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

• Decision Date: 30 July 1975
• Docket Number: No. 5061,5061
• Citation: 316 So.2d 907
• Parties: Ross CATES, Individually, etc., Plaintiff and Appellant, v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al., Defendants and Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 907

316 So.2d 907

Ross CATES, Individually, etc., Plaintiff and Appellant, v. BEAUREGARD ELECTRIC COOPERATIVE, INC., et al., Defendants and Appellees.

No. 5061.

Court of Appeal of Louisiana, Third Circuit.

July 30, 1975.

Rehearing Denied Aug. 28, 1975.

John J. Cummings, III, New Orleans, for plaintiff and appellant.

Jones, Kimball, Patin, Harper, Tete & Wetherill by Carl H. Hanchey, Lake Charles, Aycock, Home, Caldwell, Coleman & Duncan by L. E. Hawsey, III, Franklin, John Henry LeBleu, Lake Charles, for defendants and appellees.

Before HOOD, CULPEPPER and WATSON, JJ.

CULPEPPER, Judge.

This suit was originally filed by Ross Cates, individually and on behalf of his minor son, Larry G. Cates, seeking damages for personal injuries sustained by Larry when he came in contact with an energized electric wire on a utility pole owned by the defendant, Beauregard Electric Cooperative, Inc., and situated on the property of the defendant, Cecil Ribbeck. After suit was filed on September 19, 1973, Larry G. Cates became 18 years of age on February 2, 1974, and he was named a party plaintiff. The district judge granted motions for summary judgment in favor of both the electric company and the landowner. Plaintiffs appealed.

The decisive issue is whether defendants are entitled to summary judgment on the grounds that Larry G. Cates was contributorily negligent.

The facts, as shown by the pleadings, depositions, affidavits and other documents, which may be considered for purposes of the summary judgment, are as follows: The defendant, Cecil Ribbeck, owns approximately 70 acres of piney woods land in a rural area near Moss Bluff, Louisiana. The property is bound on the west by a blacktop highway, Perkins Ferry Road, and on the north by Joe Miller Road. There are barbed wire fences along the roads, but none on the other boundaries. On the land is an old farm house, which has been abandoned for 15 or 20 years. The property is uninhabited and unused. It is grown up in bushes, briars and trees.

When the old farm house was in use, the defendant, Beauregard Electric Cooperative, Inc., had erected an uninsulated 7620 volt feeder line from Perkins Ferry Road a distance of about 800 feet to the house. The line was supported by four wooden poles about 28 feet in height, the last pole being near the house. A transformer was attached to the pole near the house at an elevation of about 22 feet. Two insulated copper wires for 110 volt service ran from this transformer to the house.

When the farm house was abandoned in about 1957, the service wires from the transformer to the house were cut, and they hung down from the pole to an elevation of about 10 feet from the ground. The stinger line from the transformer up to the 7620 volt line on top of the pole was disconnected by opening a hot line clamp. The 7620 volt primary line on the top of the pole remained energized. This was the condition of the electrical equipment on September 30, 1972, the time of the accident with which we are involved in this case.

On the date of the accident, the plaintiff, Larry Cates, who was then 16 years of age, and his brother, Ronald B. Cates, 9 years of age, and his friend, Kent Guy, 16 years of age, were riding horses in the area, as they had done many times before. They entered Ribbeck's property through an unfenced portion of the boundary. Their purpose was to pick up some copper wire which they had seen lying on the ground on a previous visit. The shop teacher at their high school had asked the class to bring in copper wire for sale for the benefit of The Future Farmers of America.

The boys first rode to the area where they had previously seen the copper wire lying on the ground, but it was gone. They then went to the old farm house and decided to try to remove the two insulated copper wires hanging down from the transformer. Once before, Kent Guy had tried to shinny up this pole to get these copper wires but he was unable to climb the pole.

Larry Cates decided to climb the pole and get the wire. The deposition of his brother, Ronald Cates, describes what happened as follows:

'Well, once before Kent had tried to climb up a pole and get the copper wire but he couldn't so we were just riding along and they decided they wanted to go over and so then they looked up there and saw that copper wire. So Larry started over there towards the pole and stood up on the saddle and climbed up. And he stuck his left foot on the transformer and his right foot on the bottom ring and he went--he held around the pole with his right arm, and he reached in his pocket to get the pliers to cut the copper, and he started slipping and he reached up there and grabbed it.'

Kent Guy stated in his deposition that after Larry shinnied up the pole and got on the transformer, he heard something cracking and popping and heard Ronnie scream, and then he looked to the top of the pole. Kent describes what he saw as follows:

'Q. What was happening on the pole?

