Dartlone v. Louisiana Power & Light Co.

• Decision Date: 21 June 2000
• Docket Number: No. 33,597-CA.,33,597-CA.
• Citation: 763 So.2d 779
• Court: Court of Appeal of Louisiana — District of US
• Parties: Billy Wayne DARTLONE and Cynthia Dartlone, Plaintiffs-Appellees, v. LOUISIANA POWER & LIGHT COMPANY a/k/a Entergy Corporation and the City of Monroe, Defendant-Appellant.

763 So.2d 779

Billy Wayne DARTLONE and Cynthia Dartlone, Plaintiffs-Appellees, v. LOUISIANA POWER & LIGHT COMPANY a/k/a Entergy Corporation and the City of Monroe, Defendant-Appellant.

No. 33,597-CA.

Court of Appeal of Louisiana, Second Circuit.

June 21, 2000.

Rehearing Denied August 17, 2000.

COPYRIGHT MATERIAL OMITTED

City of Monroe Legal Dept. by Nanci S. Summersgill, Assistant City Attorney, Crawford & Anzelmo by Donald J. Anzelmo, Monroe, Counsel for Appellant, City of Monroe.

Cotton, Bolton, Hoychick & Doughty, L.L.P. by David P. Doughty, Rayville, Counsel for Appellees.

Before PEATROSS, KOSTELKA & DREW, JJ.

PEATROSS, J.

This appeal arises out of the fatal electrocution of 17-year-old Jed Dartlone. On July 20, 1994, while working a summer job for the Tensas Basin Levee Board, which consisted of cleaning and weedeating the levee area, Jed noticed a wire lying in an area of tall grass. He picked up the wire and was electrocuted and he died instantly. Jed's parents, Billy Wayne and Cynthia Dartlone, sued Louisiana Power & Light Company, a/k/a Entergy Corporation ("LP & L") and the City of Monroe ("the City"). LP & L settled with the Dartlones prior to trial, leaving only the City as a defendant. After a bench trial, the trial court found that the City owed a duty to Jed, had breached that duty and was 100 percent at fault in the accident. The trial court awarded the Dartlones $709,958.55 in total damages, representing 8350,000 per parent in wrongful death damages and $9,958.55 in special damages, with legal interest from the date of judicial demand.

The City appeals, assigning the following six errors: (1) the trial court erred in finding that the City owed a duty to Jed (2) the trial court erred in finding that the City breached its duty to Jed; (3) the trial court erred in finding that the City was not protected by statutory immunity; (4) the trial court erred in finding that expert witness Rick Brooks had a conflict of interest and striking the entirety of his testimony; (5) the trial court erred in finding that the City was solely at fault in the accident that killed Jed and in failing to assess the fault of the decedent and third parties; and (6) the damage award constitutes an abuse of discretion.

FACTS

On the morning of this tragic accident, Jed and a co-worker, Alphonso Scott, were instructed to clean and weedeat on the Ouachita Parish Levee, north of the City. The area where the boys were to work was next to the Monroe pumping station facility, near the 800 block of Park Avenue. To the west of where the boys parked their truck was the pumping station and to the east was a set of stairs. Jed was driving the truck that morning and exited the truck on the east side next to the stairs. The grass was very tall and thick. Jed reached down to pick up a piece of wire lying in the grass and was electrocuted. Alphonso testified that Jed fell face forward into the grass. The wire was bare, silver in color and was not rubber-coated or insulated, which would have indicated that it was a power line. Alphonso also testified that there was nothing to indicate that the wire was a downed power line; but, when he touched Jed's blue jeans, he felt an electric shock. Alphonso immediately radioed his supervisor to report the accident and get assistance. The accident occurred at approximately 10:00 a.m.

The power line, electricity and all other equipment involved in this accident were owned by LP & L, not the City; and the parties stipulated that the accident did not occur on City property. In fact, there is an LP & L substation very near where the accident occurred. The downed power line was "just over" the substation's fence.

Earlier that morning, at approximately 8:00 a.m., the downed line had been reported to another City employee by Johnny Frith, a part-time City employee who had been mowing near the pumping station. Arnold Rowell, City Maintenance Supervisor, to whom Mr. Frith reported the downed line, was in charge of the City's water treatment facility, which was located several hundred yards from the downed line. The downed line supplied power to the pumping facility; and, concerned about people using the levee possibly coming into contact with the line, Mr. Rowell walked over to the line to examine it. Mr. Rowell saw the cable lying across a metal stairway and noticed no burn marks that would have indicated an energized line. Mr. Rowell concluded that the line was a guide wire for the telephone pole. In order to determine whether the line was, in fact, a guide wire or a power line, and to determine whether it had anything to do with the river pumping station, Mr. Rowell sent out two other City employees, Gerald Battaglia and Marvin Sloan, both electricians, to examine the line.

