All opinions are subject to modification and technical correction prior to official publication in the North Carolina Reports and North Car olina Court of Appeals Reports. In the event of discrepancies between the electronic version of an opinion and the print version appearing in the North Carolina Reports and North Carolina Court of Appeals Reports, the latest print version is to be consid ered authoritative.
JAMES L. MARTISHIUS and CINDY K. MARTISHIUS v. CAROLCO STUDIOS,
INC.
1. Premises Liability_-injury from contact with power line--directed verdict--judgment
notwithstanding the verdict
The trial court did not err by denying defendant motion-picture studio owner's motions
for directed verdict and judgment notwithstanding the verdict on the issue of defendant's
negligence in a case where plaintiff carpenter came into contact with uninsulated energized
power lines while working on defendant's premises to build a film set, because: (1) defendant's
retention of substantial authority over the use of its property, taken together with its active
involvement in the film production company's daily routines, placed upon defendant a
concomitant duty to exercise reasonable care to ensure that the production company's employees
including plaintiff were not injured by coming into contact with uninsulated power lines running
over the back lot; (2) defendant had a duty to exercise such reasonable care as a landowning
proprietor, running a motion-picture studio while maintaining a significant degree of control over
the daily operations of its licensees, would exercise under the circumstances; (3) given the
evidence to the jury concerning the nature and use of the property, the knowledge of defendant
through its facility manager of the set conditions, and the available alternatives, there was
sufficient evidence to submit to the jury the question of whether defendant was negligent in
causing plaintiff's injuries; (4) defendant has not been held to a strict-liability standard since
defendant's liability was based upon the particular facts of the case, including defendant's
awareness that the film production employees would be working within the power-line easement
and defendant's failure to take reasonable steps to protect plaintiff; and (5) it was not
unforeseeable as a matter of law that the type of injury plaintiff sustained would result from
defendant's alleged negligence.
2. Premises Liability--contributory negligence--injury from contact with power line--
directed verdict--judgment notwithstanding the verdict
The trial court did not err by denying defendant motion-picture studio owner's motions
for directed verdict and judgment notwithstanding the verdict on the issue of plaintiff carpenter's
contributory negligence in a case where plaintiff came into contact with uninsulated energized
power lines while working on defendant's premises to build a film set, because: (1) while the
general rule is that a person has a legal duty to avoid open and obvious dangers including contact
with an electrical wire he knows to be dangerous, that does not mean that a person is guilty of
contributory negligence as a matter of law if he contacts a known electrical wire regardless of the
circumstances and regardless of any precautions he may have taken to avoid the mishap; and (2)
the jury properly considered and resolved the conflicting evidence to reach a verdict as to
contributory negligence.
Appeal pursuant to N.C.G.S. § 7A-30(2) from the decision of
a divided panel of the Court of Appeals, 142 N.C. App. 216, 542
S.E.2d 303 (2001), finding no error in a judgment entered 23 July
1999 and subsequent oral orders denying defendant's motion for
judgment notwithstanding the verdict and for new trial entered byCobb, J., in Superior Court, New Hanover County. Heard in the
Supreme Court 12 September 2001.
Kirby & Holt, L.L.P., by David F. Kirby and Isaac L. Thorp,
for plaintiff-appellees.
Law Offices of William F. Maready, by William F. Maready;
and Smith Helms Mulliss & Moore, L.L.P., by James G. Exum,
Jr., for defendant-appellant.
EDMUNDS, Justice.
Plaintiffs James L. Martishius (plaintiff) and Cindy K.
Martishius initiated this negligence action against Carolco
Studios, Inc. (defendant) for injuries sustained on 1 February
1993 when plaintiff came into contact with uninsulated energized
power lines while working on defendant's premises. Now before
this Court are the issues of whether the Court of Appeals erred
in affirming the trial court's denial of defendant's motions for
directed verdict and for judgment notwithstanding the verdict
regarding negligence and contributory negligence. For the
reasons set forth below, we affirm the holding of the Court of
Appeals.
*** Converted from WordPerfect ***
An understanding of the issues presented in this appeal
requires an explication of the relationships between the parties.
