95-126 La.App. 5 Cir. 7/25/95, McAdams v. Louisiana Power & Light Co.

• Citation: 659 So.2d 820
• Parties: 95-126 La.App. 5 Cir
• Decision Date: 25 July 1995
• Court: Court of Appeal of Louisiana (US)

Page 820

659 So.2d 820

95-126 La.App. 5 Cir. 7/25/95

Janette Crow McADAMS v. LOUISIANA POWER & LIGHT COMPANY, et al.

No. 95-CA-126.

Court of Appeal of Louisiana,

Fifth Circuit.

July 25, 1995.

William E. William, Donaldsonville, for plaintiff/appellant.

Michael M. Noonan, Margaret Diamond, Patrick J. O'Cain, New Orleans, for defendants/appellees.

Before BOWES, DUFRESNE and WICKER, JJ.

[95-126 La.App. 5 Cir. 1] WICKER, Judge.

This is a wrongful death action arising out of the 1988 death of Ralph McAdams, Jr., who was electrocuted when his paint roller's aluminum extension handle contacted a high-voltage line while he was painting a sign at a service station. His wife, Janette Crow McAdams filed this lawsuit, naming as defendants the Parish of Jefferson, Louisiana Power and Light Company (hereafter LP & L), owner of the power line, and Statewide Stations, Inc. (hereafter Statewide), owner of the service station and the sign. Jefferson Parish was dismissed from the suit, LP & L settled with the plaintiff and was released, and the case proceeded to trial against Statewide only. Following a five-day jury trial, the plaintiff's claims against Statewide were dismissed on the jury's finding that Statewide had not been negligent. Plaintiff has appealed. We affirm, for the reasons set forth below.

FACTS

In her petition plaintiff alleged that Statewide had been negligent in the following respects: failing to recognize the dangerous condition posed by the location of its sign in close proximity to the high-voltage power line and to take the necessary steps to reduce the danger; failing to warn petitioner's husband of the dangers associated with painting said sign when it is in close proximity to the power line; failing to insure that an LP & L representative was on site at the time plaintiff's husband was painting the sign to insure his safety; failing to move the sign to a location farther away from the power line; failing to insure that the minimum vertical and horizontal clearances were maintained between the sign and the power line; and failing to take all necessary precautions to avoid said accident.

[95-126 La.App. 5 Cir. 2] The following facts were established at trial: McAdams was employed by General Maintenance Corporation. At the time he was killed, McAdams was working pursuant to a contract between General Maintenance and Texaco, Inc., painting an outdoor advertisement sign at a Texaco service station at Lapalco Avenue and Manhattan Boulevard in Harvey, Louisiana. ¹ The sign was located near a high-voltage power line. On the day of the accident, McAdams was using a forty-foot aluminum extension ladder and a roller on a long aluminum pole to paint the sign. Although there were no eyewitnesses to the accident, the physical evidence indicates that McAdams placed the ladder against one of the sign's upright support posts, climbed the ladder, and proceeded to paint the sign with the roller on the aluminum handle. The metal extension pole contacted the power line and electrical current traveled through the pole, through McAdams' body, and down the ladder into the ground, killing him.

The power line had been installed by LP & L in 1980 and had remained in place up to the time of the accident. Statewide Stations built the Texaco service station in 1982 and erected the sign on its own land 59 1/2 inches from LP & L's uninsulated 13.8 kilovolt power line.

The defense read into the record the deposition of Joachim Pantilides, secretary-treasurer of General Maintenance, who had died by the time of trial. He testified that McAdams had violated company safety rules by going up the ladder with a metal extension pole and that all employees had been warned against such conduct. He said that the company owned a lift truck designed to be used at these types of sites, with a platform to raise the painter up so that a ladder and roller extension will not be necessary. He stated that an alternative method would have been for the worker to use a block-and-tackle and a bosun's chair to hoist himself up and down the sign, and that each truck General Maintenance sends to a jobsite is stocked with the necessary equipment, including a bosun's chair. In [95-126 La.App. 5 Cir. 3] addition, fiberglass painting poles were available; in fact, after the accident to McAdams, the job was finished by using a fiberglass painting pole. He also testified that McAdam's foreman, Bob Shurley, had received training in OSHA safety regulations about a year before the accident.