That morning, Mr. Battaglia and Mr. Sloan had been working to isolate and repair a chlorine leak at the water treatment facility. Both men testified that the chlorine leak had been isolated at the time they went to investigate the downed line, which was approximately 8:25 a.m. They also testified that, on arriving at the scene of the suspected downed line, they noticed that one phase of the three-phase Delta System¹ that serviced the pumping station was down. Before exiting the truck, Mr. Battaglia radioed the following message to Joe Wright, the operator at the plant: "We have a power line down. Don't know if its alive or dead. We will sit with it until LP & L arrives. Call Arnold [Rowell] and tell him to call LP & L." Mr. Battaglia then exited the truck in order to inspect the line. Mr. Sloan testified that he did not exit the truck out of "respect" for electricity.

Mr. Battaglia testified at trial that he positioned himself within 12 inches of the line and noticed that it was lying across the metal railing of the stairway. Mr. Battaglia further testified that, since the line making contact with the metal railing was lying in the wet grass and there was no smoke or smell, he concluded that the line was dead. He also testified, however, that he had taught safety classes on the topic of electricity in which he instructed students that one should never assume that a line is dead unless you can "check behind" the line to ensure that it is not energized. Both Mr. Battaglia and Mr. Sloan testified that they did not "check behind" this line and Mr. Sloan admitted that he just assumed the line was dead. Furthermore, neither Mr. Battaglia nor Mr. Sloan was confident enough of this assumption to touch the line. Nevertheless, the two men chose not to stay with the power line as they had told Mr. Wright they would do, but, instead, returned to the pumping facility. No barricades, warnings or markings of any kind were put out to warn the public of the downed power line.

The record reveals differing testimony as to who told whom to call LP & L. The reality is, however, that neither Mr. Rowell, Mr. Wright, Mr. Battaglia nor Mr. Sloan contacted LP & L regarding the downed line. Gerald Massey, the Water Treatment Supervisor for the City testified that it is policy to call LP & L upon noticing a downed line which services the facility. All of the evidence indicates that the only way for LP & L to gain knowledge of a downed power line, such as the one that resulted in Jed's death, is by customer reports or passers-by who notice the downed lines and call LP & L to report them. The City was the customer of LP & L serviced by this particular line.

Todd Borderloin, a Planning Engineering Supervisor with LP & L, testified at trial on behalf of the Dartlones. Mr. Borderloin was called to the accident site as a representative of LP & L. Mr. Borderloin testified that LP & L's lightning tracking system had indicated a lightning strike in this area on the day prior to the accident. He explained that the lightning tracking system indicates a one half to one mile area in which lightning strikes have occurred, but does not "pinpoint" the exact location of such strikes and does not indicate whether any equipment owned by LP & L has been struck. Rather, it is a device utilized to measure the intensity of the weather in a general area so that LP & L can allocate repair resources effectively. He also testified concerning the presence of "lighting arresters" on the electrical distribution system involved in this case, stating that there were such arresters in place on this system² and that the wire had been spliced in several places prior to the accident.

Mr. Borderloin also testified that LP & L has no procedure or policy for locating downed power lines; rather, as previously stated, it relies on customers or passers-by to report such problems. He did admit, however, that LP & L was aware that, if a line in a Delta System such as this was to fall, it would remain energized unless it was "solidly grounded."

Another LP & L employee assigned to investigate the accident was Danny Carpenter, an Area Design Supervisor. Mr. Carpenter also testified at trial that there were lightning arresters in place. He further testified that the line had been spliced several times.³ Mr. Carpenter confirmed Mr. Borderloin's testimony regarding LP & L's policy, or lack thereof, regarding locating downed power lines. Both Mr. Borderloin and. Mr. Carpenter stated that, had the wire been "solidly grounded," it could have been touched without danger of electrocution. Each witness admitted, however, that this wire was obviously not "solidly grounded."

As part of its case in chief, the City offered the testimony of Rick Brooks, an electrical engineer. The exclusion of Mr. Brooks' testimony is at issue in this appeal and will be discussed, infra, under the appropriate assignment. We will, however, outline his testimony here.

Mr. Brooks had previously provided opinions to LP & L in this case, but had been released when LP & L was dismissed from the suit. Thereafter, the City retained Mr. Brooks and called him to testify at trial. The trial court accepted...Or. Brooks as an...