The court threw out an award of $2 million plus in pre-judgment interest.
A Jasper County jury found in favor of Ed English during an October 2005 trial. According to the opinion, English was electrocuted "when the scaffolding he was holding inadvertently contacted an energized 69,000 volt power line, owned and maintained by (Empire), at the Ramey's Supermarket in Webb City, Missouri."
The opinion continued:
The evidence indicated that in the ten-year period before this incident, Appellant acknowledged numerous accidental contacts with its electrical lines, including contacts causing six deaths and ten serious injuries, as well as thirty-two power line "hits" and three hundred thirty "close calls." Almost all of these accidental contacts or "hits" occurred at construction sites. Appellant's Director of Commercial Operations had investigated more than ten accident scenes involving the same kind of electrical hits. There was also testimony from Appellant's Director of Engineering and corporate representative that one such accident, also involving a forklift, occurred less than two months before English's incident.
The jury heard evidence that, unlike other hazards, electricity is an invisible and undetectable danger. Human factors studies have born out that power lines are difficult to see as, depending upon sky and lighting conditions, power lines are known to fade into the background and become less visible to those on the ground nearby. There are three recognized measures that can be implemented to protect against the hazard of accidental contact: eliminate the hazard, guard against the hazard, or warn of it.
There was testimony that Appellant knew that serious injuries and deaths often occur during accidental contact because workers often have trouble judging their distance to overhead power lines, even when they are trying to be careful. That knowledge came from various sources including government bulletins from the National Institute for Occupational Safety and Health ("NIOSH"). The bulletins reminded Appellant that many contractors and construction workers were unaware and may not understand the danger of contacting uninsulated power lines with scaffolding, cranes and other construction equipment. NIOSH recommended that information be given to contractors regarding these dangers and even urged electric utility companies to distribute NIOSH's recommendations on the hazards of working around energized lines.
Empire's attorneys tried to have the judgment overturned with a claim that English had been drinking before the accident, but the judges ruled that while there was evidence he had been drinking (his BAC was .05) there was no evidence that the drinking had anything to do with the accident.