Linnear v. Center. Energy Entex/rel. Ener.

• Decision Date: 04 August 2006
• Docket Number: No. 41,171-CA.,41,171-CA.
• Citation: 945 So.2d 1
• Parties: Dronzy LINNEAR and Charles Linnear, Plaintiffs-Appellants v. CENTERPOINT ENERGY ENTEX/RELIANT ENERGY and Insurer, Jointly and Insolido, Defendants-Appellees.
• Court: Court of Appeal of Louisiana — District of US

Page 1

945 So.2d 1

Dronzy LINNEAR and Charles Linnear, Plaintiffs-Appellants v. CENTERPOINT ENERGY ENTEX/RELIANT ENERGY and Insurer, Jointly and Insolido, Defendants-Appellees.

No. 41,171-CA.

Court of Appeal of Louisiana, Second Circuit.

August 4, 2006.

Rehearing Denied November 27, 2006.

Opinion Dissenting From Denial of Rehearing November 27, 2006.

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Davis Law Office by: S.P. Davis, Sr., for Appellant.

Barham & Warner by: Henry N. Bellamy, Shreveport, for Appellee.

Before STEWART, MOORE and LOLLEY, JJ.

STEWART, J.

The plaintiffs, Dronzy and Charles Linnear, sued for damages after Mrs. Linnear fell in her yard in an area where the defendant, CenterPoint Energy Arkla ("CenterPoint"), had recently placed a new gas line. The Linnears alleged that CenterPoint's failure to restore the property to its pre-repair condition caused the accident. A jury found no fault on the part of CenterPoint, and the trial court denied motions for a new trial and a judgment notwithstanding the verdict ("JNOV"). The Linnears appealed. Finding legal error in the trial court's failure to include an instruction on res ipsa loquitur in the charge to the jury and finding liability established by application of that doctrine, we reverse the trial court's judgment, award damages, and render judgment in favor of appellants.

FACTS

On July 8, 2002, the Linnears noticed a gas leak at their home. CenterPoint dispatched a crew to investigate.¹ The crew located the leak, turned off the gas, and placed a temporary line to maintain service at the residence. CenterPoint's crew returned to the Linnears' home a couple of days later to install a new gas line measuring 80 to 90 feet in length and running from the meter in the back of the Linnears' house to the street in the front of the house. The crew dug a trench measuring 4 inches wide and 18 inches deep for the new gas line. Part of the trench ran parallel to the Linnears' driveway, with about two or three feet of distance between it and the trench. The Linnears used the area alongside their driveway as a path for walking to and from their vehicles.

After digging the trench and placing the line in it, the crew backfilled the trench with dirt. According to testimony, the crew added up to 4 inches of dirt at a time and packed it down by stepping on it. Once the trench was full, they used a 30-pound steel tamper to further pack the ground. A backhoe was also driven over some areas. The crew leader, Herbert Randy Burkins, tested the compaction of the dirt by inserting a screwdriver into the ground. Burkins also did a visual inspection of the area. The crew did not replace sod or asphalt in areas where the trench had been dug.

The accident at issue occurred on July 16, 2002. It had rained sometime that night or during the early morning hours prior to Mr. Linnear leaving for work at 6:30 a.m. Around mid-morning, Mrs. Linnear prepared to run an errand to her church with her granddaughter. Mrs. Linnear walked to her vehicle to place some items in the backseat on the driver's side. As she stepped back around the open rear door to return to her porch to get her granddaughter, Mrs. Linnear's right foot sank into the ground, and she fell forward. She felt a sharp pain in her lower back. She used the door handle on her vehicle to pull herself up and was able to continue on her errand. She called Mr. Linnear to tell him about the accident. He returned home around noon to find Mrs. Linnear in pain. He photographed the area of the fall where Mrs. Linnear claimed that her right leg sunk into the ground up to her knee.

Mrs. Linnear sought treatment for her injury and was diagnosed as having a herniated disk. She underwent surgery in December 2003. However, the injury continues to cause her pain for which she remains in treatment.

The Linnears sued CenterPoint for damages alleging that the crew's failure to restore their property to its pre-repair condition by properly backfilling the trench and replacing sod caused Mrs. Linnear's accident. According to their trial testimony, the Linnears had lived at their residence for 23 years with no accidents occurring in their yard. They also testified that after Mrs. Linnear's accident, CenterPoint sent the crew to restore their property by replacing the sod and asphalt and spreading dirt on the ground. No further accidents happened after the restoration of their property.

