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IN THE COURT OF APPEALS 11/12/96 OF THE STATE OF MISSISSIPPI
NO. 95-CA-00022 COA

LOYD B. FURLOW, JR. AND NELLIE FURLOW APPELLANTS v. M.D. BAILEY & SONS ELECTRIC CO., INC., AND STANDARD ROOFING AND SHEET METAL, INC. APPELLEES

THIS OPINION IS NOT DESIGNATED FOR PUBLICATION AND MAY NOT BE CITED, PURSUANT TO M.R.A.P. 35-B

TRIAL JUDGE: HON. JAMES E. GRAVES JR. COURT FROM WHICH APPEALED: HINDS COUNTY CIRCUIT COURT ATTORNEYS FOR APPELLANTS: JOHN B. MACNEILL JOE S. DEATON III EUGENIA RYAN GAERIG ATTORNEYS FOR APPELLEES: PATRICK SHAUN WOOTEN JOSEPH MCDOWELL JOHN LOW NATURE OF THE CASE: PERSONAL INJURY

TRIAL COURT DISPOSITION: JURY FOUND FOR THE APPELLANTS AS AGAINST ONE DEFENDANT, APPELLEES WERE GRANTED DIRECTED VERDICTS.

BEFORE THOMAS, P.J., KING, AND SOUTHWICK, JJ. THOMAS, P.J., FOR THE COURT:

Loyd B. Furlow, Jr., was injured when a wooden sign, owned by Byrds, Bucks & Bass, Inc. (BB&B) , and hung by Standard Roofing & Sheet Metal, Inc. (Standard Roofing) by M.D. Bailey and Sons Electric Company (Bailey Electric), fell and struck him on his head and shoulders. As a result of his accident, Furlow and his wife, Nellie Furlow, filed suit against BB&B, Standard Roofing, and Bailey Electric alleging that the sign had been negligently constructed, hung, and suspended. Furlow alleged that the defendants were liable through strict liability, res ipsa loquitur, and common law negligence. The trial court granted a directed verdict on the issues of strict liability and res ipsa loquitur and allowed the case to proceed to the jury under the theory of common law negligence. The jury returned a verdict finding that the Furlows were entitled to a total of $2,000,000.00 in damages. The jury found that BB&B was 25% at fault in causing Furlow's injury, and that Furlow's employer, Boat Fever (who was not a party to the lawsuit), was 75% at fault in causing the injury. The jury found that Furlow was 0% negligent in causing his injuries, and further exonerated both Standard Roofing and Bailey Electric. The Furlows filed a motion for JNOV or a motion for new trial. In their motion, the Furlows alleged that the jury verdict was contrary to the weight of the evidence and the law; that the trial judge erred by granting the defendants' motions for directed verdicts on the issues of strict liability and res ipsa loquitur; and that the trial judge erred in refusing certain jury instructions offered by the Furlows. The trial judge denied the Furlows' motion in its entirety. As to Standard Roofing and Bailey Electric, the Furlows appeal to this Court assigning the following seven alleged errors: I. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN GRANTING A DIRECTED VERDICT IN FAVOR OF BAILEY ELECTRIC AND STANDARD ON THE ISSUE OF STRICT LIABILITY.

II. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN REFUSING PLAINTIFFS' INSTRUCTION P-42.

III. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN REFUSING PLAINTIFFS' INSTRUCTIONS P-39 AND P-44.

IV. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN REFUSING PLAINTIFFS' INSTRUCTIONS P-26 AND P-28

V. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN REFUSING PLAINTIFFS' INSTRUCTION P-3, A PEREMPTORY INSTRUCTION AGAINST BAILEY ELECTRIC.

VI. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN REFUSING PLAINTIFFS' INSTRUCTION P-4, A PEREMPTORY INSTRUCTION AGAINST STANDARD.

VII. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN GRANTING DEFENDANTS' INSTRUCTION D-4.

Finding no error, we affirm. UNDISPUTED FACTS Loyd Furlow was an employee of Boat Fever, a business owned by Dr. Toney Byrd. Adjacent to and sharing the same building and lot as Boat Fever, was BB&B, a store which sold hunting and fishing equipment. BB&B was also owned by Dr. Byrd. Boat Fever and BB&B opened for business in March of 1991. Early that year, both businesses began to prepare for their grand openings. As part of these preparations, the manager of Boat Fever, Micky Byrd (brother of Dr. Byrd), and Furlow discussed the possibility of building a large sign which would advertise the location of Boat Fever and which would be visible from the interstate highway. Furlow was told by the manager to build the sign. Furlow used an aluminum frame from a houseboat as the base for the sign, he painted the frame, and then he welded extensions to the frame. The frame was designed to hang between two telephone poles which were tall enough so that travelers on I-55 would be able to see the sign from the interstate. In addition to the Boat Fever sign, a 4' x 8' sign advertising BB&B was constructed by an employee of BB&B. It was intended that this smaller sign be affixed to the Boat Fever sign. Prior to, and in preparation for the grand opening, Furlow called Bailey Electric to come to the premises of Boat Fever and set the telephone poles from which the Boat Fever and BB&B signs were to be hung and assist in hanging the signs. On March 5, 1991, Bailey Electric set the telephone poles. A few days later, Bailey Electric employees returned to the premises to hang the signs, however, soon after arriving, they realized that their boom truck would not have enough height to hang the sign on the forty-five-foot telephone poles. Because they could not complete the job, Bailey Electric

