Juvenal Ex Rel. Juvenal v. Okeene Public Schools , 878 P.2d 1026 ( 1994 )

WATT, Justice.

Appellants, the Juvenals, appeal from a jury verdict for the Okeene Public Schools, and the Okeene Public Works Authority, and from a directed verdict for the City of Ok-eene. The Authority is a public trust that owns and operates the electrical system in Okeene.

FACTS AND PROCEDURAL HISTORY

On May 26, 1988, Brandy Juvenal, age 11, fell while trying to climb to the roof of the Okeene grade school. Brandy was trying to reach a flat roof over the south entrance of the school building to retrieve the shoe of a child with whom she was playing. When Brandy fell, she landed on her feet and broke her ankles. Through her mother, Brandy sued the City, and the Schools for her injuries on May 12, 1989. Brandy’s mother sued personally for Brandy’s medical expenses and her own mileage to and from medical facilities. Later, on January 4, 1990, the Juvenals joined the Authority as a party defendant.

Brandy sought to reach the roof by climbing a metal pipe that was part of the school building’s electrical service. Wires from a nearby electrical pole were attached to the top of the service pipe. Those wires were connected to school building wiring. The electrical service had been installed by the Authority, which was responsible for it up to its connection point with the school building wiring. The pipe was attached to the south side of the building about two feet west of the west edge of the flat roof. The roof was ten feet above ground level. Brandy and her mother claimed that Brandy fell because she touched an exposed electric wire.

The parties agree that if any wire for the electrical service was exposed, it violated the National Electrical Code and the National Electrical Safety Code. The evidence conflicted on this issue, but the record contains testimony from which the jury could have concluded that the wiring complied with the Codes. Wayne Carter, an electrician in Ok-eene, testified that sometime in 1987 the Okeene School Superintendent asked him to inspect the electrical wiring at Okeene Grade School. The Superintendent told Carter he had heard a rumor a child had been hurt at the grade school whose injury might have been caused by the electrical service. Carter testified that his inspection showed the insulation on the connection between the service and the school building wiring was “weathered,” but “the wires was not exposed, no.”

Following his inspection, Carter told the Superintendent that the wiring satisfied the Codes, but suggested he be authorized to raise the service an additional five feet to make it “child proof.” The Superintendent then authorized Carter to raise the service. Carter, however, expected the Superintendent to tell him when to do the work because to do the work, Cartel* would have to turn off the School’s electric service, and leave it off for at least a day. Because of the misunderstanding between Carter and the Superintendent, the service was not raised until after Brandy fell.

Ronnie Cantrell was present when Brandy started to climb toward the roof of the school. Ronnie had fallen from the same roof the previous year. Ronnie’s fall was apparently the one about which the Superintendent had heard. At trial, Brandy testified,

Well, Ronnie said ... I bet you fall, and I said I bet I don’t. So I just started crawling up there.

The Juvenals claim that the trial court failed to recognize the standard of care the defendants owed Brandy and that its instructions on this issue deprived them of a fair trial. They also complain of other instructions for various reasons. In addition, the Juvenals contend that they were entitled to a directed verdict against all defendants and that the trial court erred in directing a verdict in favor of the City. The Juvenals also say the trial court erred in disallowing evidence that the defendants raised the height of the service after Brandy’s accident.

I.

Before considering the Juvenals’ contentions, we must decide an issue the Authority raises. The Authority claims that the Juvenals’ claim against it is barred because the Juvenals did not give timely notice to the Authority under § 156.B of the Governmental Tort Claims Act, 51 O.S.1986 Supp. §§ 151 et seq. That the Juvenals’ action is governed by the Governmental Tort Claims Act is undisputed. The Juvenals gave timely notice of them claim to the City under § 156.B of the Act.¹ The Juvenals, however, gave no notice of their claim to the Authority and did not sue it until more than one year after Brandy’s accident.

We have long held that substantial compliance with the notice provisions of the Act satisfies its provisions. Lucas v. Ind. Public School Dist. No. 35, 674 P.2d 1131 (Okla.1983). In Conway v. Ohio Casualty Ins. Co., 669 P.2d 766, 767 (Okla.1983) we said,

The purposes of the notice requirement are to further legitimate interests by promoting prompt investigation; by providing the opportunity to repair any dangerous condition and for speedy and amicable settlement of meritorious claims; and to allow the opportunity to prepare to meet possible fiscal liabilities.