In 1984, Dino DeLaurentis and the North Carolina Film Corporation
(Film Corporation) acquired and built a motion picture studio on
a thirty-two-acre site in Wilmington, North Carolina. Over time,
the studio, which began as a single building, expanded to include
several stages, and a back lot was constructed for outdoor
filming. During 1984, Film Corporation hired engineer Gerald
Waller to assist in construction of the facilities and to designan electrical distribution system for the premises. Waller
presented to Film Corporation various options for the provision
of electricity to the back lot, including overhead lines and
buried lines. Factors affecting the decision as to which option
to select included the costs of burying lines (which Carolina
Power & Light (CP&L), the electricity supplier, would pass on to
Film Corporation), the aesthetic considerations of having exposed
lines, safety, and the requirements of any future expansion.
Film Corporation elected to have CP&L install uninsulated
overhead power lines to the back lot.
The original separation between the back lot and the newly
installed power lines was seventy-five feet from the rear of the
lot and twenty-five feet from the side. However, as the studio
continued operation and new films were produced, the separation
between the power lines and the back lot diminished. This
shrinkage did not end when defendant became the owner of the
studio in 1989. That same year, defendant promoted Waller to the
position of facility manager. Jeffrey Schlatter, construction
coordinator for Crowvision, Inc., an independent production
company involved in this case, testified that from 1984 through
1993, the back-lot set expanded toward the power lines with each
subsequent production. On one occasion, Waller requested that
some of the back lot's power lines be relocated because of their
dangerous proximity to the back lot during the filming of “Aunt
Julia, the Script Writer.” On another occasion, Waller agreed
with a production coordinator of the movie “Teenage Mutant Ninja
Turtles” to de-energize a portion of the back lot whenconstruction was to take place approximately fifteen feet from
power lines.
Waller aptly described the back lot as a constantly changing
construction zone. Production company employees working on the
back lot frequently attached large facades to telephone poles
that were thirty to forty feet high to create a particular set.
A number of these poles had been left from prior productions; in
fact, plaintiff presented at trial an aerial photo of the back
lot taken in February 1992, almost one year before the instant
accident, showing such poles standing within ten to twelve and a
half feet of the power lines. A set facade would appear in the
film as if it were a building or other part of a scene. As one
witness testified, the facade “would be very real, and it is
composed of, this street here, of telephone poles. You imagine
the city of Wilmington, a facade, pieces of plywood with fake
bricks put on and windows cut in them, . . . with telephone poles
behind it holding it up, instead of buildings back there.”
In order to attach facades to poles at heights exceeding
thirty feet, production company workers frequently used mobile
boom lift machines. The lifts used in the instant case were
manufactured by JLG Industries, and the parties consistently
referred to the lifts as “JLGs” (JLG). A JLG resembles a “cherry
picker” and was described by one of plaintiff's witnesses as “a
piece of equipment that has tires and can move from spot to spot,
rotates around with an extending boom, work platform, so that it
will get to high places, things that you can't get with a ladder
or scaffolding.” The operator of a JLG usually stands in abasket at the end of the extendable boom. In addition to
attaching and dismantling facades, JLGs were used in a variety of
ways on a movie set. Construction foreman Ralph Woolaston
testified that based on his experience working in the film
industry since 1978, JLGs are also used for construction and
dressing of sets, setting and holding backdrops, and filming.
Plaintiff produced substantial testimony at trial from film
industry workers that JLGs routinely and customarily were used on
both the front and back of the poles to attach and take down
facades. One of the workers testified: “We were constantly
working the back of the facade. There was all kinds of movement,
all kinds of machinery.”
A construction access road, used for moving materials and
prebuilt pieces, ran directly underneath the power lines serving
the back lot. This road separated the back lot from an area
known as the “bone yard,” where sets from previous movies were
stored. Although the bone yard belonged to defendant, movie
production companies could, with permission from defendant, reuse
some of the pieces kept there. Workers using motorized equipment
such as JLGs to gather material from the bone yard or to travel
to the rear lot by means of this access road therefore drove
beneath the power lines. The JLG operated by plaintiff was on
this access road at the time of his 1 February 1993 accident.
As noted above, defendant became the owner of the studio in
1984. Defendant made one film of its own, then elected to rent
the facilities to independent production companies. Crowvision
was thereafter formed to produce the movie “The Crow,” and Crowvision and defendant entered into an agreement on 29 December
1992. Under this agreement, defendant gave Crowvision a license
to use a portion of defendant's facilities, equipment, and
personnel “for the purpose of producing [a] motion picture[].”
