Henry v. Barlow

• Decision Date: 04 May 2005
• Docket Number: No. 2004-1657.,2004-1657.
• Citation: 901 So.2d 1207
• Parties: Randy James HENRY, et al. v. Danny L. BARLOW, et al.
• Court: Louisiana Supreme Court

901 So.2d 1207

Randy James HENRY, et al. v. Danny L. BARLOW, et al.

No. 2004-1657.

Court of Appeal of Louisiana, Third Circuit.

May 4, 2005.

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Steven Broussard, Broussard & Hart, L.L.C., Lake Charles, LA, for Plaintiffs/Appellees, Randy James Henry and Connie Henry.

Albin A. Provosty, Provosty, Sadler, deLaunay, Fiorenza & Sobel, Alexandria, LA, for Defendant/Appellant, CLECO Utility Group, Inc.

Earl G. Pitre, Pitre, Halley & Sikich, Lake Charles, LA, C. Shannon Hardy, Penny & Hardy, Lafayette, LA, for Defendant/Appellee, USAgencies Casualty Insurance Company and Danny L. Barlow.

Court composed of SYLVIA R. COOKS, MARC T. AMY, and GLENN B. GREMILLION, Judges.

AMY, Judge.

A police officer was injured when he came into contact with a damaged utility line while responding to a single-vehicle accident, in which the driver had damaged the pole supporting the utility line. The officer brought suit against the driver of the vehicle and his insurer, as well as the utility company. The trial court granted a summary judgment in favor of the driver of the vehicle and his insurer, dismissing the plaintiff's claims against them. For the following reasons, we reverse and remand for further proceedings.

Factual and Procedural Background

On November 26, 2000, the plaintiff, Randy James Henry, a corporal with the DeQuincy Police Department, sustained the injuries which form the basis of the instant matter while responding to an automobile accident call. The essential facts leading up to Mr. Henry's injuries are not in dispute.

Sometime during the early morning hours of November 26, the pick-up truck that Danny Barlow was driving exited Louisiana Highway 12 in DeQuincy, Louisiana, and struck an electrical pole that provided power to a nearby funeral home. The impact sheared the pole at its base, although the tension in the utility lines prevented it from falling to the ground.

Corporal Henry was dispatched to the scene at approximately 5:00 a.m. to investigate the accident. He stated in his deposition that upon arriving on the scene, he noted that two utility lines which had connected two poles were sagging approximately a foot-and-a-half above the cab of the truck, and another utility line which connected to the funeral home had become disconnected and was resting on the ground. Corporal Henry confirmed that neither of the truck's two occupants were injured and warned the driver about the power lines. Mr. Barlow's father was called to pick up Mr. Barlow and the other passenger, who was his brother. A tow truck was also called to the scene to remove the Barlow vehicle.

At some point thereafter, Corporal Scott Stream also arrived on the scene. The officers released Mr. Barlow and his brother to leave the scene with their father. The tow truck arrived and was able to pull the truck from underneath the sagging lines. The officers walked the area where the pick-up truck had been to remove any broken pieces of the vehicle from the ground. Corporal Henry stated in his deposition that Corporal Stream told him that he could leave and he (Corporal Stream) would stay on the scene and wait until a representative from the power company came to repair the utility lines. Corporal Stream stated in his deposition that as the men started to walk back toward their patrol cars, he heard an electrical "arcing sound" and turned around to see Corporal Henry lying unconscious on the ground.

Corporal Henry was taken to the hospital by ambulance, and then by helicopter to Galveston, Texas for treatment. On October 11, 2001, Corporal Henry brought suit¹ against Mr. Barlow and his automobile insurer, USAgencies Casualty Insurance Company, Inc. ("USAgencies"), and against CLECO Utility Group, Inc. ("CLECO"), as the owner and operator of the utility lines.

Thereafter, Mr. Barlow and USAgencies filed a Motion for Summary Judgment, alleging that Mr. Barlow's duty to use reasonable care in the operation and control of his vehicle did not extend "to protect an investigating officer who is injured while walking under a low hanging electrical line some forty or more minutes after the accident, after the defendant and his vehicle have been removed from the scene[.]" Mr. Barlow and USAgencies also asserted that the professional rescuer doctrine prohibited any recovery by the plaintiffs. Following a hearing on the matter, the trial court granted a summary judgment in favor of Mr. Barlow and USAgencies, dismissing all claims against them with prejudice.