The Authority does not claim that the Juvenals’ failure to give it notice separate from the notice to the City prejudiced the Authority’s rights in any way. We note that the City and the Authority were represented by the same counsel. Under the City’s municipal ordinances, the City’s Board of Trustees oversees the operations of the Authority. An employee of the Authority testified that the public views Authority employees as City employees. These circumstances convince us, and we hold, that the Juvenals’ notice to the City sufficiently apprised the Authority of the Juvenals’ claim to constitute substantial compliance with § 156.B of the Act.

II.

We turn now to the Juvenals’ contention that they were denied a fair trial because the trial court applied and instructed upon the wrong standard of care. The Juve-nals claim that the cumulative effect of the erroneous instructions was the denial of a fair trial.

The jury returned a verdict against the Juvenals. Consequently, we will presume that the verdict is correct. We will not disturb the verdict if there is any competent evidence to support it. McCoy v. Oklahoma Farm Bureau, 841 P.2d 568 (Okla.1992).

The best guide to determine if a party was prejudiced by erroneous instructions is to look at whether the verdict is supported by competent evidence. Teague v. United Truck Service, 499 P.2d 380, 384 (Okla.1972). If competent evidence supports the verdict, we will not disturb it because of erroneous instructions “unless it appears reasonably certain that the jury was misled.” [Emphasis as in the original] Teague, 499 P.2d at 384; Messier v. Simmons Gun Specialties, Inc., 687 P.2d 121, 129 (Okla.1984).

The Juvenals complain of the trial court’s Instruction 20, which told the jury that it should find for the Schools' and the Authority if they “acted in conformity with then current recognized standards.”²

The Juvenals claim that the trial court’s Instruction 20 violated this Court’s holdings in Rotramel v. Public Service Co., 546 P.2d 1015 (Okla.1976), and Woodis v. Oklahoma Gas & Electric Co., 704 P.2d 483 (Okla.1985). We disagree.

In neither Rotramel nor Woodis was the defendant a governmental entity. Here, both School and the Authority are governmental subdivisions. The Governmental Tort Claims Act, 51 O.S.1991 §§ 151 et seq., therefore, governs their liability. The Act creates different standards for municipally owned electric utilities than the common law standards by which the liability of privately owned electric utilities is measured.

Proof by a privately owned electric utility that it has complied with the National Electrical Code and the National Electrical Safety Code is not a complete defense to tort liability. Woodis, 704 P.2d at 486. On the other hand, under § 152.1 of the Act, the Schools and the Authority are immune from tort liability except “to the extent and in the manner provided in this act.”³ Section 155.28 of the Act expressly exempts governmental entities from liability for “acts or omissions done in conformance with then current recognized standards.”⁴ Thus, if a government owned public utility acts “in conformance with then current recognized standards,” § 155.28, Id., this fact forms a complete defense to liability arising from such acts.

Here, the evidence established that the standards governing the electrical service were the National Electrical Code and the National Electrical Safety Code, and the trial court so instructed. The Juvenals claim that the Codes imposed obligations upon the defendants but were not standards. We believe this is a distinction without a difference. The trial court correctly held that the Codes were standards and properly gave Instruction 20, note 2, Id. There was evidence from which the jury could have found that the defendants complied with the Codes.

The Juvenals complain of the trial court’s refusal to give other requested instructions, including the Juvenals’ version of their contentions. We have compared the Juvenals’ requested instructions to those given by the trial court. We find nothing to convince us that the failure of the trial court to give the Juvenals’ requested instructions makes it appear “reasonably certain that the jury was misled.” Teague, Id. 499 P.2d at 384.

The problem the Juvenals have with the trial court’s instructions appears to stem not from any fundamental misapplication of the law by the trial court, but from the exemptions granted to the defendants under the Governmental Tort Claims Act. For example, the Juvenals’ Requested Instruction 20 would have told the jury that the Codes were “minimum standards” so that complying with them “would excuse the additional duty to exercise ordinary care.”⁵ The Juvenals’ Requested Instruction 20 misstates the law applicable to this case because it is contrary to the express language of § 155.28 of the Governmental Tort Claims Act, Id. Note 2.

The jury’s verdict is supported by the evidence. We find nothing in the instructions showing a probability that the jury was misled to the Juvenals detriment. The Juvenals presented their theories to the jury. That the jury chose to reject their theories does not entitle the Juvenals to a new trial.

The Juvenals contend that because several of their requested instructions were Oklahoma Uniform Jury Instructions, the trial court’s failure to give them constituted reversible error. We disagree.

The trial court refused to give certain OUJI instructions, which the Juvenals contend constituted reversible error, under 12 O.S.1991 § 577.2. The OUJI instructions about which the Juvenals complain dealt with the definition of negligence. Section 577.2 requires that the trial court give OUJI instructions “unless the court determines that it does not accurately state the law.” The trial court, however, did give other instructions, which apprised the jury of the concept of duty, causation and damages. The Juve-nals were not prejudiced by the failure to give their requested instruction on this issue.

