Cates v. Beauregard Elec. Co-op., Inc.

• Decision Date: 23 February 1976
• Docket Number: No. 56949,56949
• Parties: Ross CATES, Individually and as Natural Tutor of his Son, Larry G. Cates v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al.
• Court: Louisiana Supreme Court

Page 367

328 So.2d 367

Ross CATES, Individually and as Natural Tutor of his Son Larry G. Cates v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al.

No. 56949.

Supreme Court of Louisiana.

Feb. 23, 1976.

Rehearing Denied March 26, 1976.

John J. Cummings, III, Gregory F. Gambel, New Orleans, for plaintiffs-applicants.

Carl H. Hanchey, Lake Charles, Lemuel E. Hawsey, III, Baton Rouge, for defendants-respondents.

DIXON, Justice.

Larry Cates, sixteen years and eight months old, suffered an electrocution accident on September 30, 1972 which left him seriously maimed. An action for damages was brought against Beauregard Electric Cooperative, Inc., owner of the utility pole on which the accident occurred, and Cecil Ribbeck, owner of the land where the pole was located. Other defendants, originally named, have been dismissed and are not before us.

Motions for summary judgment were filed by the electric company and the landowner. At first the motions for summary judgment were denied, but, on application for rehearing, the district judge decided that there were no material issues of fact, and gave judgment for the defendants, rejecting the plaintiff's claim.

On appeal, the trial court was affirmed. Cates v. Beauregard Electric Cooperative, 316 So.2d 907 (La.App.1975). The majority opinion of the Court of Appeal found that the undisputed facts convicted young Cates of contributory negligence, preventing his recovery. The dissenter in the Court of Appeal, interpreting Odom v. Hooper, 273 So.2d 510 (1973), to hold that contributory negligence cannot be decided on a motion for summary judgment, was of the opinion that contributory negligence was an issue which should have been submitted to the jury.

The defendant electric cooperative attached to its motion for summary judgment the depositions of Larry Cates, his younger brother, Ronnie (nine at the time of the accident), and Kent Guy (sixteen at the time of the accident), who were the only persons present when Larry was injured. Also attached to the motions were evidence, testimony and drawings describing the physicial condition of the electrical apparatus. Defendant Ribbeck relied on other depositions to establish a history of the electrical wire on his property. Plaintiff, in answer to the motions for summary judgment, filed affidavits which tended to establish that, although the land was privately owned, it had acquired the status of a recreational area and was relatively open to public use for activities such as horseback riding, hunting, fishing, etc.

Ribbeck's land consisted of about seventy acres near Moss Bluff. Part of the land was fenced and part was unfenced. The land was bounded on two sides by roads. It contained an old farmhouse which had been abandoned for fifteen or twenty years, and was in a dilapidated condition.

Electrical service had been run to the farmhouse some time after 1948, and had been discontinued about 1957. The electrical wires entered the property about 800 feet from the location of the pole where the accident occurred. There was a tap at the main line pole at the intersection of North Perkins Ferry Road and Dunn's Ferry Road. The main line was charged with 7620 volts, single phase. The primary wire and the neutral wire left the main line and ran easterly across the road a little more than 70 feet to a pole with a crossarm, then continued on to Ribbeck's land for over 360 feet to a pole without a crossarm. At this point the primary conductor was at the top of the pole, and the aluminum ground (called the system ground) was attached to the pole 4 feet below the primary. Both wires then (originally) continued for over 430 feet to the pole where the accident happened.

At that point, the line ended. There was a transformer on the pole from which two insulated service wires had once furnished 110 or 120 volts of electricity for the household current at the farmhouse. These wires had been cut. On the day after the accident their ends were about 10 feet above ground level. On the day of the accident there is testimony that the ends of the wires hung from the pole to a point less than 6 feet from ground level.

The pole was 29 feet tall. The primary conductor was 28 feet 4 inches from the ground. Four feet below the primary was the attachment for the neutral wire. Only about 4 feet of the neutral wire remained on the pole. Below the neutral attachment was the transformer, necessary to reduce the current to the voltage required for the household service. The transformer was a little over a foot and a half tall.

A ground wire also grounded the pole; stapled to the pole, it ran its full length to a rod embedded in the earth.

