Derrick Robertson v. Gaddy Electric and Plumbing, LLC
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REL:04/09/2010 Notice: T h i s o p i n i o n i s s u b j e c t t o f o r m a l r e v i s i o n b e f o r e p u b l i c a t i o n i n t h e advance s h e e t s o f Southern R e p o r t e r . R e a d e r s a r e r e q u e s t e d t o n o t i f y t h e R e p o r t e r o f D e c i s i o n s , A l a b a m a A p p e l l a t e C o u r t s , 300 D e x t e r A v e n u e , M o n t g o m e r y , A l a b a m a 3 6 1 0 4 - 3 7 4 1 ((334) 2 2 9 - 0 6 4 9 ) , o f a n y t y p o g r a p h i c a l o r o t h e r e r r o r s , i n o r d e r t h a t c o r r e c t i o n s may b e made b e f o r e t h e o p i n i o n i s p r i n t e d i n Southern R e p o r t e r . SUPREME COURT OF ALABAMA OCTOBER TERM, 2009-2010 1081351 Derrick Robertson v. Gaddy E l e c t r i c Appeal BOLIN, verdict ("Gaddy"), Gaddy's f r o m Marengo C i r c u i t (CV-04-32) Court Justice. Derrick jury and P l u m b i n g , LLC Robertson i n favor appeals from o f Gaddy a judgment e n t e r e d Electric and Plumbing, i nh i s p e r s o n a l - i n j u r y action seeking alleged negligence and wantonness. on a LLC damages f o r 1081351 Procedural Robertson was hired cable, was e m p l o y e d t o upgrade a Bank o f Demopolis September by C o l l i n s video telephone wiring, History system, the bank. t o r u n o r t o move his ladder, the into chase While 1 lifted the c e i l i n g i n which down from his left hand initially Robertson installed approximately 10 the years dangerous or condition. The cable through room, R o b e r t s o n came the c e i l i n g , and Gaddy, electrical climbed located up the started back a metal s h o c k ; he fell t h e company t h a t h a d wiring in Specifically, and/or the e l e c t r i c a l was a room" went i n contact with an e l e c t r i c a l sued case Commercial i n the " d r i v e - i n from earlier. repaired video When R o b e r t s o n t h a t Gaddy h a d n e g l i g e n t l y maintained, communications at the "mid-stomach," c a u s i n g him to r e c e i v e the ladder. alleged about tile to run the cable. the ladder, object, i n the d r i v e - i n a ceiling which R o b e r t s o n w e n t t o t h e b a n k on " c h a s e , " o r c h a n n e l , above t h e c e i l i n g of i.e., and d a t a w i r i n g , ("the bank"). 12, 2002, Communications, tried wantonly wiring, before the bank Robertson installed, creating a jury. a At Both parties refer t o t h e r o o m w h e r e R o b e r t s o n was i n j u r e d as t h e " d r i v e - i n room," w h i c h i s t h e room where t h e t e l l e r equipment f o r t h e d r i v e - t h r o u g h window i s l o c a t e d . 1 2 1081351 trial, Gaddy a s s e r t e d t h e a f f i r m a t i v e d e f e n s e s o f negligence and assumption of the r i s k . contributory R o b e r t s o n moved f o r a j u d g m e n t as a m a t t e r o f l a w on t h o s e d e f e n s e s , w h i c h court denied. law. The as court a matter the jury. Robertson the filed trial part, The granted of n e g l i g e n c e c l a i m s and to trial Gaddy a l s o moved f o r a j u d g m e n t as a m a t t e r trial judgment the law on the jury and entered a d e f e n s e s were s u b m i t t e d motion Robertson and of wantonness; the returned a verdict denied. reverse i n part, motion issue the a f f i r m a t i v e a post-judgment court Gaddy's of i n favor f o r a new appeals. of Gaddy. trial, We which affirm in remand. Facts The metal object Robertson's hand for a light switch the drive-in line room. or c i r c u i t box. The required came which Specifically conduit through a code of solid, which electrical i t was at issue running from the l i g h t presence is the o p e r a t e d an o v e r h e a d and two w i r e r u n n i n g from the l i g h t EMT, caused in contact with that applicable the that building light the in junction this