Linnear v. Centerpoint Energy Entex/Reliant

• Decision Date: 05 September 2007
• Docket Number: No. 06-C-3030.,06-C-3030.
• Citation: Linnear v. Centerpoint Energy Entex/Reliant, 966 So.2d 36 (La. 2007)
• Parties: Dronzy LINNEAR and Charles Linnear v. CENTERPOINT ENERGY ENTEX/RELIANT ENERGY and Insurer Jointly and in Solido.
• Court: Louisiana Supreme Court

966 So.2d 36

Dronzy LINNEAR and Charles Linnear v. CENTERPOINT ENERGY ENTEX/RELIANT ENERGY and Insurer Jointly and in Solido.

No. 06-C-3030.

Supreme Court of Louisiana.

September 5, 2007.

Rehearing Denied November 2, 2007.

Phelps Dunbar, Harry Alston Johnson, III, Baton Rouge, Barham, Warner & Bellamy, Henry Nathan Bellamy, Shreveport, for applicant.

Davis Law Firm, S. P. Davis, for respondent.

VICTORY, J.

We granted this writ application to determine whether the court of appeal properly applied the doctrine of res ipsa loquitur to this negligence case. After reviewing the record and the applicable law, we find that the doctrine does not apply. Accordingly, we reverse the judgment of the court of appeal and reinstate the jury verdict and trial court judgment in favor of the defendant.

FACTS AND PROCEDURAL HISTORY

Plaintiffs, Charles and Dronzy Linnear, allege that on the morning of July 16, 2002, Mrs. Linnear stepped into a sinkhole next to her driveway as she was placing items in the backseat of her car. The Linnears sued CenterPoint Energy Entex/Reliant Energy¹ ("CenterPoint") alleging that Mrs. Linnear's fall was caused by CenterPoint's negligence. Eleven days before the accident, CenterPoint was dispatched to investigate a gas leak at the Linnear residence. After locating the leak, turning off the gas, and installing a temporary line to maintain service, CenterPoint returned a few days later to install a new gas line. The crew dug a trench four inches wide and eighteen inches deep running parallel to the Linnear's driveway, with approximately two to three feet between the trench and the driveway. They installed an 80 to 90 foot gas line from the meter located in the back of the house to the street in the front of the house. The Linnears used the area alongside the driveway as a path for walking to and from their vehicles and there is no dispute that the accident occurred in the general area where the trench was dug. The Linnears alleged that CenterPoint negligently filled the trench and failed to resod the area, resulting in the sinkhole that caused Mrs. Linnear to fall.

At trial, Mrs. Linnear testified that in the early morning hours of July 19 it had rained but was no longer raining at 9:30 a.m., the time of the accident. She testified that she and her three-year-old granddaughter were preparing to take some items to church. While her granddaughter stayed on the porch, Mrs. Linnear walked with the items to the car and placed them in the backseat behind the driver's seat. She testified that when she stepped backwards from the open rear door, her right foot sank into a sinkhole and that her right leg sank into the ground up to her knee. She fell forwards and felt a sharp pain in her back. She was able to pull herself up using the door handle and then got her granddaughter from the front porch and continued on her errand. She was later diagnosed with a herniated disk and underwent surgery in December of 2003. She testified that the area where the accident occurred was wet because it had rained that morning but it was not muddy and appeared stable.

Mr. Linnear testified that Mrs. Linnear called him after the accident and he returned home at around 11:30 a.m. to find her in pain. He took photographs of the accident scene, one of which showed a muddy area with an indentation of a footprint in the mud. The Linnears testified that it had rained early in the morning of July 19, was not raining at the time of the accident, but had rained again between the time of the accident and the time the photograph was taken. He testified that they had lived in the house for 23 years and used that area of the yard often and no one had ever fallen in that area.

