*1 APPEALS COURT OF Beck v. Carolina Power BECK, Beck,
SHEILA LOCKLEAR Estate of Administratrix Ivan LIGHT CAROLINA POWER & COMPANY Deceased v.
No. 8110SC833 (Filed 1982) 1 June 4; Electricity Negligence § § degree power 1. 37.3— on instructions of care company wrongful following In a death action the of electrocution a man a utili- wire, ty judge slightly stating the trial incorrect in of that “another rule” however, negligence applies power companies; preju- to the no instructions had merely jury dicial effect on the defendant the instruction informed the degree company power maintaining the of inspecting care owed a its care, degree high degree ordinary is a lines of which of care is different from ordinary required care under circumstances. 4; Electricity Negligence § § degree by utility 37.3— of care instructions — company wrongful against power a company, death action a judge the trial did prejudicial by failing couple error “highest degree commit the term of practical operation every care” with “consistent with the of its business” on oc- care,” judge “highest phrase degree casion which the used the since duty judge power clearly the first company, when set forth the he power company degree stated a care which was “commen- practical operation utility surate with the of the business of an electric com- pany.” equal § 34— parties 3. Trial stress to contentions of both instructions — plaintiff presented testimony Where of 19 witnesses and defendant witnesses, testimony presented only by reviewing three the evidence presented stating that the defendant contended untrue, plaintiffs allegations adequately obliga- were the court fulfilled its tions to instruct the as to defendant’s contentions. § concerning prospective 7.4— 4. Death evidence plaintiff economic losses of properly admitted wrongful trial properly permitted court expert death action an testify prospective economics on the plaintiff economic losses testimony testimony decedent’s death where his was based on super- of work visors, testimony data, regarding wage the decedent’s skills and ex- pert’s expertise ability own project person’s likely economic status. provided Such evidence a reasonable for the computation basis was, best, though even only approximate. result wrongful § 7.4— 5. Death competency death hypothetical question action — action, wrongful aIn death properly permitted trial court expert give opinion response his hypothetical question to a referring group persons statistical to which belonged. the decedent *2 Light Co.
Beck v. Carolina Power & — 10; prop- Electricity wrongful § Death 7.6 death § 6. action — erly submitted to by guy wrongful in which decedent was electrocuted a In a death action plaintiffs pole, power evidence which tended to defendant's wire attached Safety of of and defend- violations the National Electrical Code show numerous of to merit the submission of the issue own standards was sufficient ant’s jury. punitive damages to the concurring. Judge Whichard C.) (Harry dissenting.
Judge Martin Godwin, en- Judge. Judgment by APPEAL Court, County. Heard Superior 1981 in February 17 tered WAKE April of Appeals in the Court Beck, Daryl a death following arose This action alive at his last seen Indian. Beck was 24-year-old Lumbee July July on 1 1978. On County Robeson home in mother’s home sur- behind his mother’s body found in the woods his was crossed frequently This area was pond.” “Bill’s rounding woods and fished community who hunted of this residents halfway found under Daryl lying Beck was pond. swam in the and Company power & Light Power wire attached to Carolina guy a within few feet of a low a vegetation area of an pole through these woods. which crossed path found, his palm the skin on the body was When Beck’s was guy skin-like substance on the and a hand was burned right An re- autopsy ground. feet from the approximately wire 3-1/2 hand, the soles of both feet. left leg on his right vealed burns his at the time of good to be in health Beck appeared Otherwise a to be pathologist of death was determined The cause death. electrocution, contact with electrocution caused consistent wire. energized hand with an right the deceased’s wire guy on the found to the skin-like substance In addition Leaves and burned. appeared near the wire July, guy leaves scorched, forming were of the wire guy the base grass guy at the anchor. in diameter spot approximately burned 1-1/2' wire, on the including burns on the guy marks were Fresh burn arrestor. lightning below the wire 18" above and to show that condition evidence tended Plaintiff’s follows: pole attached equipment COURT OF APPEALS Light Beck v. Carolina Power & (1) The transformer attached to pole 1998 was in a located congested pole. corner placement Due to this of the transformer, the lightning arrestor and arrestor cap, parts transformer, are attached to the only were 1" to from the 3-1/2" guy wire at the body time Beck’s was found. This close proximity lightning arrestor and cap, energy- arrestor wire, carrying part system, electrical non- guy energized part system, was in violation both Carolina own Company’s specifications specifica- Code, tions of the National Electrical Safety mandatory *3 safety minimum rules of North Carolina with respect to electric utilities. The National Safety Electrical requires Code minimum of 7.8" clearance 13,000 between an energized and non-energized part volts as was carried this transformer.
