Dobson v. Louisiana Power & Light Co.

• Decision Date: 06 September 1990
• Docket Number: Nos. 89-C-2894,89-C-2931,s. 89-C-2894
• Citation: 567 So.2d 569
• Parties: Teri DOBSON, et al. v. LOUISIANA POWER AND LIGHT COMPANY. 567 So.2d 569
• Court: Louisiana Supreme Court

Page 569

567 So.2d 569

Teri DOBSON, et al. v. LOUISIANA POWER AND LIGHT COMPANY.

Nos. 89-C-2894, 89-C-2931.

567 So.2d 569

Supreme Court of Louisiana.

Sept. 6, 1990.

Rehearing Denied Oct. 18, 1990.

Eugene G. Taggart, George F. Riess, Kenneth P. Carter, Kathryn J. Lichtenberg, W. Glenn Burns, Monroe & Lemann, for Louisiana Power & Light, defendant-respondent.

J. Thomas Anderson, Baham & Anderson, for Teri Dobson, et al., plaintiffs-applicants.

DENNIS, Justice. ^*

This is a wrongful death action, pursuant to Louisiana Civil Code article 2315.2, by the surviving spouse and five minor children of a tree trimmer, Dwane L. Dobson, who was electrocuted on April 24, 1985 when his metallically reinforced safety rope contacted an uninsulated 8,000 volt electric power distribution line. The trial court awarded the widow and her children $1,034,054.50 in damages, after finding the deceased free of fault and holding the Louisiana Power & Light Company liable in negligence for failure to maintain its right of way, insulate its high voltage distribution line, or give adequate warnings of the line's dangerous nature. The court of appeal affirmed the decree as to the power company's negligence, but reversed in part, reducing the plaintiff's recovery by 70% based on a finding that the deceased had been guilty of fault to that degree. Dobson v. Louisiana Power & Light Co., 550 So.2d 1334 (La.App. 1st Cir.1989).

The facts, as the trial judge found them, were as follows: Dwane L. Dobson, a 29 year old tree trimmer, was electrocuted while attempting to remove a pine tree from the backyard of a house owned by a Mrs. Davidge in Hammond, Louisiana. The tree was located near the rear property line, which was adjacent to a right of way for LP & L's uninsulated high voltage distribution lines serving an apartment complex. Dobson was wearing a safety line he had made by inserting a metal wire inside a 13 foot nylon rope. He used the safety line to lash himself to the tree while cutting with his chain saw, and he had inserted the wire in the rope to prevent it from being accidentally severed by the saw. Just prior to the accident, Dobson had cut a section from the top of the tree and had lowered it with the help of his coworkers below. As he descended to cut another section, his safety line touched one of the uninsulated distribution lines and he was electrocuted.

The LP & L high voltage distribution lines behind Mrs. Davidge's property were installed in 1968 to carry electricity 315 feet from Wardline Road to the University Apartments. The lines were elevated from the road to a point behind the Davidge house and placed underground from there to the apartments. LP & L originally intended that the entire span be buried to serve other commercial purposes but those developments did not occur.

Mrs. Davidge complained many times to LP & L about hazards created by the condition of the elevated lines and the right of way behind her house. She complained about transformers blowing up, limbs falling into the wires, fires caused by trees falling on the lines, and having to call the city fire department to extinguish the blazes. Some time prior to the accident she asked LP & L to remove a pine tree behind her house because it was "spindly" and overhanging the power lines. This was the same tree she later hired Dobson to remove. LP & L rejected her requests because the base of the tree was in her backyard and not in LP & L's right of way. LP & L never came to inspect or remove the tree. During this time LP & L suffered from the lack of adequate funds to properly trim trees in its rights of way in the Hammond area. Also, LP & L had no regular team or program devoted exclusively to the inspection of its lines and rights of way but relied on its employees to watch for dangers as they performed other duties.

Dobson had started his tree trimming service several months before his death. He had no formal training but was learning from hard work, experience and talking with other local tree trimmers. After he accidentally damaged a single residence service line at another location in Hammond, an LP & L representative informed him that LP & L would lower such single unit service lines to facilitate tree trimming and that LP & L would assist him generally in the future. The LP & L representative did not inform Dobson that some of its major distribution lines, unlike its single residence service lines, were uninsulated or that LP & L would lower or de-energize major distribution lines for his tree trimming jobs. The day before Dobson's death he was successful in getting LP & L to lower a single consumer service line during his work. However, because Dobson had no reason to believe that LP & L would have lowered or deenergized the major distribution lines serving the apartment complex to facilitate his removal of the pine tree for Mrs. Davidge, he did not request LP & L to do so.