CLECO appeals, asserting that the trial court erred in granting a summary judgment in favor of Mr. Barlow and USAgencies because Mr. Barlow was the legal cause of Mr. Henry's injuries.²

Discussion

Mr. Barlow and USAgencies asserted in their memorandum in support of summary judgment that "Mr. Henry's injuries were not caused by the legal fault of the defendants, BARLOW and USAGENCIES." In support of the assertion, they suggested at trial and on appeal that a motorist's duty to use reasonable care in the control and operation of his vehicle does not encompass the risk that forty minutes after a single-vehicle accident, a police officer investigating the scene would suffer electrocution injuries while walking under low-hanging electrical lines after the motorist and vehicle had both been removed from the accident scene. Mr. Barlow and USAgencies also point out that Mr. Henry had acknowledged the lines and warned others that they were not hanging properly.

CLECO, however, alleges that Mr. Barlow breached his duty as a motorist to maintain proper control of his vehicle and created a "continuing hazard" by damaging the utility pole and live power lines. CLECO further asserts that the danger associated with striking a utility pole in an automobile accident, aside from immediate injury to vehicle occupants, is the risk of contact with the damaged high voltage lines.

CLECO argues, then, that the plaintiff's electrocution as a result of contact with live power lines within an hour of the accident was within the scope of protection afforded by Mr. Barlow's duty to maintain control of his vehicle.

"An appellate court reviews summary judgments de novo, applying the same criteria as the district court in determining whether summary judgment is appropriate." Colson v. Johnson, 01-967, p. 1 (La.App. 3 Cir. 12/12/01), 801 So.2d 648, 649-50, writ denied, 02-103 (La.3/22/02), 811 So.2d 939. Louisiana Code of Civil Procedure Article 966 provides for summary judgment, stating, in relevant part:

A. (1) The plaintiff or defendant in the principal or any incidental action, with or without supporting affidavits, may move for a summary judgment in his favor for all or part of the relief for which he has prayed. The plaintiff's motion may be made at any time after the answer has been filed. The defendant's motion may be made at any time.

(2) The summary judgment procedure is designed to secure the just, speedy, and inexpensive determination of every action, except those disallowed by Article 969. The procedure is favored and shall be construed to accomplish these ends.

....

C. (1) After adequate discovery or after a case is set for trial, a motion which shows that there is no genuine issue as to material fact and that the mover is entitled to judgment as a matter of law shall be granted.

(2) The burden of proof remains with the movant. However, if the movant will not bear the burden of proof at trial on the matter that is before the court on the motion for summary judgment, the movant's burden on the motion does not require him to negate all essential elements of the adverse party's claim, action, or defense, but rather to point out to the court that there is an absence of factual support for one or more elements essential to the adverse party's claim, action, or defense. Thereafter, if the adverse party fails to produce factual support sufficient to establish that he will be able to satisfy his evidentiary burden of proof at trial, there is no genuine issue of material fact.

In reviewing the record, the appellate court must draw all reasonable inferences from it in the light most favorable to the non-movant. Hines v. Garrett, 04-806 (La.6/25/04), 876 So.2d 764.

Louisiana Civil Code Article 2315 provides the basis for a cause of action in negligence by providing that "[e]very act whatever of man that causes damage to another obliges him by whose fault it happened to repair it." Louisiana courts have traditionally applied a duty-risk analysis to determine the existence of delictual liability. Siripanyo v. Allstate Indem. Co., 03-559 (La.App. 3 Cir. 12/23/03), 862 So.2d 1254, writ denied, 04-182 (La.3/19/04), 869 So.2d 860. "Under this analysis the plaintiff must prove that the conduct in question was the cause-in-fact of the resulting harm, the defendant owed a duty of care to the plaintiff, the requisite duty was breached by the defendant and the risk of harm was within the scope of protection afforded by the duty breached." Posecai v. Wal-Mart Stores, Inc., 99-1222, p. 4 (La.11/30/99), 752 So.2d 762, 765. Each of the preceding inquiries must be answered affirmatively in order for a plaintiff to recover on a negligence theory. Id. Mr. Barlow and USAgencies sought summary judgment based on their assertion that the circumstances of Mr. Henry's injuries were not within the scope of protection of Mr. Barlow's duty as a motorist to use reasonable care in the operation and control of his vehicle.

"Regardless if stated in terms of proximate cause, legal cause, or duty, the scope of the duty inquiry is ultimately a question of policy as to whether the particular risk falls within the scope of the duty." Roberts v. Benoit, 605 So.2d 1032, 1044 (La.1991). In Pardue v. AT & T Telephone Co., 01-762, p. 4 (La.App. 3 Cir. 10/31/01), 799 So.2d 710, 713, writ denied, 01-3167 (La.2/8/02), 808 So.2d 352, this court stated the following regarding the scope of protection inquiry:

As explained in Todd v....