s w i t c h t o t h e j u n c t i o n box electrical three wires 3 run. The metal EMT in electrical to the plans box fixture separate grounds: ( 1 ) a rigid when a junction was switch shock case ground and (2) tubing or serves as a 1081351 s e c o n d a r y g r o u n d when i t i s p r o p e r l y box. At trial, ground wire ground present -- required Robertson EMT by connected to Gaddy, i n the to He that acts as his Winters, of with employees drive-in room the two both creating there are a city times. dangerous testified as that check of their the accident in there the been had own bank not drive-in remodeled, 4 Gaddy code the EMT wires the been room the and or a wire during the and inspected that also the the stated work. at an inside and inspector t e s t i f i e d that during never installed that Jerry not a three undisputed grade was applicable stated no secondary conduit separate occasions manager switches had the then was commercial Gaddy, He is bank always branch light the charge, a n e u t r a l wire, the inspection Robertson's the to It w o r k on Robertson's accident, before that owner of that the ground. phase the the thereby building plans. Gaddy's e l e c t r i c a l work p a s s e d not junction there s t a t e d t h a t h i s company had carries a construction that the comes a s s e m b l e d a n d a wire that the that and box, bank a c c o r d i n g the show was junction wiring that -- the at t r i a l . i t : conduit building plans; expert conduit or Jerry condition. according EMT to to conduit; i n the or the sought attached Barbara time 10-year of period any problems and that the or re- repainted, 1081351 wallpapered. drive-in The However, she r o o m was testimony original where periodically was c o n s t r u c t i o n Gaddy had the accident drive-in room, Immediately and to inspect t o make t h e J e r r y Gaddy d i s c o v e r e d was a bare spot or completely on to everything, Jerry Gaddy area where the so f a r as was EMT was to to attached f o r the have been he could intact, the accident some where the repairs. the in accident sort between apparently j u n c t i o n box. thoroughly of a ground. of had the However, disconnection 5 that there metal when he occurred, switch indicating to have happened, had i . e . , there not stated accident tell, went Upon i n s p e c t i o n , absence also the work. t h a t the s h o r t a c t u a l l y caused the "hot." j u n c t i o n box work J e r r y Gaddy a n d / o r t h e w i r e was causing area Gaddy's construction accident, wiring any the the in a s h o r t i n the ground w i r e , connected, the that, original the inspected be since nothing necessary the wire J e r r y Gaddy t e s t i f i e d conduit the the whether performed the upgraded. r e p a i r s to Gaddy had than to and/or made a n y f o l l o w i n g Robertson's scene occurred other as on" However, occurred. indicated that the "worked inconclusive invoices to d i d s t a t e t h a t the equipment i n that he the admitted obviously somewhere. and had Jerry 1081351 Gaddy t e s t i f i e d t h a t s h o r t s c a n d e v e l o p a f t e r c o n s t r u c t i o n and that a ground c a n become Robertson and his t e s t i f i e d at t r i a l . the number of of conduit conduit was Robertson's that accident. the required conduit present present attached to at the time in the the conduit, box Robertson was Smith, was c o n f l i c t i n g junction wire construction. Randall i n the c e i l i n g , Although ground after co-employee, Their testimony wires quality disconnected or and whether the the contends not present o f h i s a c c i d e n t , he regarding type at the also time on appeal i n t h e EMT testified at before repaired anything. the wire was not attached to i t was "Q. M r . R o b e r t s o n , a n d ... y o u w e r e t a l k i n g a b o u t how y o u saw a p a r t o f t h e m e t a l c l a d c o n d u i t