(2) An examination of the lightning Daryl arrestor following Beck’s death revealed that lightning the which jumper, arrestor connects the lightning arrestor to the arrestor cap, was separated from the arrestor lightning being due broken burned off in of presence extreme heat. cap On arrestor signs were on arcing lightning arrestor were signs of melted black Potter, insulation. According to defendant’s Bill employee who testified that the wire guy was lightning arrestor 3-1/2" facilities, July on his 2 of the inspection displacement this arrestor cap from the lightning arrestor resulted the cap being guy further from the wire at the time at which he it observed than it would have been before it off light- had broken from the ning arrestor.
(3) An examination guy wire revealed that it was neither grounded nor insulated. This was violation both the Safety National Electric Code and Carolina Power & Light Com- pany’s own The specifications. Safety National Electrical re- Code that all quires guy grounded wires if not insulated.
(4) slack; Examination of the wire guy also revealed it to be so slack it pulled that could be in either direction when grabbed touched, when simply sway. and that Bill would Potter testified he it 18" in guy that moved either direction. The slackness Safety wire was in violation of the National Electrical Code that these rules that with require guy wires be maintained they carry sufficient so that their wire guy tautness load. This was so maintained. & Power Carolina
(5) Daryl Beck’s death days following During the several pole on 1998. was observed at the transformer arcing periodic the last at trial revealed presented Further evidence examined was pole question on which the occasion documented was in time, new installed a Builders Sumpter 1974. At in the that transformer failing place on that pole, transformer inspection performed No was pole. on position safest work for Sumpter Builders’ Light Company Carolina safely. performed that the work had been purpose insuring any produce was unable to Light Company Power & Carolina inspected been indicating pole that this record or witness any time was in safe condition at insuring that it purpose the between July that under the testimony showed through expert Evidence which July, guy on 2 wire under to exist conditions found and on which a skin-like body had been found Beck’s found, being become energized could have substance grasped. this wire had been Physical guy evidence showed arrestor cap, energized with the lightning in contact brought part wire would voltage guy with system. voltage electrical sufficient would have been of energized have been person. to kill a consisted of *4 damages on the issue of at the trial
Evidence former family, employers. and testimony Daryl Beck’s friends pro- plaintiff regarding also testified for An economist expert $200,000 awarded jury of the decedent. The of income loss jected $175,000 punitive damages plaintiff and compensatory based was grossly negligent. the defendant finding on a that and L. by Anne R. William Anderson & Thorp, Slifkin Slifkin Brooks, Locklear, plaintiff- Jacobs Dexter Brooks & Thorp; for appellee. Fulton Skinner Howard Manning, &
Fred D. Poisson defendant-appellant. Manning E. (Robert M.), Judge.
MARTIN Negligence Jury Charge Issue of on the The [1] failed trial court Defendant’s properly first instruct argument on the issue appeal is that the trial of negligence. court The instructed: COURT OF 377 v. Carolina Power ordinary
What is It’s a lack of care. It’s a negligence? reasonably failure to do what a careful and prudent person done, have doing would or the which a something done; reasonably careful prudent person would not have all of the circumstances considering existing at the time and on the occasion in question question.
The court continued with another rule of negligence for electric utility companies:
There is another rule with respect negligence ap- utility plies to electric The rule companies. negligence I you have just read to It applies individuals. is a proper definition of An negligence. utility electric owes to company care, care, public highest ordinary degree but installation, the highest degree of care for the safe safe maintenance safe inspection of the electrical ap- lines and as paratus is commensurate with the practical operation utility business of the company. electric We with agree there is no separate rule of utility for an electric company. always The standard is the rule of the man or the prudent care which a man prudent is, to use under like circumstances. “What ought reasonable care course, varies in different presence cases and of dif- care, ferent conditions. The standard is due [Citation omitted.] and due care means commensurate care under the circum- Co., 553, 560, stances.” Jenkins v. Electric 119 S.E. N.C. (1961). 767, 772 rule, As a general power companies are held to the “utmost diligence” injury to others from striving prevent electricity. (1966). Co., 119, 130, Keith v. Gas S.E. 2d electricity inherently view courts dangerous apply a cor- respondingly “higher standard of care.” Wake University, Forest North Carolina Tort Practice Handbook
In Ellis v. *5 decedent been found dead near a path with an electrical wire case, in hand. As in his this the wire was uninsulated and the pole was found be in an unsafe condition. No one in- had been seen specting repairing the line. In discussing duty the of this de- fendant, the Supreme Court stated: OF APPEALS Carolina Power
Beck v.
there,
lay
days, like a
perhaps
serpent.