Workers for CenterPoint testified as to the work done at the Linnear's residence. Herbert Burkins, the crew leader, testified the trench was back-filled by adding up to four inches of dirt at a time and stepping on the area using body weight after each addition to compact the dirt. The crew then took turns using a 30-pound steel tamper to tamp down and harden the dirt. A backhoe was then used over some of the area to further harden the dirt. After a visual check, Burkins inserted a screwdriver into the ground to check the compaction and the entire area was fully compacted. He testified that the crew did not use any extra dirt in the trench, nor did they add any sod on top. Thomas Salter gave testimony consistent with Burkins regarding the methods of compaction used. Specifically, he testified that he weighed 230 pounds and that he personally compacted the soil by putting two to three inches of soil in the trench and then compacting it as follows: "One foot is placed inside the trench, the other foot on the actual shift, which would be the ground level, and you actually just walk in there, almost like a bunny hop, and push your weight up and down on the actual pipe itself to compact the soil." He repeated the process of adding soil and walking over it until the soil was level. Once the soil was level, they used a six by six inch 30-pound steel tamper to manually tamp down the soil, then "we take the piece of equipment, run it over with the tires, and — to make sure that the ground is level and compact." He testified that based on the way they compacted the trench, it was not possible that someone Mrs. Linnear's size could step in the trench and sink to a point just below her knee. In addition, he testified that he had seen sinkholes before and they appear in a circular pattern, not as depicted in the photograph showing an imprint of Mrs. Linnear's footprint as alleged by plaintiffs. He further testified that the area alongside the driveway where the accident occurred was not covered in grass before they dug the trench, and similarly they did not place any sod over that area afterwards. He testified that the yard was in good condition after they completed the job and that the soil covering the trench was sturdy and uniform. Salter testified that he had done hundreds of jobs and they were all done this same way. After the accident, Salter testified, he returned to the property and distributed about half a wheelbarrow of dirt throughout the area and sodded the area as requested. He did not recall filling any holes in the area.

The photographs that Mr. Linnear had taken after the accident were also introduced into evidence. The photographs depict an indentation of a footprint in a muddy area and a garden hose in the area which was not there when the trench was filled. Based on these photographs, the defense argued that Mrs. Linnear simply stepped into an open and obvious muddy area and slipped; had she stepped into a sink hole, the footprint in the mud would have gone down much deeper than depicted in the photograph. The defense also argued that the plaintiffs failed to bring in expert testimony to prove their case by way of soil borings.

Prior to the case being sent to the jury, the plaintiffs requested a jury instruction on the doctrine of res ipsa loquitur, which the trial court rejected. After a three-day jury trial, the jury returned a verdict in favor of CenterPoint, giving a negative answer to the first question on the jury verdict form, which was "Does the preponderance of the evidence establish that CenterPoint Energy or any of its employees were negligent and that their negligence caused or contributed to the accident on July 16, 2002?"

Plaintiffs filed post-trial motions for a judgment notwithstanding the verdict and for a new trial, claiming the verdict was contrary to the law and the evidence because CenterPoint's witnesses were not credible and the Linnears were credible. The trial judge denied the motions based on the following reasoning:

The Court is unable to grant the motion for new trial or JNOV. The photographic evidence that was introduced, in the Court's opinion, belied the testimony of Ms. Linnear. She maintained that she stepped into a sink hole [sic] of some sort, but the photographs just show an area, easily observable to everybody, where there was not grass, and it was muddy, and the footprint was photographed by her husband, in my impression, certainly the same day, but within a couple of hours of when it happened. And it simply does not show any kind of sink hole [sic]. It simply shows a footprint in the mud where the lady slipped in the mud.

And so I'm unable to believe that the jury was led astray, and if I substituted my judgment it would be exactly the same as the jury's. She simply — the evidence shows — the photographic evidence that the plaintiff's [sic] took, simply show a muddy footprint, no sink hole [sic], no anything like that, just slipped in the mud on a rainy day, and how [CenterPoint] is responsible for that has not been proven in this case.

The Linnears appealed to the Second Circuit, and when the record was lodged, six of the nine members of that court recused themselves.² On appeal, the court of appeal concluded that the trial judge's refusal to give a res ipsa loquitur instruction constituted legal error which "impeded" the fact-finding process of the jury. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-41171 (La.App. 2 Cir. 8/4/06), 945 So.2d 1. Accordingly, the court conducted a de novo review of the record and found liability on the part of CenterPoint, awarding a judgment in the amount of $273,032.74. CenterPoint filed a petition for rehearing and two ad hoc judges were appointed to consider the rehearing application, along with the original three-judge panel. The application was denied 3-2, with the two ad hoc judges filing a lengthy dissent. We granted CenterPoint's writ application to consider whether the court of appeal erred in finding that the doctrine of res ipsa loquitur applied to this case. Linnear v. CenterPoint Energy Entex/Reliant Energy, 06-C-3030 (La.3/9/07), 949 So.2d 429.³

DISCUSSION

Analysis of the doctrine of res ipsa loquitur reveals that the court of appeal erred in...