h a d b e e n r e m o v e d a n d a p i e c e o f Romex p u t i n p l a c e . Do you s e e t h a t ? "A. Uh-huh. "Q. Tell u s w h a t Romex i s . "A. Romex i s a n o n m e t a l l i c s h e a t h e d c a b l e . I t ' s PVC j a c k e t e d . I t ' s t y p i c a l l y what a homeowner w o u l d go t o L o w e ' s o r o f f i c e - - a home s u p p l y house and p u r c h a s e f o r home w i r i n g . "Q. ... "Q. Now, i n t h i s c a s e w h a t y o u saw was a p i e c e o f Romex. Am I u n d e r s t a n d i n g ... t h a t w h a t y o u saw was 6 or trial t h a t he h a d a c h a n c e t o l o o k a t t h e d a m a g e d w i r e and t h a t of 1081351 a piece as w e l l "A. o f Romex t h a t h a d t h e b l a c k a n d w h i t e w i r e s as a c o p p e r w i r e [ i . e . , g r o u n d w i r e ] ? That's right. "Q. A n d t h e c o p p e r w i r e was t h e w i r e t h a t f o l d e d back and n o t a t t a c h e d t o a n y t h i n g ? "A. That's Smith testified were made present t h a t he was p r e s e n t the wires as w e l l b e f o r e that at a l l . the ground There Furthermore, ceiling Robertson the metal conduit saw conduit, testified that the was EMT, was MC. entered the into the c e i l i n g , "items" conduits coming on the not that when he but c l a d c a b l e s and c o n d u i t s away f r o m t h e j u n c t i o n b o x . however, t e s t i f i e d he attached to anything. (metal o f [ h i m ] " a n d t h a t he d i d n o t s e e t h a t had been p u l l e d His co-employee, Smith, i n the c e i l i n g however, testified i n front conflicting clad) he saw " t h a t t h e r e w e r e m e t a l t h a t was r i g h t other he not f o r EMT. Smith, that was called Romex i n t h e c e i l i n g . tubing also that the building plans t h a t he saw EMT, MC or was any r e p a i r s wire of conduit present testified conduit up and regarding the type Gaddy t e s t i f i e d Robertson and right." i n the conduit testimony area. to y o u saw could Smith same see t h a t t h a t when he l o o k e d the conduit further testified circuit, so 7 that there there o u t o f t h e same j u n c t i o n b o x . was n o t were were other 1081351 Jerry installed wire Gaddy according missing, would not phase. was and have There t o how passed no there existed there was no to and no Gaddy the the wiring during offered evidence the to j u n c t i o n box to then the been at the the show initial short that a wiring; and conduit was the time wiring construction to show t h a t ground the s h o w how offered installed offered had i t , i . e . , w i t h the Romex p r e s e n t , evidence testimony attached i f inspection was when that S m i t h saw b o t h MC was created; short not testified Gaddy initially installed i t . Wantonness Robertson a judgment argues as wantonness. a matter to c r e a t e conclude that j u n c t i o n box those and and acted of with fact the in the was entering issue t o use light switch to e i t h e r one cause of or both his the wantonness in his motion for a new d i d not trial. 8 raise In the support of the of injuries. this c o u r t b e c a u s e he could i n d i f f e r e n c e to i t s Gaddy a r g u e s t h a t R o b e r t s o n f a i l e d t o p r e s e n t trial of sufficient from which a j u r y from the proximate on there reckless failure erred Gaddy that a ground wire was court for argues t h a t the protections trial law a question Gaddy EMT the of Robertson evidence d u t y t o use that argument to issue i t s position, 1081351 Gaddy cites 1034, Carter 1035 v. Treadway (Ala. 1992), Trucking, i n which this Inc., Court 611 So. stated: "[A] t r i a l c o u r t c a n n o t t o r u l e on a m a t t e r n o t by i t . See a l s o L o w d e r 2d 1240 (Ala. 1989). failure to raise a argument i n h i s motion consideration of the appeal." be h e l d i n e r r o r f o r f a i l u r e presented to i t or decided R e a l