The agreement further required Crowvision to obtain approval from
defendant before making any alterations to the studio property.
Defendant warranted “that the licensed premises and facilities
hereunder are satisfactory and in a safe condition.”
Before production began on “The Crow,” Waller, defendant's
facility manager, toured the facilities and back lot with
Schlatter, Crowvision's construction coordinator. Waller stated
that the purpose of the “walk-through” was to “discuss the work
environment, the conditions of the backlot [sic], to discuss what
their needs were, and again, to make them aware of the
environment.” Schlatter's and Waller's inspection included the
overhead power lines that then were in the vicinity of the back
lot. These lines consisted of three parallel lines five feet
apart. The two outside lines were energized and were 27.8 feet
above ground. Waller explained to Schlatter that CP&L had a
thirty-foot easement around the lines and that Crowvision would
have to keep at least ten feet away from the outer lines.
In November 1992, Schlatter hired plaintiff to work for
Crowvision as a carpenter. One of plaintiff's witnesses
testified that movie-set carpenters “build the sets for the, for
the movie to be shot on. . . . [A]nything you could imagine, we
build, I mean, everything, anything.” Plaintiff, who arrived
with experience gained working on other movies, initially came toWilmington to work on the film “Mario Brothers.” While working
on the set of that movie, plaintiff first began using lift
equipment. Although he never received formal training, plaintiff
became so proficient that he was described by his foreman as one
of the best JLG operators.
In the weeks leading up to the accident, the back lot was
the scene of considerable activity. Plaintiff's evidence
indicated that Waller was present on the studio grounds every
day, touring the back lot. In January 1993, Crowvision began
work on a church and cemetery facade for “The Crow.” As early as
a year before the accident, the portion of the back lot where
Crowvision employees worked was within ten to twelve and a half
feet of energized power lines. Some of the poles on which
facades would be hung “[had] been there for several years. There
[had been] a set there built . . . in exactly the same location.”
In addition, ten or eleven new poles had been installed for “The
Crow.” Before the new poles were installed, Schlatter and others
from Crowvision discussed with Waller the exact locations where
the poles would be positioned. Plaintiff presented evidence at
trial that Waller thereafter approved their installation.
Although Waller later testified that he did not realize that
Crowvision had encroached on CP&L's power-line easement,
plaintiff's evidence established that Waller knew where the power
lines were located in relation to the poles. Schlatter
additionally testified that whenever Crowvision sought to make
alterations to the set, he was required to meet with Waller
because “[t]hat's how it was.” Construction foreman Woolastondescribed the interaction between Crowvision and Waller regarding
the placement of the new poles: “The poles were marked in their
exact spots to where they were going to be, and at that point,
the whole situation was gone over with myself, [Schlatter],
[Waller] and [two other Crowvision employees].” Woolaston added
that some of the poles were within one to two feet of the power
lines. The remaining poles were within five to ten feet of the
lines.
Crowvision employees anticipated working between these poles
and the power lines, using JLGs and other lifting equipment. One
witness testified that
[t]he power lines . . . are fairly close to the, to the
back side of the set. In many places, you will find
yourself inbetween [sic] the set and the power lines.
With the entire machine, you could be inbetween [sic]
the set and the power lines . . . . The power lines
are constant. Anything else out there is pretty much a
movable object.
Another worker testified that
a couple of days before the accident . . . we were
putting up these walls here, and we had the JLG between
this power line and the back of this wall line, and we
were actually -- I was at eye level. . . . And I had
articulated the JLG, myself and two other people, in
between the power lines and the back of the facade to
get the back framing up.
Carpenter Chris Crowder explained that the reason the workers had
to come close to the power lines was “because that was where the
work was.” Plaintiff acknowledged at trial that he was aware
that the power lines were dangerous.
On 1 February 1993, Paul Saunders instructed plaintiff to
assist construction foreman Woolaston on the church set. Using
the access road that ran beneath the power lines, plaintiff drovea JLG along the back of the church facade. Woolaston instructed
plaintiff to pick up a large, heavy door and place it into the
church facade. Plaintiff accordingly drove the JLG back down the
same access road to an opening in the rear of the facade, then
raised the JLG boom over the facade to pick up the door.