called Standard Roofing and requested that it bring its larger boom truck to the Boat Fever premises and assist in hanging the signs. Once the Standard Roofing truck arrived, a Bailey Electric employee attached the crane from the Standard Roofing Truck to the Boat Fever sign. The Boat Fever sign was then attached to the telephone poles. The testimony is disputed as to when the BB&B sign was connected to the Boat Fever sign. However, the testimony is undisputed that Bailey Electric and Standard Roofing had nothing to do with attaching the Boat Fever sign and the BB&B sign together. Ronnie Johnson, an employee of Boat Fever, drilled the holes in the BB&B sign and attached the BB&B sign to the Boat Fever sign with shackles and chains. At various times after the Boat Fever and BB&B signs were hung, several witnesses noticed that the BB&B sign was whipping and jerking in the wind. On March 22, 1991, fourteen days after the signs were hung, Furlow was on the premises of Boat Fever in his capacity as an employee of Boat Fever. While Furlow was standing in the common parking area shared by both Boat Fever and BB&B, the plywood BB&B sign tore through its shackles, fell down, and smashed into Furlow's head, face, and chest.

DISPUTED FACTS According to Michael Byrd, the son of Dr. Byrd and the manager of BB&B, he was hanging the BB&B sign under a boat when Furlow suggested that he attach the BB&B sign beneath the Boat Fever sign. Michael Byrd testified that Furlow then sketched the Boat Fever sign with eye bolts on the bottom and chains hanging down from the eye bolts to attach the smaller BB&B sign. Michael Byrd testified that Furlow was in charge of hanging the signs and that he relied on Furlow to hang the BB&B sign under the Boat Fever sign. Furlow denied that he had any responsibility or duty in the designing, painting, crafting, or hanging of the BB&B sign. Roy Lee Lockhart, an employee of Standard Roofing, testified that when the Boat Fever sign was attached to the telephone poles, the BB&B sign had not yet been attached to the Boat Fever sign. However, several witnesses testified that the BB&B sign was already attached to the Boat Fever sign before it was hung by Standard Roofing and Bailey Electric. DISCUSSION I. WHETHER THE LOWER COURT COMMITTED REVERSIBLE ERROR IN GRANTING A DIRECTED VERDICT IN FAVOR OF BAILEY ELECTRIC AND STANDARD ON THE ISSUE OF STRICT LIABILITY.

At the close of Furlow's case-in-chief, all of the defendants moved for a directed verdict on the issues of strict liability and res ipsa loquitur. The trial court granted both motions and let the case proceed to the jury on the theory of common law negligence. Furlow argues that the trial court erred in granting the directed verdict because, according to Furlow,

the jury could have reached a verdict that Standard Roofing and Bailey Electric were strictly liable to the Furlows because they failed to protect or warn Mr. Furlow of the danger which would result from the BB&B sign, which Furlow asserts was a dangerous condition. In essence, Furlow argues that the employee of Boat Fever created a dangerous condition when he connected the BB&B sign too close to the Boat Fever sign. However, Furlow argues that not until the signs were hung in the air by Bailey Electric and Standard Roofing that the signs became inherently dangerous, thereby making this a strict liability case. Furlow does not argue that the trial court erred in granting a directed verdict on the theory of res ipsa loquitur; therefore, we consider that issue waived. On the issue of strict liability, we disagree with Furlow's contentions and find that the trial court was correct in granting the directed verdict on this issue. In granting the motion, the trial court made the following ruling: Then the Court determines as a matter of law that the condition which existed at that time was not an ultrahazardous condition as defined in Am. Jur. where the definition is that it's an activity with a risk of serious harm which cannot be eliminated by the exercise of the utmost care. The Court determines as a matter of law that that was not the condition which existed at that time so the motion for directed verdict on the issue of strict liability is granted.

As the trial court noted, strict liability is inappropriate unless the court determines that the defendant was unable "to eliminate the risk by the exercise of reasonable care." Restatement (Second) of Torts

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