Burley v. Louisiana Power & Light Co.

• Decision Date: 05 September 1975
• Docket Number: 56036,Nos. 56010,s. 56010
• Citation: 319 So.2d 334
• Parties: Terry N. BURLEY v. LOUISIANA POWER & LIGHT CO. et al. COAL OPERATORS CASUALTY CO. v. LOUISIANA POWER & LIGHT COMPANY et al.
• Court: Louisiana Supreme Court

Page 334

319 So.2d 334

Terry N. BURLEY v. LOUISIANA POWER & LIGHT CO. et al.

COAL OPERATORS CASUALTY CO. v. LOUISIANA POWER & LIGHT COMPANY et al.

Nos. 56010, 56036.

Supreme Court of Louisiana.

Sept. 5, 1975.

Rehearing Denied Oct. 9, 1975.

James C. Cockfield, Cockfield & Gravolet, New Orleans, for plaintiff-applicant in 56010.

W. Malcolm Stevenson, Monroe & Lemann, Allen H. Danielson, Jr., O'Keefe, O'Keefe & Berrigan, New Orleans, for defendant-respondent in 56010.

W. Malcolm Stevenson, Monroe & Lemann, New Orleans, for defendant-applicant in 56036.

James C. Cockfield, Cockfield & Gravolet, Allen H. Danielson, Jr., O'Keefe, O'Keefe & Berrigan, New Orleans, for plaintiff-respondent in 56036.

SUMMERS, Justice.

This tort action was instituted by Terry N. Burley to recover for personal injuries and damages arising out of an industrial accident in which he received a serious electric shock when a metal reinforcing rod he was installing came in contact with an electric power line.

The accident occurred on October 25, 1967 while he was working on the construction of an addition to the Belle Chasse purification plant in Plaquemines Parish. He named Louisiana Power and Light Company, the owner of the electric power line, and their liability insurers, ABC Insurance Company and XYZ Insurance Corporation, as defendants.

In a separate proceeding Coal Operators Casualty Company, the workmen's compensation insurer of Westbank Reinforcing Steel Corporation, Burley's employer, sought judgment as Burley's subrogee against Louisiana Power and Light Company, Pratt-Farnsworth, the principal contractor on the construction project, and Plaquemines Parish, the owner of the purification plant, for compensation paid to Burley. Prior to trial Coal Operator's suit against Pratt-Farnsworth was dismissed by stipulation, and the cases were consolidated for trial.

Burley was severely injured when a metal reinforcing rod he was working with on the third floor of an unfinished building came in contact with an uninsulated public utility electric power line operated at 13.8 KV phase to phase (13,800 volts). At the time the line was only five feet seven inches from the edge of the building near the level of the floor on which Burley was standing.

Judgment was rendered in Burley's favor in the district court against Louisiana Power and Light Company, awarding him $165,500. Coal Operators Casualty Company was decreed to be entitled to reimbursement for compensation paid to Burley.

Louisiana Power and Light Company appealed, and Burley answered the appeal claiming an increase in damages. Finding that the National Electric Safety Code was introduced into evidence at the trial by Burley without supporting evidence to establish a foundation for its introduction, the Fourth Circuit concluded that there was no evidence that the code's safety standards were accepted officially by a governmental agency or by experts in the field. Thus, the court reasoned, no probative weight could be given to the code's safety standards. Accordingly, the Court of Appeal did not reach the merits of the case. Instead, acting upon the authority of Article 2164 of the Code of Civil Procedure, the Court of Appeal set aside and annulled the trial court judgment and remanded the case to the trial court 'in order to afford an opportunity for all parties to submit any evidence which they deem appropriate to show applicability of the National Electric Code.'

In separate applications Burley and Louisiana Power and Light Company applied to this Court for certiorari. Each urges that the case not be remanded and that it should have been decided on the record as presently formed.

Burley contends that there is evidence in the record upon which the Court of Appeal could conclude that the National Electrical Safety Code is a standard which was followed by L P & L; and that L P & L's replies to interrogatories propounded by Burley establish this fact. These admissions, Burley contends, constitute evidence that L P & L has adopted the code's standards. The code's standards are therefore relevant evidence which the Court of Appeal should have considered without remand. Alternatively, he contends that a certified copy of an ordinance of the parish of Plaquemines, submitted in connection with his application for rehearing, establishes that the National Electric Safety Code has been adopted as a standard in that parish applicable to this case.

L P & L's application for review asserts that the Court of Appeal, in essence, held that plaintiff had not proved his case of liability by a preponderance of evidence and the remand improperly gives him a second chance to do so.

Two contentions can readily be disposed of:

First, the ordinance of the parish of Plaquemines, upon which Burley relies to support his contention that the National Electric Safety Code has been adopted as an official safety standard in Plaquemines Parish, specifically prescribes that 'The provisions of this Ordinance shall not apply to . . . installations used by electric public utility . . . in distribution of electricity . . . in the exercise of their function as such . . . and located outdoors or in buildings used exclusively for that purpose . . .' Obviously, since the ordinance excludes electric public utilities from its regulations, it may not be relied upon to establish safety standards in Plaquemines Parish under the facts of the instant case.

Secondly, L P & L's contention that the Court of Appeal, in essence, held that Burley had not proven his case by a preponderance of evidence is not a necessary inference to be gained from that opinion. Instead, as already noted, it is an acceptable inference that the Court of Appeal made no determination of the merits, and this Court's writ of certiorari was issued upon that premise.

We do not agree that no probative weight could be given to the National Electric Safety Code. Therefore, no remand based upon that proposition was indicated.

The code, found to be properly admitted by the Court of Appeal upon the authority of Section 3713 of Title 13 of the Revised Statutes,¹ is designated as National Bureau of Standards Handbook 81. It is the result of a project sponsored by the U.S. Department of Commerce, National Bureau of Standards, entitled 'Safety Rules for the Installation and Maintenance of Electric Supply and Communication Lines.' The Handbook consists of definitions, grounding rules, and parts of the National Electric Safety Code, dealing with the construction and maintenance of overhead and underground lines.

The work is the result of agreement by members of the American Standards Association, consisting of the following: Accident Prevention Department of the Association of Casualty and Surety Cos., American Institute of Electrical Engineers, American Mutual Alliance Federation of Mutual Fire Insurance Cos., American Transit Assoc., Association of American Railroads, Association of Edison Illuminating Cos., Edison Electric Institute, International Association of Electrical Inspectors, International Association of Governmental Labor Officials, International Brotherhood of Electrical Workers, International Municipal Signal Association, Inc., National Association of Railroad and Utilities Contractors Assoc., National Electrical Manufacturers Assoc., National Safety Council, Public Service Commission of Wisconsin, Rural Electrification Administration, U.S. Department of Agriculture, The Telephone Group and the Western Union Telegraph Co.

The Bureau, as sponsor of the work, has relinquished its prerogative of determining details in return for the implied understanding that the many parties concerned will accept such a code as they can agree upon themselves.

Other than the code, neither Burley nor L P & L introduced any expert testimony of minimum required vertical and horizontal building clearances for uninsulated wires. Pictures, testimony and interrogatories answered by L P & L show that the line was five feet seven inches from the structure upon which Burley was standing when he was electrocuted.

When Burley's counsel offered the code into evidence to show a violation by L...