Punitives struck in Ala. case

By Jessica M. Karmasek | Sep 14, 2010


MONTGOMERY, Ala. (Legal Newsline) - The Alabama Supreme Court has struck down a punitive damages award against Galaxy Cablevision in a lawsuit involving a minor whose leg was cut by an exposed wire while playing basketball.

In an opinion authored by Justice Michael F. Bolin and filed last week, the Court also affirmed the trial court's judgment in favor of Pamela Davis based on her negligence claim.

In January 2007, Davis filed a lawsuit against Galaxy, along with Tammy Thomas, Sammy McCullar and Alabama Power Company, alleging negligence and wantonness against the minor Benjamin Drake Davis.

Benjamin was 11 years old on Jan. 21, 2005 when he was playing at Thomas' house with Thomas' minor son, Tyler. Thomas' house was owned by her father, McCullar. The property includes a basketball court, which is located near a power line.

Benjamin and Tyler were playing basketball and, during the game, Benjamin was injured when he fell into an exposed and frayed metal guy wire, which was supporting a utility pole. Benjamin's leg was lacerated by the frayed wire.

The utility pole belonged to Alabama Power, and Galaxy had a lease agreement with Alabama Power that allowed it to attach one of its cables to the pole.

Pamela later moved to dismiss Thomas and McCullar as defendants. Her motion was granted. Alabama Power also was dismissed as a defendant immediately before the trial began, leaving only Galaxy as a defendant.

Gregory Berthaut, a regional manager for Galaxy, testified as to how guy wires are installed, why they are installed and the procedures followed when complaints about the wires are made.

Berthaut explained that a guy wire is made of multiple strands of wire that are braided together and that a yellow guard is placed over the bottom of the wire near the ground and sometimes secured to a "preform" at the bottom of the wire to prevent the yellow guard from moving.

Berthaut said the guard is yellow so it is visible and can be avoided, especially in the case of residents mowing their lawns.

When asked if Galaxy required that the yellow guards be placed over guy wires, he said, "It is not in writing required. Any that you install now, you do. But there's wires that have been out for 20, 25 years that don't have these on them, both telephone, power and cable."

Galaxy filed a motion for a judgment as a matter of law. The company argued the following: Benjamin was a "social guest" of Tammy Thomas and that it owed Benjamin no duty, there was no evidence of negligence or wantonness, it had no notice of the allegedly dangerous condition, the condition was open and obvious, someone had intentionally placed the yellow guy wire guard at the top of the pole, and a yellow guard is not required.

The trial court denied Galaxy's motion for a JML, recalling Berthaut and Benjamin to testify. The trial court then charged the jury.

Following deliberations, the jury returned a verdict in favor of Pamela in the amount of $30,000 in compensatory damages and $120,000 in punitive damages.

Galaxy then filed a post-trial motion for a JML. The trial court held a hearing on the motion, but never ruled on the motion, which was denied by operation of law. Galaxy filed an appeal with the state Supreme Court.

The Court, in its decision, remanded the case for a trial court to set aside the punitive damages award.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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