Simon v. Southwest Louisiana Elec. Membership Corp.

• Decision Date: 20 October 1980
• Docket Number: Nos. 67311,67356,s. 67311
• Citation: 390 So.2d 1265
• Parties: Sandra Leblanc SIMON et al. v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al.
• Court: Louisiana Supreme Court

Page 1265

390 So.2d 1265

Sandra Leblanc SIMON et al. v. SOUTHWEST LOUISIANA ELECTRIC MEMBERSHIP CORPORATION et al.

Nos. 67311, 67356.

Supreme Court of Louisiana.

Oct. 20, 1980.

Rehearing Denied Dec. 15, 1980.

Oscar W. Boswell, II, Harrington & Boswell, Crowley, for plaintiff-applicant in No. 67311; for plaintiff-respondent in No. 67356.

Larry T. Richard, Cline, Miller, Richard & Miller, Rayne, for plaintiff-applicant in No. 67356 and for plaintiff-respondent in No. 67311.

Lawrence G. Pugh, Jr., Pugh & Craton, Crowley, J. J. Davidson, for defendants-respondents in both cases.

BLANCHE, Justice.

Plaintiffs in these two lawsuits are the wives and minor children of two Acadia Parish residents who were fatally electrocuted on June 8, 1975. Plaintiffs respectively brought suits in damages for the wrongful death and for the survival action of Marvin G. Vincent and Harold John Simon against Southwest Louisiana Electric Membership Corporation (SLEMCO), the owner of the electric lines which transmitted the fatal shocks, and its insurer, United States Fidelity & Guaranty Company. The electrocutions occurred on a lot in Pine Acres subdivision near Crowley, Louisiana when a drilling pipe came in contact with, or close proximity to, an uninsulated electrical line in the course of a water well drilling operation undertaken by family members and friends of lot owner, Michael Vincent. Marvin Vincent, a brother of Michael Vincent, was electrocuted during his participation in the removal of the drilling pipe from the well hole, and Harold John Simon died from electrical shocks he received when he attempted to rescue Marvin and other persons injured in the accident.

The two lawsuits brought by decedents' survivors were consolidated and tried before a jury in the Fifteenth Judicial District Court, Parish of Acadia. The jury returned a verdict for defendant in both instances, finding no liability on the part of SLEMCO for the deaths of Vincent and Simon. In reviewing that jury verdict, the Third Circuit Court of Appeal ruled that the verdict was not erroneous as a matter of law. 380 So.2d 1242. We affirm for the following reasons.

The undisputed facts reveal this chain of events: Michael Vincent planned to drill a water well on his land with the aid of family members and friends. The chosen drilling site proved to be approximately fifteen feet away from a point on the ground where a charged SLEMCO electrical line hung 25.1 to 26.7 feet above the ground. A few days prior to the actual drilling operation, SLEMCO employees were working near the proposed drilling site when they were informed by Percy Vincent, the father of the landowner, Michael Vincent, that they planned to drill a well there. The well had been "started", or marked, by broken ground and the SLEMCO employees were persuaded by Percy Vincent and his offer of $5.00 to drill down a few feet through the harder ground with a mechanized auger attached to the SLEMCO truck.

On Sunday, June 8, 1975, the actual completion of the drilling took place along with a Vincent family gathering and barbeque. The persons engaging in the drilling effort were Michael Vincent, his brother, Marvin (one of the decedents), their brother, Heulan, their father, Percy, Bufford Richard and Jerry Thompson. Harold John Simon, the other decedent, prepared the barbeque for the gathering. The parties employed a method of drilling more common in earlier times whereby lengths of 3/4-inch pipe were attached to a hand-turned auger as the auger dug deeper into the ground. These lengths of pipe and auger were periodically pulled out of the hole so that the accumulated mud and sand could be removed from around the auger. When the flexible 3/4-inch drilling pipe became lengthy, one of the men stood on a ladder to balance it as the entire pipe was pulled out of the hole, the auger cleaned, and the pipe fed back into the hole. It was a slow process, and approximately seven hours was spent before the desired depth was reached.