It
several
wire]
[the
victim,
subtle,
rattle-snake warns its
not so with this
The
but
and
matter
death-producing power.
invisible
It is a
of com-
knowledge that this wonderful force is of untold
mon
benefit
Every
. .
to our industrial
life. .
legitimate encouragement
given
should be
to its manufacture and distribution for use
utility
manufacturing plants, homes
public
corporations,
hand,
other
highest degree
and elsewhere. On the
of care
required
should be
the manufacture and distribution of
deadly
in the
energy
inspection
this
maintenance and
appliances
instrumentalities and
used in
this
transmitting
and subtle power.
invisible
362,
Id. at 560, 772, In v. Electric at 119 S.E. 2d supra Jenkins reasoned: court use, instrumentality who installs an for a known
One limb, must great danger which involves a life and exercise danger of care commensurate with the degree pro- a may subject those who rightfully peril. tection who duty rests those make distribute the upon Electricity only . dangerous, . . is not dangerous current invisible, noiseless, odorless, deadly, but it is even of the peril to detect the un- rendering impossible presence It finished. is for this reason that the fatal work is til liability duty is a breach of it fixes for the imposed, high duty whom is owed. injury to those to resulting [Citation omitted.] 7, 11, (1935), Mills, 179 S.E. v. Silk N.C. Lynn “ ” degree care’ acknowledged ‘highest Supreme Court to hold a power improper and refused company
owed
“it
which stated that:
was its
charge
judge’s
[the defendant’s]
lookout,
vigilance,
and to
keep a constant
constant
duty to
its
outside of
high degree
keeping
equipment
care
observe
12-13,
Likewise,
179 S.E.
good
Id.
house
condition.”
1, 4,
260 S.E.
v. Town
Ayden,
Letchworth
of
denied,
(1980),
2d 396
rev.
disc.
“
care and watchful-
great,
noted:
danger
‘The
this Court
” (Citation omitted.)
it.’
See also
must be commensurate
ness
Lumberton,
Willis
Rice
*6
APPEALS
OF
COURT
Light
Power &
Co.
Beck v. Carolina
Co.,
Hale v.
N.C. App.
Power
denied,
S.E.
disc. rev.
that a
of
stating
supplier
[2] the
term “highest
The defendant
degree
also
protests
of care”
with “consistent
the
court failed to
with the prac
couple
the
every occasion on which
of its business”
tical operation
Judge
care.” When
God-
degree of
“highest
the phrase
used
judge
clearly
he
duty
company,
the power
set forth
win first
care
degree
“. . .
highest
company
stated
installation,
inspection
maintenance and safe
safe
safe
for the
with the
as is commensurate
apparatus
lines and
the electrical
utility
an electric
company.”
business
operation
practical
added.)
of care the
degree
discussing
Later
(Emphasis
stated,
.
.”
has
. The defendant
of care
high degree
judge
“[t]his
as
charge
the context of
within
showing
made no
fact,
whole,
error.
prejudicial
constituted
this omission
because the
prejudicial
not be deemed
could
charge
given
the defendant
was the failure of
alleged
plaintiff
the rides and
regulations
rules and
by its own
to abide
Safety
Electrical
Code
by the National
promulgated
regulations
See Rule
Utilities Commission.
law
force of
given
and
R8-26,
Utilities Com
the North Carolina
Regulations
Rules
“con-
the phrase
judge
repeat
any failure of
Thus
mission.
v. Carolina Power
have
of its business” could
operation
the practical
with
*7
sistent
this action.
on the outcome of
no material impact
[3]
The defendant’s
the trial court did
final argument
not
give equal
concerning
stress to the
jury
contentions of
charge
party
is without merit. Where one
This claim
the defendant.
other, it is not er
substantially more evidence than the
presents
of that
evidence
recapitulation
party’s
for the court’s
ror
of the other party.
of the evidence
recapitulation
than the
longer
503, 239 S.E.
574
disc.
Pressley,
Love v.