The trial judge concluded that LP & L was guilty of several negligent acts or omissions that caused the fatal accident: Despite LP & L's constructive and actual knowledge of the dangers created by its uninsulated lines and right of way conditions, it failed to perform adequate inspections of its electric lines, trim or remove the tree or trees creating the hazard, provide insulated covering of dangerous parts of the lines, or place adequate warnings of the high voltage electricity on or near its uncovered wires. Furthermore, the trial judge found that even though LP & L had actual knowledge that Dobson was an inexperienced tree trimmer who would be working near its uninsulated distribution lines in Hammond, the company failed to warn Dobson of the dangers associated with its high voltage distribution lines. With respect to Dobson, the trial judge ultimately found that he did not know of or appreciate the special danger created by the uninsulated overhead high voltage distribution lines; and further that Dobson was not negligent because he was unaware of the extreme danger.

The trial court's purely factual findings were free of clear or manifest error. For example, its resolution of the most hotly contested factual issue--whether Dobson was unaware that the distribution lines were not insulated--was based on reasonable inferences of fact and evaluations of credibility.

As an important background fact, the evidence clearly established the great disparity of danger between "distribution" lines and "service" lines. "Distribution" lines are uninsulated wires used to deliver very high voltage electricity--as much as 8,000 volts--throughout the community. In contrast, "service" lines are insulated with nonconductive covering and used to transfer much lower voltage electricity from distribution lines to individual dwellings. Despite this great difference in danger, distribution lines carry no special markings or warnings but are black in color and similar in appearance to service lines. Dobson's coworkers and relatives testified that they thought the distribution lines were insulated both because they appeared to have black covering and because birds and squirrels traversed them without harm. Thus, the trier of fact reasonably could have inferred that the distribution line's appearance belied its lethally uninsulated nature and made it difficult for an untrained person to appreciate its fatally dangerous character. ¹

The evidence was in conflict regarding whether Dobson had knowledge of the dangers of the distribution lines. On the one hand, Dobson's coworkers and relatives testified that he was ignorant of the deadly conductivity of the distribution lines, and the plaintiffs' experts were of the opinion that his actions prior to the accident indicated that he was unaware of the danger. On the other hand, a power company trouble-shooter testified that he had talked to Dobson on two occasions prior to the accident and that it was his habit to warn tree trimmers of such dangers and to offer to drop or deenergize power lines for them. In the aggregate, however, the trouble-shooter's testimony was equivocal as to whether he had warned Dobson, specifically, of the absence of insulation on distribution lines or had definitely offered to deenergize them for Dobson's operations. ² Moreover, these conversations occurred only because Dobson had accidentally knocked down service lines at two dwellings and the company representative had come to inspect the damage and to repair the service lines. Thus, the service line incidents involved only property damage to insulated service lines and had no direct relationship to the risk of personal injury or death created by uninsulated distribution lines or the need for precautions against such hazards. Additionally, there is no evidence that prior to the accident Dobson had ever had any first hand experience with uninsulated distribution lines or had received any demonstrative instruction in how to identify and guard against their dangers. Therefore, the evidence is easily susceptible to the reasonable inference that the trouble-shooter's discussions with Dobson focused primarily on the prevention of future damage to the company's insulated service lines rather than on Dobson's safety while working around uninsulated distribution lines. This inference bolsters the trial court's reasonable decision to credit the testimony of the plaintiffs' witnesses to the effect that Dobson was unaware of the extreme danger of the uninsulated distribution lines before the accident. Where there are factual issues upon which the evidence is in conflict, reasonable evaluations of credibility and reasonable inferences of fact by the trial court should not be disturbed on review. Rosell v. ESCO, 549 So.2d 840 (La.1989); Arceneaux v. Domingue, 365 So.2d 1330 (La.1978); Canter v. Koehring, 283 So.2d 716 (La.1973).

Nevertheless, we agree with the court of appeal that the trial court made a reversible mistake in concluding that Dobson was free of any fault that caused...