t y Co. v . S a b r y , 542 So. Therefore, [Robertson's] sufficiency-of-the-evidence f o r new t r i a l p r e c l u d e s any merits of this issue on We this a note Court 1993), to erred in The called law, see a held a bar for the was 2d decided 1012 (Ala. plaintiff's that the of to present motion R. the So. the failure trial defendant the reasoned court on wantonness that, the his issue although trial court an with sufficiency-of-the-evidence f o r a judgment Ala. 630 trial review Court revisit renewed 50, that verdict movant's f a i l u r e Rule a p p e a l of the not after Carter Black, f o r a new Clark to year v. Court did i n a motion (now Civ. this claim opportunity called Clark directing a appeal. issue than i n h i s motion unsuccessful an less decided wantonness on that i n which allege had 2d for Civ. notwithstanding a judgment P.) as precludes the a verdict matter of reversal on d e n i a l of the m o t i o n f o r a d i r e c t e d v e r d i c t judgment as a matter of P.), 9 law, see Rule 50, Ala. (now R. 1081351 "a trial judge does not grant a motion for a [judgment as a m a t t e r of law] w i t h a view to reserving the issue for revisitation. On the c o n t r a r y , he d o e s s o w i t h a v i e w t o t e r m i n a t i n g t h e issue, that i s , t o 'save the time and trouble involved i n a lengthy jury determination.' 9 C. W r i g h t & A. M i l l e r , F e d e r a l P r a c t i c e a n d P r o c e d u r e § 2521 (1971). " T h a t t h e R u l e s do n o t , a n d , l o g i c a l l y , need not, contain a [judgment-as-matter-of-law] ' c o u n t e r p a r t ' a p p l i c a b l e t o a p a r t y a g a i n s t whom a v e r d i c t has been d i r e c t e d , h a r d l y d e s e r v e s a p a s s i n g reference. Had t h e t r i a l c o u r t [ e n t e r e d a j u d g m e n t as a m a t t e r o f l a w ] f o r B l a c k on b o t h t h e o r i e s o f r e c o v e r y i n t h i s c a s e , t h a t i s , on t h e w a n t o n n e s s c l a i m and t h e n e g l i g e n c e c l a i m , no post-judgment m o t i o n would have been r e q u i r e d t o p r e s e r v e the sufficiency-of-the-evidence issues for appellate r e v i e w . L o g i c and t h e p o l i c y o f t h e Rules o f C i v i l and A p p e l l a t e P r o c e d u r e t h u s c o m p e l us t o c o n c l u d e that t h i s case i s not w i t h i n the s u f f i c i e n c y - o f - t h e evidence exception expressed in McGough v. Slaughter, 395 So. 2d 972 (Ala. 1981). Consequently, we will proceed to review the s u f f i c i e n c y of the evidence of wantonness." 630 So. 2d a t 1016. We a g r e e w i t h t h e r e a s o n i n g we o v e r r u l e C a r t e r t o t h e e x t e n t We n o t e t h a t C a r t e r r e l i e s court when did that i tc o n f l i c t s with decide court Clark. on t h e f a l s e p r e m i s e t h a t t h e t r i a l c a n n o t be h e l d i n e r r o r f o r a m a t t e r n o t p r e s e n t e d the t r i a l A i n C l a r k , and there, i n granting a directed to i t verdict, the issue. thorough review of the record evidence that would warrant submission 10 reveals no s u b s t a n t i a l of the wantonness issue 1081351 to the jury. Robertson Jury to instructions present substantial with "knowledge of was likely result to the danger from B u r l i n g t o n N o r t h e r n R.R. 1990). As inspection and his trial a occur f o r a ground court i n this as act noted, which s h o r t can judgment an a of that So. 2d 1011, 1021 (Ala. passed city work J e r r y Gaddy on testified, was c o n s t r u c t i o n and law injury act." properly granted matter acted to t o come l o o s e a f t e r case Gaddy omission undisputed, after required or Gaddy's was that a consciousness separate occasions. testimony, electrical possible two or wantonness evidence v . W h i t t , 575 previously on for that an that i t i s construction. The Gaddy's m o t i o n