Plaintiff was in the basket at the end of the boom. Crowder, who
was working near the opening in the church facade, described what
happened next:
Well, [plaintiff] boomed the lift over. He was going
to pick up a door section from here, and he came over
me, and I came back over to work. And I told him when
he came by, I didn't think he was going to be able to
reach the door from where he was. He came on through.
So then I came, I came over to here, so I had my back
to him. I guess he started back out, and that's when
he made contact with the power lines. I had walked
over to here and had my back to him when I heard the
spark and explosion, and at that point, you know, we
went to him.
Although the exact details are unclear because plaintiff has no
memory of the event and there were no other eyewitnesses, the
basket of the JLG came into contact with a power line as
plaintiff maneuvered to move the door.
After hearing the explosion, Crowder saw that plaintiff was
slumped over the controls and on fire. As other workers rushed
to the scene, Woolaston ran to the JLG and lowered the boom.
Plaintiff had collapsed in the basket. Woolaston and the others
removed plaintiff from the basket and, seeing that his clothes
were still burning, undressed plaintiff and wrapped him in
blankets. Immediately after the accident, Waller approached thescene and told Schlatter that he had “been after Martha
Plaintiff was burned over forty to forty-five percent of his
body. He was blinded in his right eye and suffers from a residual
neurological problem of poor balance. Plaintiff's burns caused
severe facial and bodily disfigurement, requiring reconstructive
surgeries.
On 8 April 1994, plaintiff and his wife, Cindy, filed a
complaint alleging negligence and loss of consortium against
defendant, CP&L, Edward R. Pressman Film Corporation, Crowvision,
and Hertz Equipment Rental Corporation. The claims against CP&L,
Pressman, Crowvision, and Hertz were either settled or dismissed,
and the matter proceeded to trial solely against defendant.
Defendant unsuccessfully moved for a directed verdict both at the
close of plaintiff's evidence and at the close of all evidence.
On 16 July 1999, the jury found that plaintiff was injured by the
negligence of defendant and that plaintiff was not contributorily
negligent; the jury additionally found that defendant was not
responsible to plaintiff's wife for loss of consortium. The jury
awarded plaintiff $2,500,000. On 23 July 1999, the trial court
denied defendant's motion for judgment notwithstanding the
verdict or new trial and entered judgment against defendant.
Defendant appealed to the North Carolina Court of Appeals,
and on 20 February 2001, a divided panel affirmed the trial
court's ruling. Martishius v. Carolco Studios, Inc., 142 N.C.App. 216, 542 S.E.2d 303 (2001). Defendant appeals to this Court
on the basis of the dissent.
The test for determining whether a motion for directed
verdict is supported by the evidence is identical to that applied
when ruling on a motion for judgment notwithstanding the verdict.
Smith v. Price, 315 N.C. 523, 340 S.E.2d 408 (1986). “In ruling
on the motion, the trial court must consider the evidence in the
light most favorable to the nonmoving party, giving him the
benefit of all reasonable inferences to be drawn therefrom and
resolving all conflicts in the evidence in his favor.” Taylor v.
Walker, 320 N.C. 729, 733-34, 360 S.E.2d 796, 799 (1987). “The
party moving for judgment notwithstanding the verdict, like the
party seeking a directed verdict, bears a heavy burden under
North Carolina law.” Id. at 733, 360 S.E.2d at 799.
[1]We first address whether the Court of Appeals erred in
affirming the trial court's denial of defendant's motions for
directed verdict and judgment notwithstanding the verdict on the
issue of defendant's negligence. To prevail in a common law
negligence action, a plaintiff must establish that the defendant
owed the plaintiff a legal duty, that the defendant breached that
duty, and that the plaintiff's injury was proximately caused by
the breach. Hunt v. N.C. Dep't. of Labor, 348 N.C. 192, 499
S.E.2d 747 (1998). Actionable negligence occurs when a defendant
owing a duty fails to exercise the degree of care that a
reasonable and prudent person would exercise under similar
conditions, Hart v. Ivey, 332 N.C. 299, 420 S.E.2d 174 (1992), orwhere such a defendant of ordinary prudence would have foreseen
that the plaintiff's injury was probable under the circumstances,
Pittman v. Frost, 261 N.C. 349, 134 S.E.2d 687 (1964).