'A. He had his left hand on the wire and the sparks were flying.

'Q. Which wire are you talking about now that he had his hand on?

'A. The wire that goes from pole to pole.

'Q. It would be the wire closest to the top of the pole?

'A. Yes.'

As a result of burns received in the accident, Larry Cates lost his left arm at the shoulder, his right arm near the wrist and his left leg. He is scarred over most of his body and he is paralyzed, from the 5th thoracic vertebra down.

Plaintiffs' principal contention is that summary judgment is inappropriate because there are genuine issues as to material facts within the meaning of LSA-C.C.P. Article 966. In their brief, plaintiffs list these issues of fact as follows:

'(1) Status of Larry Cates with reference to the power company;

'(2) Status of Larry Cates with reference to the landowner;

'(3) Negligence of Cecil Ribbeck;

'(4) Negligence of Beauregard Electric Cooperative, Inc.;

'(5) Proximate cause of injury;

'(6) Negligence of Larry Cates;

'(7) Applicability of the doctrine of 'attractive nuisance;' and

'(8) Wanton negligence of either defendants.'

We will discuss these alleged genuine issues of material facts in the order in which they are listed above.

STATUS AS TO POWER COMPANY

The first alleged issue is the status of Larry Cates with reference to the Power Company. Plaintiffs say there is a fact issue as to whether Larry was a trespasser, a licensee or an invitee, and that this issue is material because the duty of the Power Company toward Larry varies according to his status.

The plaintiff, Mr. Ross Cates, filed in the record his affidavit stating that the property owned by Cecil Ribbeck was used as a 'recreational area' by numbers of people who engaged in such activities as picnicking, hunting, fishing, swimming, blackberry picking, horseback riding, hiking and even motorcycle racing. Mr. Cates states in his affidavit that he could produce 50 witnesses who actually used the property for these purposes prior to the date of the accident in 1972. Plaintiffs contend that this affidavit, together with the depositions of Kent Guy and Ronald Cates that they had been on the property many times for the purpose of horseback riding and hunting, are sufficient to show that this was a 'recreational area' frequented by children and other people and that there was an implied invitation or at least implied permission by the owner for such use.

Even if the affidavits and depositions are sufficient to raise an issue of fact as to whether young Cates entered the premises as an invitee or a licensee, there is no question that he exceeded the scope of any such implied invitation or permission and became a trespasser, when he began to climb the service pole for the purpose of taking copper wire which he knew was the property of another. The law is that an invitee or licensee loses this status when he goes outside the portion of the premises covered by the invitation or permission, Comment, Land Occupiers Liability to Trespassers, 18 La.L.Rev. 716 (1957); Prosser, Law of Torts, Section 61, at pages 391--92, 4th Ed. (1971); Restatement, 2d, Torts, Section 341, Comments (a)--(c) (1965). In Louisiana this principle has been applied to deny recovery by a tavern patron who entered a wareroom in the rear of defendant's saloon and sat down on a barrel covered with lye, Foshee v. Grant, 152 La. 308, 93 So. 102 (1922); by a super market customer who slipped and fell behind a meat counter, Clement v. Bohning, 159 So.2d 495 (La.App., 4th Cir. 1964); and by a maid who fell through a sky light in an apartment she was not supposed to clean, Gray v. Elgutter, 5 La.App. 315 (1st Cir. 1926).

In the early case of Lapouyade v. New Orleans Railway & Light Company, 138 La. 237, 70 So. 110 (1915), plaintiff's 17 year old boy was killed by an electric shock when he reached more than six feet up defendant's wooden lamp post on the public street and jerked a wire hanging down from an arc light, his intent being to brighten the light. The court denied recovery on the grounds that the boy was a trespasser, even though he did not climb the pole, as in the present case. The court held:

'We do not think the case is one exactly of contributory negligence. The young man's act was not one of negligence, but of trespass. If a man climbs one of the posts of the defendant company, and lays his bare hand upon a naked wire, and receives a fatal shock, the defense to a suit for his death will not be contributory negligence, but that he was a trespasser, and that his own act caused his death. Stansfield v. Chesapeake Telephone Co., 123 Md. 120, 91 A. 149, 52 L.R.A. (N.S.) 1170. The present case is not so flagrant a one as that. The young man did not climb the post. He only went out of his way to it, and reached up to where the danger lurked; and the danger was not equally evident. But the two cases are analogous in that in both the party injured was a trespasser, and that the proximate cause of his injury was his own...