The accident occurred when the pipe was removed for the final time before plastic casing could be placed in the well hole. The pipe had, at this point, reached a length of about 42 feet. Heulan Vincent was balancing the pipe as it was removed from the hole. He stood on the ladder and grasped the pipe at approximately 18 feet above the ground. When the drilling pipe was completely removed from the hole, about 24 feet of it extended above his grip. This portion of the pipe apparently swayed over toward the nearby electrical lines as the men attempted to begin laying it down on the ground.

Electricity was transmitted through the drill pipe, fatally shocked Marvin Vincent, and injured other parties aiding in the drilling. When Harold John Simon saw what had happened, he attempted to remove the pipe with his hands from where it had fallen onto the bodies of some of the men. Upon his second attempt he, too, was fatally shocked.

There is a direct conflict in the testimony or inferences from the facts on the following key points. SLEMCO employees testified that they warned Percy Vincent, the father of the owner of the land where the well was drilled, that the selected well location was near the electric lines in question, that the lines were charged, and that it would be dangerous if any contact was made with these lines. They allegedly gave this warning when they were working near the well site a few days prior to the planned drilling and when they agreed with Percy Vincent to drill "a ways down into the ground" with the SLEMCO truck auger. Percy Vincent maintained that the SLEMCO employees gave him no such warning.

The other major area of dispute was as to the visibility, or the knowledge, of the drilling party's members of the existence of the electrical lines near the well site. All witnesses for the plaintiffs who participated in the drilling testified that they had never seen the wires and were unaware that they were there. The facts indicate that these lines were only approximately 15 feet from the well where the workers drilled for about 7 hours prior to the accident. Further, as related above, the drilling pipe was periodically removed from the hole and balanced in the air by a person grasping the pipe 18 feet above the ground on a ladder. The participants in the drilling operation would, therefore, have cause to frequently look upward in the course of their efforts. Although Percy Vincent was one of the drillers who testified he did not know there were power lines near the well site, SLEMCO employees testified they informed him of the existence of these lines. Finally, a photograph of the scene of the accident introduced in evidence by the defense depicts the electrical lines. These lines were slightly obscured by trees, but appear to be visible to even a casual observer working nearby.

We recognize that electric companies who utilize and maintain high power lines are required to exercise the utmost care to reduce hazards to life as far as is practicable. Nessmith v. Central La. Electric Co., 257 So.2d 744 (La.App.3d Cir. 1972), writ den., 259 So.2d 921, 922 (La.1972). If it should be reasonably anticipated that persons may come into contact with electric lines, the operator of those lines is required to insulate them, or to give adequate warning of the danger, or to take other proper and reasonable precautions to prevent injury. Nessmith, supra. However, an electric company is not legally bound to safeguard against occurrences that cannot be reasonably expected or contemplated. Bordelon v. Continental Casualty Co., 229 So.2d 761 (La.App.3d Cir. 1969), writ den., 231 So.2d 396 (1970). We agree with the court of appeal that operators of power lines are not required to anticipate every possible accident which may occur and are not the insurers of safety of persons moving around power lines in the course of everyday living.

The power line in question was 26.7 feet above the ground at the point of contact with the drilling pipe, a height of 11.7 feet in excess of the requirements of the National Bureau of Standards Safety Rules for the Installation and Maintenance of Electrical Transmission Lines. Compliance with these safety standards does not, per se, relieve SLEMCO from negligence, and SLEMCO must take additional steps to protect persons from injury due to contact with power lines where the surface below the lines is used for reasonably foreseeable purposes. McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.1978). In 1940, when wells were more commonly drilled by the method utilized in the case at hand, the Second Circuit Court of Appeal was confronted with a factual situation similar to the instant case. Under the facts of Webb v. La. Power & Light Co., 199 So. 451 (La.App.1940), the plaintiff's husband and friends had removed a well pipe from a well hole and contacted an electrical line 24 feet above the ground...