for Robertson's wantonness claims. Affirmative Defenses of C o n t r i b u t o r y Negligence Assumption ^At trial, Gaddy asserted c o n t r i b u t o r y n e g l i g e n c e and of for Robertson. At court verdict the the Risk affirmative assumption defenses denied i n f a v o r of his o f l a w as t o t h o s e motion. Gaddy, After Robertson 11 of o f t h e r i s k on t h e p a r t the c l o s e of the testimony, Robertson a j u d g m e n t as a m a t t e r trial of and the moved two jury moved issues. returned f o r a new The a trial, 1081351 arguing that the defenses two t h e r e was to the no evidence to warrant submission of jury. "'A [ j u d g m e n t as a m a t t e r o f l a w ] i s p r o p e r (1) where t h e nonmoving p a r t y has failed to present substantial evidence regarding some element e s s e n t i a l t o h e r c l a i m , o r (2) w h e r e t h e r e i s no d i s p u t e d i s s u e of f a c t upon w h i c h r e a s o n a b l e p e r s o n s c o u l d d i f f e r . R u l e 5 0 ( a ) , A l a . R. C i v . P.' T e a g u e v . A d a m s , 638 So. 2 d 836 ( A l a . 1 994); see John R. C o w l e y & B r o s . , I n c . v . B r o w n , 569 So. 2 d 3 7 5 , 376 ( A l a . 1 9 9 0 ) ; K o c h v . S t a t e F a r m F i r e & C a s . C o . , 565 So. 2 d 2 2 6 , 228 ( A l a . 1 9 9 0 ) ; D o b b s v . A l a b a m a P o w e r C o . , 549 So. 2 d 3 5 , 36 ( A l a . 1 9 8 9 ) . ' I n r e v i e w i n g a r u l i n g on a m o t i o n f o r a [ j u d g m e n t a s a m a t t e r o f law], t h i s Court views a l l the evidence i n a l i g h t most f a v o r a b l e t o t h e nonmovant and e n t e r t a i n s s u c h r e a s o n a b l e e v i d e n t i a r y i n f e r e n c e s as t h e j u r y w o u l d be f r e e t o d r a w . ' C a t o v . L o w d e r R e a l t y C o . , 630 So. 2 d 3 7 8 , 381 ( A l a . 1 9 9 3 ) . We m u s t d e t e r m i n e w h e t h e r the nonmovant--defendant [Gaddy]--presented s u b s t a n t i a l evidence s u p p o r t i n g each element of i t s a f f i r m a t i v e d e f e n s e . § 1 2 - 2 1 - 1 2 ( a ) , A l a . Code 1975; K o c h v . S t a t e F a r m F i r e & C a s u a l t y C o . , 565 So. 2 d 226 ( A l a . 1 9 9 0 ) . ' [ S ] u b s t a n t i a l e v i d e n c e i s e v i d e n c e o f s u c h w e i g h t and q u a l i t y t h a t f a i r - m i n d e d p e r s o n s i n the e x e r c i s e of i m p a r t i a l judgment can r e a s o n a b l y infer the existence of the fact sought to be p r o v e d . ' West v. F o u n d e r s L i f e A s s u r a n c e Co. of F l o r i d a , 547 So. 2 d 8 7 0 , 871 ( A l a . 1 9 8 9 ) . " Spence v. S o u t h e r n P i n e E l e c . C o o p . , 643 So. 2 d 9 7 0 , 971 ( A l a . 1994). We the first risk. responsible address the a f f i r m a t i v e defense of assumption During the t r i a l , for his entered the c e i l i n g own Robertson safety. He testified stated that that he before a r e a o f t h e d r i v e - i n r o o m , he e x a m i n e d 12 of was he the 1081351 area where metal clad [him]." cables He "pulled the indicating be w o r k i n g and c o n d u i t s stated away" testified that he w o u l d that from he the that was junction "Q. You were ceiling fairly [were] box. attached to there were r i g h t i n front of any of the Smith, through the c e i l i n g not the c i r c u i t that "saw t h a t d i d not see t h a t when he l o o k e d conduit a n d he the conduit however, tile, he saw junction was n o t g r o u n d e d : a c t u a l l y - - y o u a c t u a l l y were i n t h a t close a f t e r the incident, correct? "A. Y e s , s i r , I d i d n ' t a c t u a l l y go t o t h e t o p o f the l a d d e r and i n s i d e t h e w a l l , b u t w i t h t h e c e i l i n g t i l e o u t y o u c o u l d p r e t t y much s e e e v e r y t h i n g that was p r e t t y much t h e r e . fi "Q. You c o u l d "A. see where Yes, s i r . "Q. ... Y o u c o u l d pipe? "A. t