The trial court’s refusal to give the OUJI instruction defining negligence was not reversible error. This was not a negligence case. Instead, it was a common law premises liability case. This Court has carefully distinguished general negligence from premises liability. In Sutherland v. Saint Francis Hospital, Inc., 595 P.2d 780, 781-82 [1979], we held that the plaintiff in a premises liability case was not entitled to rely on principles of general negligence too. We said, “The common law has never seen fit to extend its principles of general negligence (as they came to be fashioned in the last century) to govern harm occasioned on the premises of others.... The common law approach has continued to command our unswerving commitment.” The trial court comprehensively instructed on the law of premises liability. The Juvenal’s did not except to any of the trial court’s instructions on this issue. The Juvenals were not entitled to an instruction on general negligence, as general negligence was not an issue in this case. Thus, the trial court did not err in refusing to instruct on general negligence.

Where, as is the case here, appellants can point to no prejudice arising from erroneous instructions, either given or refused, we will not disturb the judgment. 20 O.S.1991 § 3001.1.⁶ We construed § 3001.1 in Dutsch v. Sea Ray Boats, Inc., 845 P.2d 187, 191-92 (Okla.1992). In Dutsch we found that the instructions as a whole adequately instructed the jury concerning an issue dealt with in a requested instruction, which the trial court refused to give. We said, “we do not find that the instructions as a whole ‘probably resulted in a miscarriage of justice.’ 20 O.S.1991 § 3001.1.” The Dutsch language applies here. The Juvenals were not prejudiced by the trial court’s refusal to give the OUJI definition of negligence. Thus, there was no miscarriage of justice, nor were the Juvenals’ “constitutional or statutory rights” violated.

The language in 12 O.S.1991 § 577.2, requiring trial courts to give OUJI instructions that accurately state the law, must be interpreted in pari materia with § 3001.1. Construing these statutes together requires the conclusion that, although the trial court’s failure to give the OUJI instructions defining negligence instructions was a technical error, it was not grounds for reversal. In Smallwood v. State, 763 P.2d 142, 144 (Okl.Cr.1988) the Court of Criminal Appeals held that although the failure to give OUJI instructions is technically an error, where the instructions given “fairly and accurately state the applicable law, ... the error [is] utterly harmless ...” We adopt this language and find that the trial court’s refusal to give the OUJI instructions was, at most, harmless error.

III.

The Juvenals claim that the trial court erred in not directing a verdict in their favor against the Schools. In deciding whether a motion for directed verdict was properly denied we consider as true all evidence favorable to the Schools and disregard all evidence favorable to the Juvenals. Downing v. First Bank in Claremore, 756 P.2d 1227 (Okla.1988).

The Juvenals contend that, as a matter of law, the Schools were on notice of a dangerous condition because their Superintendent knew a child had fallen several months before, and the electrical service violated the safety Codes. The evidence, however, conflicted on these issues.

The Schools proved that in the thirty-five years their school building had been used no child had ever been hurt similarly to the Juvenal accident before the accident the previous year involving the other child. Whether the Schools were on notice of a dangerous condition under these circumstances was a question of fact, which the trial court properly submitted to the jury. There was also evidence to support a finding that the electrical service was not too low and complied with the Codes. The trial court correctly submitted this issue to the jury. The trial court, therefore, properly denied the Juvenals motion for directed verdict against the Schools.

IV.

The Juvenals contend that the trial court erred in directing a verdict for the City. In what way this was prejudicial to them the Juvenals do not explain. Their contentions against the City and the Authority were identical. Thus, the jury considered all the Juvenals’ theories of liability against the City in considering the Juvenals’ case against the Authority. The jury’s finding in the Authority’s favor shows that the Juvenals were not prejudiced by the directed verdict the trial court granted to the City. We will not consider a claimed error that did not prejudice the appellants.

V.

The Juvenals complain of the trial court’s refusal to allow them to prove that the service was raised after Brandy Juvenal’s fall. The Oklahoma Evidence Code, 12 O.S. 1991 § 2104.A Provides:

Error may not be predicated upon a ruling which admits or excludes evidence unless a substantial right of a party is affected ... [Emphasis added.]

