Monte R. Gray v. BellSouth Telecommunication, Inc.
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IN THE COURT OF APPEALS OF THE STATE OF MISSISSIPPI
NO. 2007-CA-02210-COA
MONTE R. GRAY
APPELLANT
v.
BELLSOUTH TELECOMMUNICATION, INC.
DATE OF JUDGMENT:
TRIAL JUDGE:
COURT FROM WHICH APPEALED:
ATTORNEY FOR APPELLANT:
ATTORNEYS FOR APPELLEE:
NATURE OF THE CASE:
TRIAL COURT DISPOSITION:
DISPOSITION:
MOTION FOR REHEARING FILED:
MANDATE ISSUED:
APPELLEE
10/16/2007
HON. SHARION R. AYCOCK
LEE COUNTY CIRCUIT COURT
CHRISTOPHER G. EVANS
DAVID W. UPCHURCH
ROBERT K. UPCHURCH
JOSHUA SHEY WISE
CIVIL - PERSONAL INJURY
DIRECTED VERDICT AND FINAL
JUDGMENT ENTERED IN FAVOR OF
BELLSOUTH
AFFIRMED: 06/30/2009
BEFORE LEE, P.J., GRIFFIS AND CARLTON, JJ.
GRIFFIS, J., FOR THE COURT:
¶1.
Monte R. Gray appeals the circuit court’s grant of a directed verdict in favor of
BellSouth Telecommunications, Inc. (“BellSouth”) in a negligence action. Gray argues that
the circuit court erred by granting the directed verdict based on Gray’s failure to make a
prima facie showing of negligence via the doctrine of res ipsa loquitur. We find no error and
affirm.
FACTS
¶2.
On March 8, 2002, Gray was driving southbound on Gloster Street in Tupelo,
Mississippi. James M. Young was driving his vehicle directly behind Gray. A telephone
wire owned by BellSouth was sagging across the roadway at a height such that it made
contact with the windshield or top of a passenger vehicle passing beneath. The wire caused
many drivers to hurriedly apply their brakes to avoid hitting the hanging wire at full speed.
Gray saw the wire as he approached and instinctively applied his brakes. Young did not slow
his vehicle in time, and he struck the rear of Gray’s vehicle.
¶3.
Gray’s vehicle was totally damaged in the collision. Gray immediately experienced
pain in his back and neck, and he eventually underwent cervical-fusion surgery. He
continues to suffer pain and physical limitations as a result of the accident.
¶4.
Following the accident, a utility worker from another company cut the hanging wire
and removed it from the street. BellSouth later received a customer complaint from
Northeast Petroleum, a business located on Gloster Street near the place of the accident.
Northeast Petroleum reported that its telephone line did not have a dial tone. Meletius
Griffin, a BellSouth employee, was sent to investigate the problem. He found the cut wire
and installed a new wire across the roadway.
¶5.
Gray filed an action for negligence against BellSouth, as the owner of the sagging
wire, and Young. Gray claimed that BellSouth negligently maintained the telephone wire
and negligently caused or allowed the telephone wire to exist as an inherently dangerous
condition on the roadway. Young filed a cross-claim against BellSouth based on the
identical claims brought by Gray against BellSouth.
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¶6.
Gray presented his case to the jury. At the end of his evidence, defendants BellSouth
and Young moved for a directed verdict pursuant to Rule 50 of the Mississippi Rules of Civil
Procedure. Young’s motion was denied. However, the circuit judge found that there was
insufficient evidence for the case against BellSouth to go to the jury. The circuit judge stated
that Gray attempted to prove a breach of duty on the part of BellSouth through the doctrine
of res ipsa loquitur, but Gray did not prove the necessary elements of that doctrine. Thus,
BellSouth’s motion for a directed verdict was granted.
¶7.
As a result, Young voluntarily dismissed his cross-claim against BellSouth. The trial
resumed, and Young presented his defense to the jury. At the end of all the evidence, Gray
and Young decided to waive their right to a jury decision and submitted the case to the circuit
judge for a verdict. A verdict in favor of Gray and against Young was returned. The circuit
court found Young to be 100% at fault for Gray’s injuries and awarded $185,000 in damages
to Gray.
¶8.
A final judgment was entered in the case, and Gray filed his appeal to this Court. His
only claim on appeal is that the circuit court erred by ruling that Gray failed to meet the
requirements of the doctrine of res ipsa loquitur regarding his claims of negligence against
BellSouth.
STANDARD OF REVIEW
¶9.
On appeal, we conduct a de novo standard of review of motions for a directed verdict.
Munford, Inc. v. Fleming, 597 So. 2d 1282, 1284 (Miss. 1992). When deciding whether the
granting of a motion for a directed verdict was proper by the lower court, this Court considers
the evidence in the light most favorable to the non-moving party and gives that party the
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benefit of all favorable inferences that may be reasonably drawn from the evidence presented
at trial. Id. If the favorable inferences have been reasonably drawn in favor of the
non-moving party so as to create a question of fact from which reasonable minds could
differ, then the motion for a directed verdict should not be granted and the matter should be
given to the jury. Id.
ANALYSIS
Whether Gray proved the necessary elements of the doctrine of res ipsa
loquitur in his negligence claim against BellSouth.