h e j u n c t i o n box was? see t h e conduit on t h e w a l l , t h e Yes, s i r . "A. F i r s t v i s i t , yes, s i r . A f t e r the i n c i d e n t had taken place, before any changes had been made, b e f o r e a n y b o d y h a d b e e n on t h e s c e n e t o w o r k i n t h e c e i l i n g , I d i d s e e ... f l e x c o n d u i t g o i n g f r o m t h e switch l o c a t i o n t o the j u n c t i o n box. The c l a d c o n d u i t i t s e l f , w h i c h i s f l e x i b l e a n d m e t a l , was n o t at that time attached t o the box. 13 box, 1081351 "Q. And i t was j u n c t i o n box? not present a l l the way to the "A. That i s c o r r e c t . I t a p p e a r e d i n l e n g t h t o be a b l e t o h a v e made i t t o t h e j u n c t i o n b o x , b u t i t was not attached. ..." (Emphasis added.) Assumption which of the i t i s alleged that care by p l a c i n g with an appreciation affirmative defense defendant and an the 2d 1066, assumption to exercise i n t o a dangerous risk. So. of to f a c t u a l s i t u a t i o n s i n Harris of the Equip. "The risk appreciation of, the danger danger." 2000). conduit Shortly after did see i t electrical the any was Ex p a r t e Robertson disconnected not requires the p l a i n t i f f had p o s e d by t h a t before he accident, an unseen that received Jerry disconnected the p l a i n t i f f Potmesil, he faced; that the 2d 340, d i d not see the e l e c t r i c a l Jerry the Gaddy actually s h o c k a n d t h a t he d i d n o t d i s c o v e r 14 So. Gaddy v i e w e d conduit. short 785 that knowledge consented to bear testified position Food (1) t h a t the p l a i n t i f f v o l u n t a r i l y due ( A l a . 1990). 1068 v. prove (2) t h a t that or h e r s e l f of I n c . , 559 the applies the p l a i n t i f f f a i l e d himself Specialist, (Ala. risk of, and risk 343 any shock. area and testified caused the that the primary 1081351 g r o u n d w i r e was other have he words, seen Smith was at the after accident. primary that after there i f we conduit, there disconnected r e c o r d , we been ground wire was through the no the that was way no primary accident evidence In to disconnected ceiling. he saw indicating was Robertson for Robertson ground w i r e . saw on the to that that what before the ground, disconnected have our seen review the of the proceed w i t h knowledge of t h e d a n g e r p o s e d by t h e d i s c o n n e c t e d conduit should have that Robertson Based Although a secondary saw when conduit what R o b e r t s o n conduit Robertson d i d not v o l u n t a r i l y that conclude the switch plate. for way t h e a c c i d e n t was assume removed the no was Additionally, even have j u n c t i o n box testified saw would the disconnected, Smith so there that looked m i s s i n g u n t i l he grounded prevented an electrical committed reversible a f f i r m a t i v e defense disposition pretermit and the on shock. error in unseen short in the issue the of instructing assumption i s s u e of issues raised by Conclusion 15 the A c c o r d i n g l y , the the of assumption of the r i s k . d i s c u s s i o n of remaining the of wire trial jury and court on Because of the risk, the our we contributory negligence Robertson. 1081351 We trial affirm court However, with because instructing of we verdict Robertson's Murdock, we to Robertson's hold must and that reverse remand negligence AFFIRMED Cobb, regard of law entered the wantonness trial court t h e j u r y on t h e a f f i r m a t i v e d e f e n s e the r i s k , jury's t h e j u d g m e n t as a m a t t e r this t h e judgment action by t h e claims. erred of assumption entered for a in new on t h e trial on claims. I N PART; R E V E R S E D C . J . , and Lyons, I N PART; AND Woodall, a n d Shaw, J J . , c o n c u r . 16 Stuart, REMANDED. Smith, Parker,
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