There was no connection between the primary conductor and the transformer. That is, the transformer was not energized. The only energized wire on the pole was the primary conductor, 28 feet 4 inches from the ground.

Larry Cates did not remember anything about the day on which the accident happened until after he fell to the ground from the top of the pole which he had climbed. Ronnie Cates' deposition disclosed that he and Larry went to Kent Guy's home about 4:00 o'clock in the afternoon, and all three rode their horses on to the Ribbeck place near the abandoned house. When they noticed the wire, Larry stood on his saddle and climbed up the pole to a point where his right foot was on the transformer hanger and his left foot was on the top of the transformer. Ronnie saw Larry reach for the pliers to cut the wire, slip, and grab the primary conductor at the top of the pole.

In his deposition, Kent Guy told of meeting Larry and Ronnie at about 3:30 in the afternoon, that he changed clothes and went horseback riding with the other two boys, and was with them until the accident happened at about 6:00 or 6:30. Kent told of riding with Larry about a month and a half earlier in the vicinity of the pole where the accident happened. Kent's horse had run into a wire that was only three or four feet above the ground, stretched from the pole where the accident happened back to the pole toward the highway. The wire broke when the horse ran into it. Kent said that he picked up one end of the wire and threw it into the bushes out of the way.

This episode was recited by Kent Guy to justify his opinion that there were no energized wires on the pole which he and Larry set out to climb; Kent apparently figured that the top wire in a primary distribution line ought to be the neutral wire.

Kent had with him a tool which he described first as wire cutters and then as 'diagonal pliers.' He said that he was working on a small tractor when the Cates boys invited him to go riding with them, and was using the pliers at that time. He also said, however, that, after he finished the work on the tractor, he went into the house and changed clothes before going riding.

Kent Guy said they tried to pull down the two dangling wires from the pole, but were unsuccessful. Kent then attempted to climb the pole, but could not. He then gave the pliers to Larry, who put them in the game pocket of a coat or jacket, and then proceeded to shinny up the pole. Kent said he asked Larry 'if he was sure that all the wires up there were dead.' Larry replied in the affirmative. (Larry was not unintelligent, and was not unaware of the dangers of electricity). Kent allowed his attention to wander when suddenly Ronnie screamed. Kent looked up and saw Larry hanging by his left hand from the primary conductor.

The employees of the electric cooperative in investigating the accident found the ends of the two insulated wires hanging from the pole to be more than 10 feet from the surface of the ground. They also found flash marks, indicating electrical burns, on the transformer hanger, on the pole ground and on the primary conductor. There was burned flesh on the primary conductor and on the pole ground wire.

When a summary judgment is sought it 'shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to material fact, and that mover is entitled to judgment as a matter of law.' C.C.P. 966. Further, when a motion for summary judgment is made and supported, the adverse party cannot rest on allegations of his pleadings, but must set out, in evidence or depositions, 'specific facts showing that there is a genuine issue for trial.' C.C.P. 967.

The question presented is an uncomplicated one under C.C. 2315: 'Every act whatever of man that causes damage to another obliges him by whose fault it happened to repair it.' For the purposes of the motion for summary judgment, the defendant electric cooperative admits negligence. Defendant Ribbeck makes no such admission. The position of both defendants is that, because of the acts of plaintiff himself, either intentional or negligent, there can be no recovery.

We agree with both courts below. Larry was injured in an accident caused by his own fault, not the fault of defendants. From the uncontroverted facts before us, we can reach no other conclusion under the present state of the law.

By either subjective or objective standard, Larry's fault is clear. A reasonable person should have known the risk involved in shinnying up a pole to cut an electric wire. Larry knew something about electricity. He was reminded of the danger by his companion as he climbed the pole, but apparently assumed that there were no live wires on the pole. He was not entitled to such an assumption. The fact that a horse had run into a sagging wire several weeks before without harm to horse or rider did not justify a belief that it was safe to climb a 30 foot pole to cut and remove wire.

Uninsulated electric wires carrying high voltage electricity are extremely dangerous. In some situations there might be recovery for injury in spite of fault on the part of the injured person, but not where, as here, one is hurt while in a place...