Price v. Mitchell Const. Co., Inc.
| Citation | 482 So.2d 869 |
| Decision Date | 22 January 1986 |
| Docket Number | No. 17427-CA,17427-CA |
| Parties | Milton Wayne PRICE, Plaintiff-Appellant, v. MITCHELL CONSTRUCTION COMPANY, INC., et al., Defendants-Appellees. 482 So.2d 869 |
| Court | Court of Appeal of Louisiana (US) |
Kirkpatrick, Keyser & Kirkpatrick by Gary L. Keyser, Baton Rouge, and Schober & Brabham by John L. Schober, Jr., Shreveport, for plaintiff-appellant.
Bodenheimer, Jones, Klotz & Simmons by G.M. Bodenheimer, Shreveport, for defendants-appellees Robert Mitchell, III, Scott Oliphint and Zurich Ins. Co.
Wilkinson, Carmody & Gilliam by Arthur R. Carmody, Jr. and Bobby S. Gilliam, Shreveport, for defendant-appellee Southwestern Elec. Power Co.
Before JASPER E. JONES, FRED W. JONES, Jr. and NORRIS, JJ.
Milton W. Price, ironworker for Mitchell Construction Company, Inc., was injured as the result of receiving an electrical shock during the course of an on-the-job accident. Price filed a tort action against Mitchell and Oliphint, executive officers of his corporate employer; Zurich Insurance Company ("Zurich"), their liability insurance carrier; and Southwestern Electric Power Company ("SWEPCO").
The trial was bifurcated, with the issues of liability and quantum taken up separately. On the first issue the defendants were found liable to the plaintiff, who was determined to be free of contributory negligence. With reference to quantum, Price was awarded $75,000 in general damages; $2,789 in lost wages; $6,414.48 in medical expenses; and $3,000 for future medical expenses.
Zurich, which also carried the worker's compensation insurance for plaintiff's employer and had paid Price benefits thereunder, as an intervenor in the suit to recover sums paid, was awarded $23,926.33 out of the judgment in favor of plaintiff.
All parties to the action appealed. Plaintiff asks for a substantial increase in his award and contends that the judgment in favor of the intervenor, Zurich, is incorrect because it ordered reimbursement of sums plaintiff did not receive in his judgment. Defendants contest the issue of liability.
For the reasons hereinafter explained we reduce the award of the trial court to the intervenor, Zurich, but otherwise affirm the judgment.
On March 29, 1974 Price was engaged in his employment as an ironworker for Mitchell Construction Company, Inc. in the construction of a large (over 200 feet long) metal building on Greenwood Road in Shreveport. His duties included carrying sheets of roofing steel, measuring about three feet wide and from 20 to 30 feet long, from a site on top of the building where the sheets were stacked to the west edge of the roof where the sheets were to be installed. A series of electrical lines belonging to SWEPCO ran along the western edge of the building under construction. The lines had been installed the year before when a mini-storage building was constructed on the adjacent lot. They ran 7.9 feet from the west side of the building on which Price was working and were 3.4 feet above the top of that structure.
As Price and a co-worker were in the process of carrying one of the sheets of steel for placement, it came into such proximity to the SWEPCO lines that Price received an electrical shock, causing the injuries for which he has sued.
Electric transmission companies which maintain high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable. However, an electric utility is not required to guard against situations which cannot reasonably be expected or contemplated. Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983).
Consequently, critical to the issue of liability is whether, under the circumstances of this particular case, the defendants should have foreseen the likelihood of the accident which occurred. In Simon v. Southwest La. Elec. Membership Corp., 390 So.2d 1265 (La.1980), the court found that the defendant had done everything reasonably expected to avoid an accident. Its lines were 11.7 feet higher than required by the governing Code and it had no notice of the drilling activity which gave rise to the accident.
We held in Thomas v. Northeast La. Power Co-op., Inc., 469 So.2d 1054 (La.App.2d Cir.1985) that a utility company was not liable for injuries sustained when a loading crane touched a live power line which ran 27 feet above the ground (Code required only 20.75 feet) and there was no prior knowledge of activity near the wire.
A different result was reached in Hebert, supra. There, in a situation quite similar to the case at bar, the plaintiff was engaged in moving pieces of metal 20 feet in length when he inadvertently touched a power line positioned 26 feet 4 inches above the ground, with a horizontal and vertical clearance of 3.45 feet and 9.5 feet respectively from the nearest part of the building under construction. The defendant contended that the lines were insulated by isolation, because they were not readily accessible to the public. In response, the court stated:
"... the risk is different for one assigned to work fifteen feet above the ground and atop a structure which is within ten or eleven feet of the power line, than for ground level workers who must use extraordinary means to contact the overhead electrical lines."
The court concluded that the defendant utility company owed the plaintiff a duty to protect him from the risk of harm from electrocution and it breached that duty.
In this case it was shown that a temporary electrical service connection for the building under construction was made in November 1973. It was SWEPCO's policy to have an engineering employee investigate the application in order to determine the future needs of the applicant. Further a SWEPCO employee read the meter on temporary service connections monthly, just as with meters of regular customers. Therefore, SWEPCO either knew or should have known of circumstances surrounding the construction on this large steel building, including knowledge of the limited clearance from the roof of the building to the existing SWEPCO electric lines. Concluding that because of their proximity these power lines posed a danger to workmen handling sheets of steel on top of the structure, and determining that SWEPCO knew or should have known of this danger, we find that SWEPCO should have foreseen the likelihood of the occurrence of this accident and taken steps to protect plaintiff by either de-energizing the lines or guarding them with some type of temporary rubber insulation. By failing to do so, SWEPCO breached its duty to plaintiff and was correctly held liable for his injuries.
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