Further, § 2407 of the evidence code prohibits proof of repairs made subsequent to an accident if offered to prove negligence in connection with the accident.⁷ The trial court excluded photographs of the service taken after it was raised, following Brandy Juvenal’s fall. Nevertheless, the trial court allowed plaintiff to introduce much evidence on this score. The jury heard detailed testimony about the Schools’ intention to raise the wiring before Brandy’s fall. Wayne Carter, the electrician who did the repair work, testified that he raised the service after Brandy fell. We see nothing prejudicial in the exclusion of additional evidence on this issue. Such additional evidence would have been cumulative. Excluding it was within the discretion of the trial court.

VI.

The Juvenals complain that the trial court improperly instructed the jury on 12 O.S.1991 § 109. Under § 109, no action to recover damages in tort for wrongful design or construction of an improvement to real property may be brought “more than ten (10) years after substantial completion of the project.” ⁸ According to the Juvenals, the Schools were not entitled to the benefit of such an instruction because the Juvenals’ cause of action against the Schools was based on the Schools’ failure to correct a known dangerous condition. We disagree.

At a hearing on the day trial began, the Schools urged the trial court to eliminate any claim the Juvenals might make before the jury of insufficiency in the design of the Schools’ wiling because it was undisputed that the electric service at the grade school had not been changed for far more than ten years before Brandy Juvenal fell. Thus, said the Schools, any claim for design insufficiency was bared by § 109. In response, counsel for the Juvenals took the position that the applicability of § 109 “is a question of fact: Has there within [been?] a change or improvement within ten years.” Then, the Juvenals’ counsel said that the Juvenals’ claim against the Schools “goes to design as well as failure to maintain.” If defective design was not part of the Juvenals’ theory of the case they need only have said so. Instead, they said that defective design was a part of their claim. The trial court properly instructed the jury on § 109.

CERTIORARI PREVIOUSLY GRANTED; COURT OF APPEALS OPINION VACATED; TRIAL COURT’S JUDGMENT AFFIRMED.

LAVENDER, V.C.J., and SIMMS, HARGRAVE and OPALA, JJ., concur. HODGES, C.J., ALMA WILSON, KAUGER and SUMMERS, JJ., concur in part, dissent in part.

1 . The version of 51 O.S. § 156.B effective at the date of Brandy’s accident provided in material part:

B. Claims against the state or a political subdivision are to be presented within ninety (90) days of the date the loss occurs.... A claim against the state or a political subdivision shall be forever barred unless notice thereof is presented within one (1) year after the loss occurs.

2 . Instruction 20 reads:

If you find that the Defendants, Independent School District No. 1-9 or the Okeene Public Works Authority, acted in conformity with then current recognized standards, then you must find for Defendants and against Plaintiffs.

In other words, if you find that the Defendants' actions regarding the electrical lines servicing the school building were at least in accordance with the then current recognized applicable professional and industry standards, then you must find for Defendants and against Plaintiffs.

3 . 51 O.S.1991 § 152.1 provides:

A. The state of Oklahoma does hereby adopt the doctrine of sovereign immunity. The state, its political subdivisions, and all of their employees acting within the scope of their employment, whether performing governmental or proprietary functions, shall be immune from liability for torts.

B. The state, only to the extent and in the manner provided in this act, waives its immunity and that of its political subdivisions. In so waiving immunity, it is not the intent of the state to waive any rights under the Eleventh Amendment to the United States Constitution.

4 .51 O.S.1991 § 155.28 provides:

The state or a political subdivision shall not be liable if a loss or claim results from:

28. Acts or omissions done in conformance with then current recognized standards.

5 . Plaintiff's Requested Instruction 20 reads:

The standards contained in the National Electric Code or National Electric Safety Code are minimum standards. Therefore, compliance with those standards, even if you should find the defendants did comply, would not excuse the additional duty to exercise ordinary care.

6 . 20 O.S.1991 § 3001.1 states in material part:

No judgment shall be set aside or new trial granted by any appellate court of this state in any case, civil or criminal, on the ground of misdirection of the jury ... unless it is the opinion of the reviewing court that the error complained of has probably resulted in a miscarriage of justice, or constitutes a substantial violation of a constitutional or statutory right.

7 . 12 O.S.1991 § 2407 provides:

When, after an event, measures are taken which, if taken previously, would have made the event less likely to occur, evidence of the subsequent measures is not admissible to prove negligence or culpable conduct in connection with the event. This section does not require the exclusion of evidence of subsequent measures when offered for another purpose including proof of ownership, control, impeachment, or feasibility of precautionary measures where controverted.

8 . 12 O.S.1991 § 109 provides:

No action in tort to recover damages

(i)for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property

(ii) for injury to property, real or personal, arising out of any such deficiency, or

(iii) for injury to the person or for wrongful death arising out of any such deficiency,

shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement.