Kent v. Gulf States Utilities Co.

Decision Date30 April 1982
Docket NumberNo. 80-C-2453,80-C-2453
Citation418 So.2d 493
PartiesMilton KENT, Jr., As Curator of the Estate of his Interdicted Son, Keith Kent v. GULF STATES UTILITIES COMPANY and the State of Louisiana Through the Department of Highways.
CourtLouisiana Supreme Court

Charles R. Moore, Edward J. Walters, Jr., and Keith B. Nordyke, of Moore & Walters, Baton Rouge, for plaintiff-applicant.

Frank W. Middleton, Jr., and W. Luther Wilson, of Taylor, Porter, Brooks & Phillips, William J. Doran, Jr., Robert J. Jones, Marshall W. Wroten, and Philip K. Jones, of Doran & Kivett, Baton Rouge, for defendants-respondents.

LEMMON, Justice.

This case of personal injury by contact with electrical lines involves an analysis of the respective duties and conduct of the electric utility company, of the executive officers of the construction company which was building a road that crossed under the electric lines, of the executive officers of the State Department of Highways, and of the electrocution victim who was a construction worker on the project.

The accident occurred when Keith Kent, an employee of Barber Brothers Contracting Company, was working on a highway department project to widen a roadway in the Baton Rouge area. The 30-foot aluminum pole he was using to texture the surface of the highway came in contact with a high voltage distribution line owned by Gulf States Utilities. Named as original defendants were Gulf States Utilities Company and the State of Louisiana Department of Highways. After the trial court determined plaintiff's exclusive remedy against the Department was for workmen's compensation benefits and dismissed that defendant, plaintiff named the Department's project engineer, W. L. Landon, Jr., and their project inspector, Killiam H. Kupper, as individual defendants. Also named defendants in their individual capacities were Barber's two executive officers.

After presentation of the evidence and closing arguments to the jury, the Barber defendants reached a settlement with plaintiff. The trial court's charge to the jury included instructions on the liability of the Barber defendants, and the jury returned a verdict in favor of plaintiff against Gulf States Utilities and Barber's two officers for $3,000,000. The trial court entered judgment following the verdict against Gulf States Utilities for $1,000,000, plus legal interest and one-third of the costs, as its share of the judgment. All other defendants were dismissed.

Plaintiff appealed, seeking reversal of the dismissal of Landon and Kupper and of the trial court's reduction of the judgment by two-thirds. 1 Defendant Gulf States also appealed, reurging the defenses of contributory negligence and/or assumption of risk. The court of appeal held that Keith Kent's conduct barred his recovery and reversed the judgment against Gulf States, while affirming the dismissal of all other defendants. 398 So.2d 560. We granted plaintiff's application for certiorari. 399 So.2d 585.

Facts

Keith Kent began his employment with Barber shortly before the accident. At the time of his injury the 18-year old employee was making antihydroplaning grooves in the surface of the highway by pulling a metal rake, approximately five feet wide, across the surface of the freshly poured concrete.

The portion of the highway then under construction ran under three high voltage distribution lines, which intersected the highway at an angle. The uninsulated lines, located 25 feet 8 inches above the surface of the ground and 24 feet 8 inches above the surface of the slab, were clearly visible, and everyone on the construction site, including Keith Kent, was aware of them.

The metal rake used by the workers to create grooves had an aluminum handle, which had been extended to a length of 30 feet by screwing together several six-foot sections. That length was necessary because of the double width of the concrete roadway (two 13-foot widths) under construction. 2

On the day of the accident Kent and his co-worker, David Jenkins, were using a walk bench bridge (a structure on wheels which straddled the slab) to transfer the rake from one side of the poured concrete to the other. The workers, after pulling the rake across the concrete, used the bench to slide the rake back across the slab to make the next pull. However, about two hours before the accident, a crew of Barber's concrete finishers needed the bench, and Kent and Jenkins relinquished it. They first tried to simply push the rake across and pull it back, but that procedure caused gouging. They then began using the "flip-flop" method to transfer the rake back and forth across the slab. 3 In using this method Kent stood on one side of the slab and pulled the rake, creating the grooves across the concrete. He then returned the rake by holding onto the rake head, raising the handle in the air and letting the rake fall across the slab, where it was caught by Jenkins. Jenkins then pulled the rake across the surface and returned it to Kent in a similar manner.