N.C.
(1978).
denied,
without merit and as a basis for reversal the verdict appellant is asserted below, merely to party on that demonstrate the burden is error, were in but also to the court’s instructions instructions are considered in judge’s that when the demonstrate the error fragments, prejudi- to in entirety, opposed as their success and amounted to chance of appealing party’s cial Otherwise, reversal or a new right. the denial of a substantial 155 S.E. 2d Gregory Lynch, unwarranted. trial is Construction Burgess failed to meet this burden. The defendant has Damages Compensatory [4] mitting The defendant next into evidence the argues testimony of Dr. J. that the trial court C. Poindexter, on erred ad COURT OF Beck v. Carolina Power & Poindexter, economic losses of the Dr. prospective plaintiff. as an economics
qualified expert, testified that based on the dece- education, race, dent’s life expectancy, geographic location and sex he project could the loss of income support, reduced to pres- value, monetary ent incurred Beck’s wife Sheila and daughter Daryl Rekelle as a result of Dr. Beck’s death. Poindexter testified that the figures his produced through calculations were consistent with the by Daryl actual received Beck earnings during his short history. work Dr. Poindexter pointed out that earnings people within the statistical which Dr. group Poindexter utilized fact, representative of this decedent were low. in arriving at opinion, his Dr. Poindexter used computations which presumed initial earnings less than figure that amount which *8 earned during year the last of his life. The economist $186,245 testified that a loss figure was appropriate Daryl if 60, $204,037 Beck had worked until age that a figure addition, appropriate presuming a work life to 65. In Dr. Poindex- ter valued the present Daryl value of Beck’s projected in-home $47,653. services for 10 per hours week at minimum at wage, Dr. testimony of Poindexter was not improper specula- tion as defendant contends. The Assembly General intended the wrongful death fully statute to as as possible compensate persons 395, for the loss of their decedent. Bowen v. Rental (1973). statute, 2d 789 In allowing recovery under this that, the North Carolina courts have recognized by necessity, some speculation necessary in determining In damages. Bowen 419, 805-06, at 196 S.E. 2d the court monetary noted that recovery cannot be denied “because simply yardstick no for ascertaining the amount thereof has been provided.” 664, Moore, In Brown v. N.C. S.E. 2d 348-49
(1975), old, in monetary discussing year value of a 17 the court noted that although an award of damages must not be based on sheer speculation that:
The present monetary value of the decedent to the persons entitled to receive the damages recovered will usually defy any precise mathematical computation. [Citation omitted.] Therefore, must, the assessment of damages to a ex- large tent, be left to the good sense fair judgment jury . . . The fact that the full extent of the damages must be a Power &
Beck v. Carolina all dam- refusing is no for ground speculation matter of some any wrongful . . . “The ages. omitted.] [Citations A speculative. uncertain and are to some extent action death necessary it is where may speculation such indulge support speculation.” facts to are sufficient and there [Cita- tion omitted.] has testimony of an who expert presented
Plaintiff has knowledge pertaining available loss based on economic predicted testimony regard- testimony supervisors, of work Daryl Beck: testimony also was data. This wage skills and the decedent’s ing ability to a project Dr. own expertise Poindexter’s based available status the use of data likely through economic person’s in his field. Such evidence a reasonable basis for provided is, best, only though even the result damages, computation any cross examination to expose the function of It is approximate. testimony. Normally, “the lack of sufficient weakness such testimony weight be accorded goes primarily basis Co., 38 Conditioning v. Air evidence.” such 630, Rutherford denied, 639-40, rev. S.E. 2d disc. testimony Dr. was proper- Poindexter’s ly admitted into evidence.