The record shows that the trial court did not include an instruction on res ipsa loquitur as requested by the Linnears. Their counsel objected and proffered the rejected instruction into the record. The jury rejected the Linnears' claim for damages by a vote of 10 to 2, finding no liability on the part of CenterPoint.

The Linnears filed motions for a new trial and JNOV. They argued that the verdict was clearly contrary to the law and the evidence. They specifically contended that the jury disregarded their undisputed evidence and improperly credited the testimony of the crew members, whose testimony contained inconsistencies and should have been considered unreliable. The trial court denied both motions. In its oral reasons, the trial court found that the photographic evidence belied Mrs. Linnear's claim that she stepped into a sinkhole up to her knee. The trial court found that the photograph depicted only a footprint in a muddy area and that the evidence showed only that Mrs. Linnear slipped in the mud on a rainy day. The trial court concluded there was no proof of how CenterPoint was responsible for the accident.

DISCUSSION

In this appeal, the Linnears argue that the jury was manifestly erroneous in finding no fault on the part of CenterPoint and that the trial court erred in not granting either the JNOV or a new trial. However, our review of the record convinces us that legal error impeded the fact-finding process as will be explained.

The manifest error standard applicable on appellate review provides that a jury's verdict cannot be reversed unless the court, after reviewing the record in its entirety, finds there to be no reasonable factual basis for the jury's findings and determines them to be manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). However, where legal error interdicts the fact-finding process, the manifest error standard no longer applies. Ferrell v. Fireman's Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In such instances, if the record is complete, the appellate court is charged to make its own independent de novo review of the record. Id.

Although the Linnears did not assign as error the failure of the trial court to instruct the jury on res ipsa loquitur, this court is charged to render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The article empowers us to do justice on the record regardless of whether a particular legal point or theory was made, argued, or passed upon by the lower court. Rachal v. Rachal, 35,074 (La.App. 2d Cir.10/12/01), 795 So.2d 1286.

The Linnears' counsel had requested inclusion of the following jury instruction by the trial court:

Res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant's negligence, more probably than not caused the injury. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

The trial court did not include the instruction. Counsel objected and tendered the instruction as a proffer in the record, thereby preserving the issue for review.

Adequate jury instructions are those which fairly and reasonably address the issues and provide correct principles of law for the jury to apply to the issues. Smart v. Kansas City Southern R.R., 36,404 (La.App. 2d Cir.11/6/02), 830 So.2d 581; Kennedy v. Thomas, 34,530 (La.App. 2d Cir.4/4/01), 784 So.2d 692. The trial court is not required to give the precise instruction submitted by a party. The court need only give instructions that properly reflect the applicable law and adequately convey the issues. Smart, supra; Kennedy, supra. The sufficiency of the jury charge is determined by reading all the charges together as a whole. Luman v. Highlands Ins. Co., 25,445 (La.App. 2d Cir.2/23/94), 632 So.2d 910. Instructions that are misleading or confusing, as well as those that omit an essential legal principle, do not adequately set forth the law and may constitute reversible error. Smart, supra; Kennedy, supra.

Before overturning a jury verdict on the basis of an erroneous jury instruction, the appellate court must determine whether the jury was misled to such an extent as to have been prevented from doing justice. Smart, supra. The reviewing court must consider the gravity or degree of the error, the instructions as a whole, and the circumstances of the case in determining that a de novo review is warranted. Kennedy, supra. Appellate courts exercise great restraint in overturning a jury verdict on the basis of an erroneous instruction. Id. We may not ignore the manifest error standard unless the instructions were so incorrect or inadequate as to have precluded the jury from reaching a verdict based on the law and the facts. Id.

In its instructions to the jury, the trial court explained that the plaintiffs have the burden of proving their case by a preponderance of the evidence and instructed the jury to deliberate without being swayed by sympathy, prejudice, or passion. The trial court referred to La. C.C. arts 2315 and 2316 and defined negligence as "conduct which falls below the standard established by law for the protection of others and one's self against an unreasonable risk of harm." The court explained that liability is based on fault as determined from the facts and circumstances of the case. The court then went on to address the law applicable to proving damages. Notably, the court did not address or...