This Court in Nelson v. Freeland, 349 N.C. 615, 507 S.E.2d
882 (1998), eliminated the distinction between invitees and
licensees and established that the standard of care a landowner
owes to persons entering upon his or her land is to “exercise
reasonable care in the maintenance of their premises for the
protection of lawful visitors.” Id. at 632, 507 S.E.2d at 892.
Adoption of a “true negligence” standard allows the jury to
concentrate “upon the pertinent issue of whether the landowner
acted as a reasonable person would under the circumstances.” Id.
(emphasis added). In addition, this Court has stated:
[T]he proprietor must use the care a reasonable man
similarly situated would use to keep his premises in a
condition safe for the foreseeable use by his invitee
-- but the standard varies from one type of
establishment to another because different types of
businesses and different types of activities involve
different risks to the invitee and require different
conditions and surroundings for their normal and proper
conduct.
Hedrick v. Tigniere, 267 N.C. 62, 67, 147 S.E.2d 550, 554 (1966).
Although Hedrick uses now-superseded language describing the
status of the individual using the land, the principle
recognizing the importance of the underlying facts in a case
remains valid. As we went on to hold in Hedrick, in order to
determine whether appropriate care has been exercised, “'it is
proper to consider the nature of the property, the uses and
purposes for which the property in question is primarily
intended, and the particular circumstances of the case.'” Id.(quoting 65 C.J.S. Negligence § 45(b), at 531-32 (195
0)). Upon
application of those factors in this case, and viewing the
evidence in the light most favorable to plaintiff, we hold that
plaintiff produced sufficient evidence to warrant submission of
the negligence claim to the jury.
The instant case is in a somewhat atypical posture because
defendant is the landowner, whereas reported cases dealing with
injuries resulting from contact with a power line usually involve
the supplier of electricity as the defendant. We have long held
that owners of land are not insurers of their premises, Nelson v.
Freeland, 349 N.C. at 632, 507 S.E.2d at 892; Jones v. Southern
Ry. Co., 199 N.C. 1, 3, 153 S.E. 637, 638 (1930), and we do not
today retreat from this general rule, applicable to those such as
homeowners or business proprietors who are little more than
passive consumers of electric power provided by a supplier.
However, in the case at bar, the evidence established that
defendant was an active and knowledgeable participant with
Crowvision in the planning and use of the perpetual construction
site that was defendant's back lot. Defendant required in the
licensing agreement that Crowvision obtain approval from
defendant before making any alterations to the studio property,
thereby retaining veto power over a number of Crowvision's
decisions. It warranted to Crowvision that the premises were
safe. Through Waller, it worked with and advised Crowvision
employees on a daily basis on such routine matters as the
placement of poles. Schlatter testified that production
companies would have to ask Waller if they could reuse itemsstored in the bone yard because “they were part of the [s]tudio
property.” This evidence establishes that defendant was far more
than a mere landlord to Crowvision. Defendant's retention of
substantial authority over the use of its property, taken
together with its active involvement in Crowvision's daily
routines, placed upon defendant a concomitant duty to exercise
reasonable care to ensure that Crowvision's employees were not
injured by coming into contact with uninsulated power lines
running over the back lot.
[O]ne who maintains a high voltage electric line at
places where people may be reasonably expected to go
for work, business or pleasure has the duty to guard
against contact by insulating the wires or removing
them to a place where human beings will not likely come
in contact with them.
Partin v. Carolina Power & Light Co., 40 N.C. App. 630, 632, 253
S.E.2d 605, 608, disc. rev. denied, 297 N.C. 611, 257 S.E.2d 219
(1979). Under the standards articulated in Nelson and Hedrick,
the reasonableness of a defendant's actions depends upon the
circumstances of the case, including the nature of the property
involved and the intended uses of that property. Accordingly,
defendant landowner had a duty to exercise such reasonable care
as a landowning proprietor, running a motion-picture studio while
maintaining a significant degree of control over the daily
operations of its licensees, would exercise under the
circumstances.
Having determined that the evidence was sufficient to hold
that defendant landowner could be liable for negligence, we now
turn to the question whether this and other evidence, taken in
the light most favorable to plaintiff, was also sufficient tosubmit plaintiff's negligence claim to the jury. Evidence was
presented that defendant was aware that the uninsulated power
lines presented a hazard to film crews on the back lot and that
workers would have to confront such a hazard to accomplish their
assigned duties. Despite defendant's knowledge of the danger, it
allowed near-permanent fixtures on the back lot to encroach on
CP&L's easement. Although the evidence shows that the power
lines were originally seventy-five feet from the place in which
plaintiff was injured, defendant allowed the back lot to move
closer to the lines to such a degree that various production
company workers had to navigate between the back of the set and
the energized lines. As described above, some portions of the
set and access road became located directly under the lines.