ter [5] Furthermore, give his opinion trial court response properly permitted hypothetical question Dr. Poindex referring group persons to the statistical Poindexter, counsel Dr. asked belonged. examining plaintiff’s *9 “ ... you follows: do which concluded as hypothetical question to satisfactory yourself present to as the have an opinion reasonably net income for the monetary expected value or the Daryl Beck . . .” belonged. to which persons statistical group 248 S.E. Conditioning Air Co. 2d Rutherford if he had an “as to the opinion present witness was asked expert reasonably net monetary expected income for the value of the which this deceased be person statistical group persons objected . . .” to this ques The defendant longed. Rutherford could not be on expert opinion that an based ground tion on the facts, not in evidence. In rejecting and statistics figures claim, noted: this court defendant’s facts, by the upon statistics and charts relied figures, evidence,
witness, customarily not offered into are although OF APPEALS Beck v. Carolina Power upon by
relied persons profession. See Mc- generally (2d Ed.). Cormick, Evidence upon Based better §§14-16 cases, information may reasoned such be relied upon expert regardless of whether into . admissible evidence. . . . . . ... diagnosis injury is within the expertise [Just a] physicians upon and is based all reliable information which physicians consider when such making diagnosis ... an ex- commonly economics pert relies statistics upon and data relating all of the work aspects economy force and which the present affect value of the loss of future income earning capacity. 638-39,
Id. at 2d Rutherford, As in the materials on which Dr. Poindexter relied constituted information Dr. Poindexter ap- based his propriately expert opinion. The did need to reports be introduced into evidence. The adequate oppor- tunity cross-examine the witness on these matters. have carefully
We considered defendant’s remaining of error assignments regarding the compensatory damages and testimony of Dr. Poindexter. We find these assignments to be totally without merit and thus overruled. Damages
Punitive [6] The defendant argues that the trial court erred in submitting of punitive issue damages and that the court erred in its instruction on gross basis negligence as the for a punitive award. We disagree. has
Our Court stated that common law of this “[u]nder damages may State ‘when the wrong awarded is done willfully or under circumstances of oppression, or rudeness in a manner which evinces a reckless and disregard wanton plain- ” 520, 525, rights.’ tiff’s Russell Taylor, S.E. “ ‘An act is wanton when is done of wicked or when purpose needlessly, done manifesting reckless indif- ” Gibbs, ference rights others.’ Siders v. N.C. App. 183, 187, 249 S.E. 2d Foster v. citing Hyman, 197 *10 189, 191, (1929). 36, 148 S.E. N.C. 37-38 An is wilful act when there “a exists deliberate purpose to discharge duty some 384 Power & v. Carolina another,” or a
necessary person property Harris, v. law. Brewer imposed or duty assumed contract 345, (1971), 288, 297, 350 Foster v. citing 2d 182 S.E. 279 N.C. Hyman, supra.
Moreover,
wrongful
death
statute
the North Carolina
a
damages upon
showing
of punitive
allows the award
specifically
28A-18-2(b)(5)
for
provides
Gen. Stat.
negligence.
N.C.
gross
§
“malicious-
wrongful
through
for
death caused
damages
punitive
ness,
Although
injury,
gross negligence.”
wilful or wanton
or
statute,
on prior
based
negligence is not defined
gross
term
would authorize
gross negligence
law the inclusion
case
where the defendant’s conduct was
damages
cases
punitive
Abrams,
less than wilful or wanton. Blanchard and
something
Analysis,
Liability
A
North
New Products
Act: Critical
Carolina’s
(1980).1
171, 183-84
In
v. Greyhound
16 Wake For. L.Rev.
Clott
609,
438,
(1970),
Lines,
604,
177 S.E. 2d
441
rev’d
App.
378,
Morris,
Judge
278
Plaintiffs evidence which tended to show numerous viola- tions Safety National Electrical Code and of defendant’s own standards was sufficient merit the submission of the issue damages jury.
The judge instructed gross negligence:
Gross an negligence is departure extreme from the or- conduct; dinary standard of great very or great negligence; negligence materially greater ordinary than negligence, the being difference one of degree; it is although kind, sometimes said to be a different ag- an gravated gross character and failure exercise proper care.
The term implies a thoughtless disregard conse- them, quences without any effort to exerting avoid an indif- ference to rights welfare others. Gross negligence term, is a relative tois be understood as meaning greater want of implied care than is by ordinary the term negligence.
The plaintiff contends that she has by shown the greater defendant, weight of the that evidence through its agents, erected pole and the attachments thereto 1974, in violation of the code and in violation of its above; own specifications as has been forth set and that such itself; was negligence conduct within that the negligent condi- tion continually day continued until the of Daryl death Beck; that if the defendant made appropriate inspections of interim, the pole and attachments during it failed to note condition; or to correct the alleged negligent that Daryl proximately Beck’s death was caused such condition and the complained conduct on negligent part willful or wanton gross negligence. so, you And I instruct if you find the greater weight of the evidence that the defendant’s conduct in erect- ing, maintaining pole 1998 and the inspecting attachments was accompanied such cir- aggravating Unes, Inc., Greyhound in Clott v. wanton than willful or conduct grounds, on other rev’d S.E. 2d Beck v. Carolina Power cumstances, you I have given instructions under the —as you, permit will an award I have given the instructions under may plaintiff award to the you of punitive *12 will serve to your punish which in discretion amount like offenses. committing from and deter others of degree is a lesser gross negligence that agree plaintiff with We Therefore, negligence. wanton willful and wrongdoing than proper. instructions were trial court’s of carefully assignments all defendant’s examined We have merit and overruled. them to be without error found we no error. trial court find of the judgment In the error. No WHICHARD concurs.
