eyes at the time of the accident making it difficult, if not impossible, to see the power lines. Moreover, Plaintiff’s witnesses testified no other, safer methods were available to Plaintiff to move the church door. Viewing this evidence in the light most favorable to Plaintiff, we cannot say as a matter of law that Plaintiff was contributorily negligent. Accordingly, the trial court did not err in denying Defendant’s motion for a directed verdict or judgment notwithstanding the verdict due to Plaintiff’s contributory negligence.

IV

Defendant finally argues the trial court abused its discretion in denying Defendant’s motion for a new trial. We disagree. The trial court’s ruling on a motion for a new trial is within the trial court’s sound discretion and will not be reversed on appeal, absent a showing the trial court’s ruling amounted to a substantial miscarriage of justice. Allen v. Beddingfield, 118 N.C. App. 100, 101-02, 454 S.E.2d 287, 289, disc. review denied, 340 N.C. 109, 456 S.E.2d 310 (1995). Because we have stated in parts II and III herein that Plaintiff presented substantial evidence Defendant was negligent in failing to . prevent Plaintiffs injuries and that Plaintiff was not contributorily negligent, we cannot say, based on this record, the trial court’s decision not to grant Defendant a new trial was an abuse of discretion or resulted in a miscarriage of justice.

No error.³

Judge HORTON concurred before 8 February 2001. Judge TYSON dissents.

1 . We note Cindy K. Martishius also filed suit against Defendant based on the loss of consortium of her husband, Plaintiff. The jury, however, found Defendant’s negligence did not cause the loss of consortium of Plaintiff and Cindy K. Martishius did not appeal the jury’s verdict.

2 . Defendant has presented no argument in its brief to this court concerning the trial court’s order assessing costs against Defendant. Therefore, we do not address this issue. See N.C.R. App. P. 28(a).

3 . We do not address Defendant’s remaining assignments of error as Defendant has not presented any argument in its brief relating to these assignments of error. See N.C.R. App. P. 28(a) (questions raised by assignments of error but not “discussed in a party’s brief, are deemed abandoned”).