Plaintiff presented testimony that, while a different
production company was using the back lot, defendant de-energized
the lines when work reached within fifteen feet of the lines
because of the hazard it presented to the crew. Additionally,
defendant authorized the building of sets for “The Crow” up to
the edge of the ten-foot easement, even though it knew that
Crowvision employees would need to work behind the set, using
lift equipment, inside the ten-foot zone. Defendant's expert
witness, Raymond P. Boylston, agreed that JLGs would be used in
outdoor construction settings and that workers would have to work
on both sides of the set in order to attach the facades.
As noted previously, an aerial photograph of the back lot
established that one year before the accident, poles extending
thirty to forty feet in the air were within ten to twelve and ahalf feet of the power lines. Based on evidence that a JLG
basket is three feet deep by five feet wide, the jury could find
that even if no additional poles were installed on the set,
Crowvision employees working in JLGs on the edge of the easement
could be as close as five to eight feet from the lines.
Moreover, through Waller, its facility manager, defendant oversaw
and approved the installation of ten to eleven additional poles,
including some that were located only five to ten feet from the
lines and where work could be undertaken using JLGs.
Plaintiff presented expert testimony regarding both the
existing condition of defendant's studio back lot and various
alternatives that were available to defendant. David MacCullum
was accepted as an expert in safety engineering. MacCullum's
multipart opinion was that “[defendant] had a hazardous workplace
because the power lines were present. No. 2 is that the power
lines could have been easily removed, and third is that
[plaintiff], the operator, was following the basic instructions
from the JLG.” MacCullum further testified that he was familiar
with the customs and practices in the industry as to separation
of power lines from construction activity and observed that
“[t]he most reliable industry practice 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.” He also testified:
Q: And when you say “remove the power lines,” do you
have an opinion as to how the power lines could have
been removed from the work site?
A: Well, there [are] a number of solutions. The
easiest is to bury them. The second is to barricade
the area off to restrict entry into the area. And the
third: In some instances, you can provide insulation
on the power lines.
The jury also heard expert testimony from Dr. Harvey Snyder
that “those lines were located dangerously close to the
structures which these men were working on, dangerously close
when it was known that lifting-type or raising-type equipment
. . . could be used in that environment.” Like MacCullum, Snyder
suggested de-energizing the lines, moving or burying the lines,
or guarding the lines as alternatives to the current condition.
In addition, the jury was informed that defendant's property
extended one hundred feet beyond the back lot. Given the
evidence presented to the jury concerning the nature and use of
the property, the knowledge of defendant through its facility
manager of the set conditions, and the available alternatives,
there was sufficient evidence to submit to the jury the question
of whether defendant was negligent in causing plaintiff's
injuries. The Court of Appeals did not err in affirming the
trial court's denial of defendant's motions for directed verdict
and judgment notwithstanding the verdict.
Defendant contends that the Court of Appeals' opinion holds
it strictly liable for any injury to plaintiff caused by power
lines. We have held that the mere maintenance of uninsulated
power lines is not wrongful. Mintz v. Town of Murphy, 235 N.C.
304, 314, 69 S.E.2d 849, 857 (1952). However, liability in the
case at bar is not based on the mere presence of power lines at
defendant's studio. “[I]n order to hold the owner negligent,where an injury occurs, he must be shown to have omitted some
precaution which he should have taken.” Philyaw v. City of
Kinston, 246 N.C. 534, 537, 98 S.E.2d 791, 794 (1957). Our
holdings in Nelson and Hedrick demonstrate that a jury may
consider whether, under the circumstances, defendant exercised
reasonable care in the maintenance of its premises. We agree
with plaintiff that there was sufficient evidence for a jury to
find that the intended purpose of the property was for film-
making and that film production companies utilized JLGs to lift
equipment from the front and back of facades, reaching heights
above the existing power lines. A jury could further find that
given the nature and use of the property, as observed and
authorized by defendant, workers were required to operate JLGs in
close proximity to or directly under uninsulated power lines.