¶10.
Gray argues that he set forth a prima facie showing of negligence on the part of
BellSouth through the doctrine of res ipsa loquitur; therefore, the circuit court improperly
granted a directed verdict in favor of BellSouth. BellSouth contends that the directed verdict
was proper because Gray offered no evidence, circumstantial or otherwise, as to the claims
of negligent installation, negligent maintenance, and negligent inspection.
¶11.
There is no dispute as to the circuit court’s finding that Gray failed to put forth any
direct evidence of BellSouth’s negligence; thus, Gray’s claim now rests on the application
of the doctrine of res ipsa loquitur. “Res ipsa loquitur, literally translated ‘the thing speaks
for itself,’ is simply one form of circumstantial evidence.” Read v. S. Pine Elec. Power
Ass’n, 515 So. 2d 916, 919 (Miss. 1987) (citing Dees v. Campbell, 183 So. 2d 624, 626
(Miss. 1966)). “Under the doctrine of res ipsa loquitur, negligence can be inferred in certain
factual situations.” Powell v. Methodist Health Care-Jackson Hosps., 876 So. 2d 347, 349
(¶7) (Miss. 2004) (citing Winters v. Wright, 869 So. 2d 357, 363 (¶12) (Miss. 2003)).
However, the doctrine should be applied cautiously by the Mississippi courts. Id.
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¶12.
To apply res ipsa loquitur, the plaintiff must prove three elements:
First, the defendant must have control and management of the instrumentality
causing the plaintiff's injury. [Second], the injury must be such that in the
ordinary course of things it would not occur if those in control of the
instrumentality used proper care. Third and finally, res ipsa loquitur only
applies where the injury is not a result of the plaintiff's voluntary act.
Id. (internal citations and quotation omitted).
¶13.
The circuit judge found that Gray failed to prove prong two of the test – that in the
ordinary course of things, the injury would not have happened if those in control had used
proper care. In his brief on appeal, Gray addresses the second prong by quoting one question
asked of Griffin, the BellSouth technician:
Q:
Would you agree with me based on the strength of these wires that you
describe and the strength of these J hooks . . . [i]f you properly install
one of those, in the normal course of things it should not fall.
A:
Yes.
Gray cites no legal authority or any other factual evidence, and this statement alone does not
satisfy the second prong of the doctrine of res ipsa loquitur. Griffin’s statement merely
indicates that a properly installed line should not fall in the normal course of things. It does
not in any way show a failure of BellSouth to use proper care. In fact, the proof offered by
Gray at trial shows that there was no improper installation of the wire or any type of damage
to the poles or installation equipment. Griffin testified that he had never seen a wire fall
without “something running into it and hitting it or something falling on it.” Griffin further
stated that he was told by a woman working at Northeast Petroleum that a garbage truck hit
the wire.
¶14.
As BellSouth argues, this testimony by Griffin established a reasonable explanation
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for the sagging line. Moreover, res ipsa loquitur does not apply when “there has been
specific proof which discloses some reasonable explanation for the happening other than the
negligence charged against the defendant.” Winters, 869 So. 2d at 364 (¶15) (quoting Yazoo
& M.V.R. Co. v. Skaggs, 181 Miss. 150, 158, 179 So. 274, 277 (1938)).
¶15.
The supreme court has held:
Although negligence, like any other fact, may be proved by circumstantial
evidence, there must be evidence from which reasonable men may conclude
that, upon the whole, it is more likely that the event was caused by negligence
than that it was not. The inference must cover all of the necessary elements of
negligence and must point to a breach of defendant's duties.
Dees, 183 So. 2d at 626. Here, Gray essentially argues that BellSouth is negligent because
it owned the sagging wire. Gray pleaded negligent installation, negligent maintenance, and
negligent inspection, but he failed to offer any proof that would point to a breach of these
duties. As the circuit judge held:
In the end, the inference must be a legitimate inference. It must cover all the
necessary elements of negligence, and it must point to a breach of duty. There
has been no evidence of any damage to any poles or hardware. There has been
no evidence of any breach of maintenance. There has been no evidence of any
breach of installation. In fact, the only proof that we really have on installation
is that the J hooks were set at a sufficient height . . . . There’s been no
evidence of any breach of inspection, especially in light of [the fact that] there
was no actual notice [of] the downed line and the fact that at best the proof
shows that the line was down only some 30 to 45 minutes prior to the accident.
¶16.
Gray failed to prove that the sagging wire was more likely than not caused by a
negligent act of BellSouth. We agree with the circuit court that there was insufficient
evidence for this case to go to the jury. Gray failed to meet the second element of res ipsa
loquitur. Without the application of that doctrine, there is no evidence of BellSouth’s
negligence for a jury to consider. Accordingly, the directed verdict in favor of BellSouth is
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affirmed.
¶17. THE JUDGMENT OF THE CIRCUIT COURT OF LEE COUNTY IS
AFFIRMED. ALL COSTS OF THIS APPEAL ARE ASSESSED TO THE
APPELLANT.
KING, C.J., LEE AND MYERS, P.JJ., IRVING, BARNES, ISHEE, ROBERTS,
CARLTON AND MAXWELL, JJ., CONCUR.
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