Kent and Jenkins used this method until they came near the overhead lines. To avoid contact, they devised a method to walk away from the lines, to flip the rake, and then to return under the lines to rake across the surface. Kent and Jenkins had used this method without incident to work underneath and beyond the lines approximately eight or ten feet when the accident occurred.

None of the witnesses who testified at trial actually saw the rake handle contact the wire. David Jenkins testified that he and Kent had completed two pulls after crossing under the wires and that Kent was standing eight to ten feet from the point the wires intersected the highway at an angle. Suddenly "he [Kent] just went up in the air with it [the rake handle]". Jenkins described the handle as limber and wobbly.

Charles Smith, a cement finisher, testified that he walked over to Kent just before the accident to warn him of the lines. He stated that when he tapped Kent on the shoulder and pointed out the lines, Kent indicated he was aware of them and joked with Smith that the wires would get Jenkins, but not him. Smith testified he turned and walked about 20 feet when he heard the electrical boom caused by the handle's contact with the wire, and then he saw Kent slumped over motionless next to the slab.

It is therefore evident from the testimony that the accident occurred when Kent, while standing very near the overhead lines, raised the rake handle so that it made contact with one of the lines.

Liability of Gulf States

Plaintiff contends that Gulf States was negligent in failing to take reasonable measures to protect against the foreseeable risk that a person, in contact with the ground or with a grounded object, would come in contact with its wires in the construction area. Plaintiff further urges that we hold Gulf States under some form of absolute or strict liability, either as the custodian of a thing under C.C. Art. 2317 or as an enterpriser engaged in an ultrahazardous activity.

C.C. Art. 2315 imposes delictual liability on a person whose fault causes damage to another. Since "fault" is a broader and more comprehensive term than "negligence", the codal scheme imposes responsibility on a person not only when his negligence causes damage, but also when the person has a legal relationship with a person, a thing, or an activity which causes damage. Langlois v. Allied Chemical Corp., 258 La. 1067, 249 So.2d 133 (1971). Liability is strict in the sense that it does not depend upon proof of personal negligence. 4

C.C. Art. 2317 provides:

"We are responsible, not only for the damages occasioned by our own act, but for that which is caused by the act of persons for whom we are answerable, or of the things which we have in our custody. This, however, is to be understood with the following modifications."

In Loescher v. Parr, 324 So.2d 441, 444 (La.1975), this court interpreted Art. 2317 as imposing liability on the owner of a diseased tree which fell onto a neighbor's automobile, although the diseased condition of the tree was not apparent and the owner therefore could not be deemed negligent for failing to discover and correct the condition or to protect others from the risk resulting from that defective condition. The court held that the tree's owner-guardian was liable for his fault in maintaining a defective tree and not preventing the thing from causing injury, unless he proved that the damage was caused by the fault of the victim, by the fault of a third person, or by an irresistible force.

Because the term "thing" encompasses a virtually unlimited range of subject matter, the Loescher decision has since been cited by innumerable litigants seeking to avoid the necessity of proving personal negligence in tort cases. The distinction between negligence cases and strict liability cases (such as Loescher) has largely been either misunderstood or completely disregarded. It is therefore appropriate for this court, in determining the applicability of Art. 2317, to review first the distinguishing effect of applying strict liability under that article.

In a typical negligence case against the owner of a thing (such as a tree) which is actively involved in the causation of injury, the claimant must prove that something about the thing created an unreasonable risk of injury that resulted in the damage, that the owner knew or should have known of that risk, and that the owner nevertheless failed to render the thing safe or to take adequate steps to prevent the damage caused by the thing. Under traditional negligence concepts, the knowledge (actual or constructive) gives rise to the duty to take reasonable steps to protect against injurious consequences resulting from the risk, and no responsibility is placed on the owner who acted reasonably but nevertheless failed to discover that the thing presented an unreasonable risk of harm.

In a strict liability case against the same...

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