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McFann v. Southwestern Power Electric Co.12/14/2005
ision test of his nurse and his own, Dr. Faludi explained that the test is based on the subjective responses of the patient, and the patient may not be accurately depicting what he sees or trying his best.
Otis visited Dr. Cooksey, a dermatologist, on March 18, 2003. Dr. Cooksey saw no signs of scarring, hyper pigmentation or other signs of electrical burns on the skin of Otis's right eyelid, forehead or cheek. He did see an area of hyper pigmentation or dark skin in the middle of the plantar aspect of his right foot; however, he said he could not tell if it was caused by a burn or some other injury .
Ms. McFann testified that the only physician that would help her was a Dr. Togen, who worked in a neighborhood clinic. She said Dr. Togen is also a minister. This was approximately 5 months after the incident. Dr. Togen put Otis in the hospital for X-rays of Otis's left hip and right foot. McFann attributed the physicians notes referring to Otis's left hip and the X-ray of same as a mistake. It was his right hip that hurt him, she said.
At this time, she said Otis was suffering from leg and foot pain, asthma, stomach problems and pain in his right eye. Ms. McFann had discontinued working to stay at home with Otis. Otis transferred from Woodlawn to Southwood and from Southwood to Hamilton Terrace because of too many absences and "attitude" problems, which McFann and Otis attributed to the incident.
Ms. McFann subsequently admitted that the reason she was not working was because she was laid off. To reconcile this inconsistency with her prior testimony that she quit her job to take care of her son, she said she was laid off because she missed too much work to take care of her son.
Otis McFann testified that he did not cut the wire intentionally. He said that he was cutting branches and the next thing he knew he woke up in the living room of the house. He denied that the right side of his face was hurting. He said he had a bad headache and his eye would not open all of the way. He said all of his eyebrows were burned off.
Otis testified at trial that he saw the wire near the bushes prior to the accident. At his deposition, he testified that he did not see the wire prior to the accident. He said that the accident caused him to have blurred vision, foot cramps and now he can't get along with people.
After the taking of evidence, the court ruled for SWEPCO from the bench, basing its ruling largely on credibility determinations. The trial judge found that the testimony of Ms. McFann and Otis was contradicted by the medical evidence. The court concluded that there was no injury to Otis other than the minor skin burn to his face caused by the flash. He noted that the McFanns' testimony was not consistent with their deposition testimony, and they were simply not credible.
The court stated that Mr. Huelett was the most credible witness. Huelett's report stated that Otis reported that he did not receive a shock, but that the side of his face around his eye felt like sunburn. Although the court acknowledged that Otis suffered a minor injury , it was not compensable because SWEPCO was not at fault. Based upon the pictures in evidence, the court ruled that it was obviously SWEPCO's pole and wire and nobody had any business cutting it. He concluded that the wire was cut intentionally.
The court subsequently signed a judgment dismissing the plaintiff's claims.
Discussion
Appellant raises two assignments of error.
By her first assignment, appellant argues that the trial court was manifestly erroneous in determining that SWEPCO was not responsible for the injuries sustained by
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