Judge C.) (Harry dissents. Judge Martin concurring. Judge WHICHARD opinion, relating dissenting in the first issue raised contractors, in not argued independent
to the instruction in instruc- was in fact error there Assuming brief. defendant’s view, tion, my in this Court magnitude, was not of such it a new trial. awarding it the basis for motu make ex mero should issue, is a well established to the punitive As “[i]t con- that a statute must be statutory construction principle it, strued, every part being effect to give if so as possible, any of its provisions did not intend Legislature presumed Williams, 212 S.E. v. State surplusage.” to be 28A-18-2(b)(5) “willful phrases G.S. To treat synonymous, as does “gross negligence” injury” or wanton other mere effectively one or the renders dissenting opinion, rule of con- foregoing contrary the mandate surplusage, struction. intended, by use dis- Assembly I the General believe maliciousness, or wanton willful phrase “through in the
junctive separate three establish gross or negligence,” injury, to have could be found which wrongful conduct categories COURT OF Beck v. Carolina Power & law, By
caused
decedent’s death.
analogy
criminal
con-
a jury
duct
could find murder
could fall
“maliciousness,” see,
Withers,
category
364,
e.g.,
State
(1967);
For the I foregoing Judge concur the opinion M. Robert Martin. C.)
Judge (Harry Martin dissenting. *13 This July cause of action arose 1 1978 and resulted in a lengthy important and trial in the Superior of Wake Court Coun- Nevertheless, ty. I am compelled to dissent. excepted defendant to the following of the portion charge: so I you you
And
instruct
that
may find that Carolina
Light
Power &
Company,
it may be found to be
negligent under
doctrine
corporate
and I
negligence;
you
you
instruct
if
find from the
by
evidence and
its
greater weight that the
corporation
defendant
has itself been
contractors,
negligent
through its
or
agents,
independent
rules,
failing
to
promulgate
adequate
failing
installation,
assure proper
maintenance and inspection of its
lines, poles
electrical
apparatus
accord with
duty
its
exercise
highest degree
care in performing such
responsibility;
and that
such negligence was a proximate
death,
you
cause of
Beck’s
then
may find that
plaintiff
defendant
is liable
under the doctrine of cor-
ours.)
porate negligence. (Emphasis
I find this
exception to
prejudicial error. Although particular
of the
aspect
challenged instruction discussed herein is
counsel,
not argued
I find the error so palpable as to require
(1982).
Booker,
analysis by this Court. See State v.
on the pole
13,200
7,200
All
volts.
voltage
increase
contractor,
Brothers, an independent
that Sumter
evidence shows
with defendant.
change under a contract
made this
jury to find defendant
allows the
charge
portion
This
in-
Ordinarily, an
contractor.
independent
for the acts
liable
oc-
injuries to third parties
for
contractor
is not liable
dependent
by the
accepted
completed
work has been
after the
curring
Co.,
226 N.C.
v.
owner. Price
Cotton
(1966). may
where the
It
be otherwise
Electricity
Am. Jur. 2d
§
imminently
as to be
defective
negligently
work done
so
knows, or
the contractor
provided
to third
dangerous
persons,
him,
know,
situation created
dangerous
should
and would
dangerous
not know of the
condition
owner does
Price,
Williams
supra;
inspection.
reasonable
discover
(1936).
Inc.,
By
the transformer
installing
through its independent con-
tractor, Carolina Power & Light Company was not
performing
Therefore,
duty
direct personal
to the deceased.
general
rule
liability
there is no vicarious
for the
in-
negligence
Inc.,
dependent contractor
applies.
Fay,
Hendricks
I also find error in damage aspect of the case. Defendant excepted to the submission of issues 4A Band issues, jury. The and the answers were as follows:
4. Was Plaintiff’s by: intestate Beck killed (APGJr) A. The willful and or wanton negligence of Defendant Power Carolina and Light?