In contrast, Shurley--who was not only McAdams' supervisor but also his cousin--testified that the company did not provide training in proper methods of painting near power lines. Shurley admitted it was the workers' common practice to ignore warning labels on aluminum ladders such as that used by McAdams, which cautioned against using the ladder around electric lines.

Anastasios Pantilides, president of General Maintenance, testified it was company policy to paint signs by using lift trucks from which the worker could apply paint without needing an extension handle for the paint roller. Although a lift truck was available on the day of the accident, it was not used; there was conflicting testimony indicating that shrubbery around the base of the sign would have made use of the truck unfeasible. He stated that General Maintenance had no real training for its employees in working around power lines.

There was expert testimony to the effect that Occupational Safety and Health Administration (OSHA) regulations require a ten-foot clearance for workers near power lines, but that those regulations apply only as between employers and employees. There also was expert testimony that the clearances between the sign and the power line violated National Electric Safety Code rules, but that those rules apply to the power company installing the lines, not to later constructions built near power lines. Finally, it was established that the clearance between the power line and the sign complied with the parish building code.

The jury's verdict resulted from the first jury interrogatory, which was, "Do you find that plaintiff has proven, by a preponderance of the evidence, that Statewide Stations was negligent or at fault in its placement of the Texaco sign at issue and thereby created an [95-126 La.App. 5 Cir. 4] unreasonably dangerous condition?" The jury responded "no," and thus was not required to answer the rest of the interrogatories.

ISSUES

Plaintiff makes the following assignments of error:

I. The trial judge failed to charge the jury correctly, despite plaintiff's objection, giving the proximate cause charge in a power line contact case rather than the accepted and required duty risk analysis.

II. The trial judge, over the objection of plaintiff, gave confusing and incorrect charges on the relevancy and how the jury could consider the Occupation Safety and Health Administration standards.

III. The [trial judge erred in allowing the] introduction of a corporation deposition of General Maintenance Corporation, when the President of the Company testified and was cross-examined at the trial.

IV. The verdict is against the law and weight of the evidence.

We shall address Assignments No. II and III first and shall consider Assignments No. I and IV together. We set forth the issues as phrased by plaintiff.

Can OSHA regulations be considered by the jury to determine the safety of a workplace even though the injured party is not an employee?

The trial judge gave the following instructions concerning OSHA regulations:

You have heard references to regulations promulgated by OSHA, the Occupation Health and Safety Administration [sic]. OSHA regulations impose duties only on employers and employees. OSHA regulations do not impose any legal duties on a non-employer like Statewide/Texaco in this case. Consequently, while you may consider conformance with or violation of OSHA regulations in determining whether any fault existed on the part of Ralph McAdams, his co-workers and his employers, I charge you to remember that OSHA regulations are not relevant to the plaintiff's claims against Statewide/Texaco. You should not consider conformance with or violation of OSHA regulations in determining whether any fault existed on the part of Texaco/Statewide.

You may, however, consider whether Ralph McAdams and his employer, General Maintenance, violated any applicable OSHA regulations in determining whether they breached the [95-126 La.App. 5 Cir. 5] standard of care that applies to everyone, to exercise reasonable care under the circumstances. OSHA regulations apply to both employers and employees. OSHA regulations required that employers shall furnish to their employees a place of employment that's free from recognized hazards that are likely to cause death or serious physical harm to employees. OSHA regulations also provide that employees shall comply with the regulations which are applicable to his own actions and conduct. Should you find that Ralph McAdams or General Maintenance violated applicable OSHA regulations, you may take this into consideration in deciding whether any negligence on their part caused or contributed to the accident.

Now, while OSHA standards primarily apply to the employer/employee relationships, they are certainly relevant to the safety of the workplace even though Mr. McAdams was not an employee of Texaco. And while the National Electric Safety Code primarily applies to power companies, it is certainly relevant to the safety of a workplace even though Mr. McAdams was not an employee of Texaco. [Emphasis added.]

Plaintiff asserts that the trial judge's charges regarding OSHA regulations were confusing and misleading to the jury. Specifically, plaintiff points to the statements emphasized in the quotation above. Plaintiff contends that the second statement was correct, but that the first statement was incorrect and in conflict with the second, was totally...