Defendant not only knowingly allowed construction of sets up to
the edge of the easement, it participated in the decision where
to place poles and other parts of the set. Defendant's liability
was based upon the particular facts of the case, including
defendant's awareness that Crowvision employees would be working
within the power-line easement and defendant's failure to take
reasonable steps to protect plaintiff. Accordingly, defendant
has not been held to a strict-liability standard.
Defendant also argues that this case is controlled by our
holding in Floyd v. Nash, 268 N.C. 547, 151 S.E.2d 1 (1966) (per
curiam). In that case, a worker was preparing to discharge the
contents of a feed truck into a storage tank on the defendant
landowner's property. The blower pipe that the worker was usingto transfer the feed contacted an uninsulated power line, and the
worker was electrocuted. The decedent's estate brought suit,
alleging that the defendant landowner was negligent in building
the feed tank directly beneath uninsulated power lines. We
determined that the evidence did not support a negligence case
against the defendant landowner when “[t]he evidence show[ed]
that the defendant [landowner] did not construct, determine the
location of, own, control or use the feed tank.” Id. at 551, 151
S.E.2d at 4. We further stated that the evidence supported the
inference that the decedent was contributorily negligent. Id.
We believe Floyd is distinguishable. Defendant here not
only knew of Crowvision's activities on its property, but also
maintained a significant degree of control over Crowvision's use
of the facilities under the licensing agreement. In addition,
Crowvision employees testified that they had to seek approval
from Waller before using props from the bone yard or erecting
additional poles for facades. There was evidence that Waller was
present on the studio grounds, including the back lot, every day.
In light of defendant's exercise of such control over the
property, the particular use to which the property was put, and
defendant's knowledge of the potential dangers facing Crowvision
employees from uninsulated power lines, we believe that
defendant's duty of reasonable care to plaintiff included a duty
to protect plaintiff from contact with an energized power line.
By contrast, although the defendant landowner in Floyd was an
electrician and had once before the accident discussed the power
line with the victim, he was a mere recipient of power. Thedefendant landowner had no part in siting or building the feed
tank, nor did he give the deceased any instructions as to how to
carry out his responsibilities. Accordingly, he had no duty to
the decedent regarding the uninsulated power line.
Finally, defendant alleges that there was insufficient
evidence to submit to a jury that a person of ordinary prudence
would have foreseen that plaintiff's injury was probable under
the circumstances. We disagree. Our definitions of probable
cause have included the requirement that the cause be “one from
which a person of ordinary prudence could have reasonably
foreseen that such a result, or consequences of a generally
injurious nature, was probable under all the facts as they
existed.” Hairston v. Alexander Tank & Equip. Co., 310 N.C. 227,
233, 311 S.E.2d 559, 565 (1984). This Court has held that “[t]he
test of proximate cause is whether the risk of injury, not
necessarily in the precise form in which it actually occurs, is
within the reasonable foresight of the defendant.” Williams v.
Carolina Power & Light Co., 296 N.C. 400, 403, 250 S.E.2d 255,
258 (1979); see also Davis v. Carolina Power & Light Co., 238
N.C. 106, 76 S.E.2d 378 (1953). Plaintiff alleged that in the
ordinary course of his job on the movie set he was required to
operate the JLG in close proximity to uninsulated power lines.
Crowvision employees testified that it was not uncommon to have
to maneuver JLG lifts between the back of the set facade and the
power lines. Evidence was presented that defendant knew of these
conditions. Accordingly, we hold that it was not unforeseeable
as a matter of law that the type of injury plaintiff sustainedwould result from defendant's alleged negligence.
[2]We next address whether the Court of Appeals erred in
affirming the trial court's denial of defendant's motions for
directed verdict and judgment notwithstanding the verdict on the
issue of contributory negligence.