Answer: No B. The gross Defendant Carolina Light? Answer: Yes 28A-18-2(b)(5) obviously The trial court believed that N.C.G.S. *15 (Cum. 1973) 1981)
(adopted Supp. required issues based upon COURT OF Beck v. Carolina be submitted gross negligence and negligence or wanton
willful the statute part of pertinent I this to be error. find jury. “(5) have could decedent damages punitive Such reads: survived, wrongfully for damages punitive he recovered had maliciousness, willful through of the decedent the death causing gross negligence.” wanton or injury, or states, in the is not defined negligence majority gross As the statute, By fail- a section of definitions. has although the statute statute, purpose for the gross negligence to define ing meaning gross obviously adopt intended legislature addressing Supreme our Court. established negligence punitive damages, basis for as a negligence question gross held: Court recovery as basis to gross
References .. . When in our decisions may be found any attempt differen- injury negligence, is caused with fraught is maximum slight gross tiate variations . . . difficulty. conclusion that impels
An of our decisions analysis Court, has used that gross negligence, references to this a failure to Negligence, of wanton conduct. term the sense extreme, care, inadvertence. connotes slight be it use due hand, Wantonness, wrong- intentional other connotes on the involved, or wilful is not wan- injury doing. Where malicious shown to warrant alleged ton conduct must is wanton when in damages. Conduct recovery of punitive of and indifference to the disregard conscious intentional . . . rights and of others.
True, are somewhat jurisdictions in other decisions applicable rule. The the statement divergent specific in the factual application divergence greater situations. 27-28, Dawson, 396-97
Hinson v. Thus, with respect established that clearly our in 1956 Court wanton conduct are gross negligence damages, to punitive consistently has by our Court been synonymous. holding This Insurance of cases. Newton v. procession in an unbroken followed Harris, S.E. Brewer *16 COURT OF APPEALS 391 Beck v. Carolina Power & 288, (1971); Lines, 182 S.E. 2d N.C. 345 Van Leuven v. 261 Motor 539, (1964); Distributors, 135 S.E.
N.C.
2d 640
Rubber Co. v.
459,
(1960);
App. N.C. S.E. 2d case, a bailment which the Court of Appeals stated: Supreme gross negligence “Our Court has defined as ‘something less than willful and wanton conduct.’ 422, Smith Stepp, (1962).” 125 S.E. 2d at While is true that Smith v. contain Stepp does the quoted it must language, be understood our Court was Supreme the law of the not the stating Virginia, Commonwealth law North Carolina. oc- Smith involved an automobile accident that in Virginia, curred but the lawsuit was tried in North Carolina. was concerned with application Virginia’s guest Court Transportation
Lea Co. v. Board finding gross required statute passenger for the authority quoted cited as recovery. The Court support Snow, 162 Va. of Thomas v. Virginia case statement *17 (1934).Furthermore, by opinion this Court Clott S.E. 837 not did cite by Although Duszynski Supreme reversed Court. and, Clott, by to im- Clott subsequent it was decided or refer to authority regard. of Clott in this any plication, vestigial removes authority quoted that the taken as decision cannot be The Clott Rather, Hinson law of North Carolina. statement is the Dawson, of North remains the law Carolina. supra, is con- also respect punitive with
This position are Hinson expressed philosophy with the sistent “[W]e beyond the limits established doctrine expand disposed this N.C. at decisions of Court.” by authoritative at 396. Hinson the that under the law of argued can be Although it no or wanton to issue 4A willful in its answer jury, by finding defendant, foreclosed issue has part on the conduct just a more result is submitted damages, punitive B 4A and The submission of issues new on that issue. allow a trial respect of the law with in a misapplication resulted with Only one issue should submitted damages. damages. allowing punitive to a basis for respect with this consistent trial on all issues I vote for a new opinion. OF TRANSPORTATION CAROLINA BOARD
LEA NORTH COMPANY No. 8118SC623 1982) (Filed 1 June 13; judgment § in condemnation Judgments § 37.5— consent 1. Eminent Domain damages for flood easement —no bar to action compensation a flood ease- seeking action In an inverse condemnation sup- Transportation, the evidence allegedly Board taken defendant ment ported complaint, and declara- notice court that the trial determinations prior action instituted taking in a condemnation tion of pay agreed for the tak- judgment in which defendant in that action consent give plaintiff property notice plaintiffs did not portion of ing of small