Defendant first argues that because plaintiff knew of the
electrical lines, he was contributorily negligent in bringing his
JLG into contact with power lines. The burden of proving
contributory negligence is on defendant. Nicholson v. American
Safety Util. Corp., 346 N.C. 767, 774, 488 S.E.2d 240, 244
(1997). The existence of contributory negligence is ordinarily a
question for the jury; such an issue is rarely appropriate for
summary judgment, and only where the evidence establishes a
plaintiff's negligence so clearly that no other reasonable
conclusion may be reached. Id. While we acknowledge the general
rule that a person has a legal duty to avoid open and obvious
dangers, Gibbs v. Carolina Power & Light Co., 268 N.C. 186, 150
S.E.2d 207 (1966), including contact with an electrical wire he
or she knows to be dangerous, Alford v. Washington, 244 N.C. 132,
92 S.E.2d 788 (1956), “[t]hat does not mean . . . that a person
is guilty of contributory negligence as a matter of law if he
contacts a known electrical wire regardless of the circumstances
and regardless of any precautions he may have taken to avoid the
mishap,” Williams v. Carolina Power & Light Co., 296 N.C. at 404,
250 S.E.2d at 258.
At trial, evidence was presented that while plaintiff was acapable JLG operator, on the day of the accident, he was
operating a JLG model that used an electronic control system
rather than the hydraulic system to which plaintiff was more
accustomed. Kenneth Thomas Fisher, Jr., a representative from
the company that rented the JLG to Crowvision, testified that the
controls of this particular model of JLG were sensitive and
“jerky” and stated that while operating this JLG, “[i]f you were
in close proximity to an object you didn't want to strike, then
yeah, you would definitely have a greater risk.”
In addition, another JLG operator testified that, under some
circumstances, the operator could experience difficulties seeing
power lines. “Everything gets lost in the, your perspective, you
know. . . . Sometimes you are closer; sometimes you are further
away than you actually think you are.” Woolaston described the
perception as being “like if you were on a high diving board and
jumping in the water, you don't know where the water is until you
hit it.” Woolaston further testified:
I would have a very hard time distinguishing those
power lines if they were right in here. And especially
on a lift, you wouldn't see them at all. And your only
vantage point, usually, looking up at them is your best
view, because you are looking up against pretty much a
solid sky. You get those lines while you are up on a
lift, like I said, cluttered in this, in trees, or even
right on the edge of that tree line where a tree line
meets the sky. They look invisible. You've got to
look for them. You've got to really look for them. If
the sun is in your eyes, you are not going to see them
at all . . . .
Plaintiff's expert MacCullum similarly testified that “[t]he
power lines may be camouflaged because they blend in with the
background, and it's very difficult for people to estimate
accurate distances, particularly when they have multiple visualtasks to do.” Although no one knew where plaintiff was looking
at the time of the accident, testimony as to the relative
position of the sun suggested that glare could have been a
factor. Taken together, this evidence adequately raised a
question sufficient to submit to the jury as to whether plaintiff
was contributorily negligent.
Defendant additionally contends that plaintiff was
contributorily negligent in that he chose a knowingly dangerous
option when he attempted to raise the door over a facade rather
than taking a different path around the side of the facade.
However, evidence was presented that plaintiff had no choice but
to travel down the access road underneath the lines. Schlatter,
Crowvision's construction coordinator, testified that while there
were other access roads on the back lot, parked vehicles and
other impediments would have prevented the JLG from reaching the
door by any route other than the one plaintiff took. Although
defendant suggested that a forklift could have been used to move
the door, plaintiff's foreman testified that the JLG was the
preferable piece of equipment for the job, given the tight
confines of the area and the possibility that a forklift might
overturn in the uneven terrain. Finally, the jury heard the
testimony of plaintiff's expert MacCullum that in his opinion
plaintiff followed the basic instructions for operating the JLG.
Based on this evidence, we hold that defendant has failed to
carry its burden of proving as a matter of law that plaintiff was
contributorily negligent. “'Contradictions or discrepancies in
the evidence . . . must be resolved by the jury rather than thetrial judge.'” Rappaport v. Days Inn of Am., Inc., 29
6 N.C. 382,
384, 250 S.E.2d 245, 247 (1979) (quoting Clark v. Bodycombe, 289
N.C. 246, 251, 221 S.E.2d 506, 510 (1976)). In the case at bar,
the jury properly considered and resolved the conflicting
evidence to reach a verdict as to contributory negligence.
Accordingly, the Court of Appeals did not err in affirming the
trial court's denial of defendant's motions for directed verdict
and judgment notwithstanding the verdict regarding contributory
negligence.
AFFIRMED.
Footnote: 1 “Martha” is Martha Schumak
er (later Martha DeLaurentis),
president of Film Corporation at the time the decision was made
to run CP&L's power lines overhead to the back lot.