Weaver v. Valley Elec. Membership Corp.

• Decision Date: 31 March 1993
• Docket Number: No. 24261-CA,24261-CA
• Citation: 615 So.2d 1375
• Parties: James D. WEAVER, Plaintiff-Appellant, v. VALLEY ELECTRIC MEMBERSHIP CORP., Defendant-Appellee.
• Court: Court of Appeal of Louisiana — District of US

Page 1375

615 So.2d 1375

James D. WEAVER, Plaintiff-Appellant, v. VALLEY ELECTRIC MEMBERSHIP CORP., Defendant-Appellee.

No. 24261-CA.

Court of Appeal of Louisiana Second Circuit.

March 31, 1993.

Charles W. Seaman, Natchitoches, Perry Tanner, Livingston, TX, for plaintiff-appellant James Weaver.

Hicks & Hubley by Michael S. Hubley, Shreveport, Stan Nix, Kingwood, TX, for intervenor Commercial Union Ins. Co.

Lunn, Irion, Johnson, Salley & Carlisle by Brian D. Smith, Shreveport, for defendant-appellee.

Before MARVIN, C.J., and NORRIS, LINDSAY, VICTORY and STEWART, JJ.

MARVIN, Chief Judge.

As mandated by LSA-Const. Art. 5, Sec. 8 B, this appeal was submitted to a five-judge panel on reargument after one judge of the three-judge panel that heard the appeal dissented to the reversal of the judgment of the trial court.

The appeal is by a farm laborer, James Weaver, who sustained electrical shock injuries in the course and scope of his employment, and by his employer's w.c. insurer, who paid his medical expenses and weekly compensation. After jury trial, the judgment rejected their demands against the power company whose lower transmission line snagged or hung on the top of a cotton picker being driven on a public road. Weaver was injured while attempting to release the wire which hung lower than minimum height suggested by industry safety standards.

The judgment was based on the jury's answers to interrogatories which first declared that the defendant power company, VEMCO, was negligent, but secondly and on the other hand, that VEMCO's negligence was not a "legal cause" of the accident. The trial court denied JNOV and a new trial.

We reverse and render judgment, allocating fault and awarding damages.

The C.C. Arts. 2315-16 standard of care of the transmitter of high voltage electricity is concisely stated in F. Stone, 12 Louisiana Civil Law Treatise--Tort Doctrine, Sec. 395 (1977). The standard is jurisprudentially derived from Dobson v. Louisiana Power & Light Co., 567 So.2d 569 (La.1990); Levi v. S.W. La. Elec. Membership Co-op., 542 So.2d 1081 (La.1989); Hebert v. Gulf States Utilities Co., 426 So.2d 111 (La.1983); Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982). See also Horton v. Valley Electric Membership Corporation, 461 So.2d 375 (La.App.2d Cir.1984); Simon v. Southwest Louisiana Electric Membership Corp., 390 So.2d 1265 (La.1980).

THE JURY'S CONCLUSIONS

The picker was 15'9" high, a legally permissible height under LRS 32:385 and a height lower than the 16-foot minimum height suggested by The National Electric Safety Code in effect when the 1988 accident occurred.

In this area of DeSoto Parish, VEMCO's line consisted of two wires, the lower being the "neutral" conductor which was about two feet below the upper high voltage conductor. Weaver was injured when he somehow contacted or grasped the upper wire after climbing atop the picker and attempting to release the lower wire that had snagged the picker.

The record and the law support the jury's conclusion that VEMCO was negligent in that its failure to maintain its lines at a reasonably safe height breached a legal duty owed to Weaver and caused his injuries. Negligence, by definition, is conduct which breaches a legal duty owed by a defendant to a plaintiff and causes in fact injury to plaintiff. See F. Stone, supra.

The jury's second conclusion that VEMCO's negligence was not the legal "cause" of the accident is erroneous and directly contrary to its first conclusion. The second conclusion implies either that VEMCO did not breach a legal duty it owed to Weaver that caused him injury or that VEMCO's negligence is somehow "excused," perhaps by Weaver's "concurrent" or "later" negligence. The record does not allow the conclusion that Weaver intentionally grabbed the upper wire while attempting to release the snagged wire, notwithstanding this suggestion by VEMCO's expert.

Having protected against the risk of contact with VEMCO transmission lines by escorting the 15'9" high cotton picker from Natchitoches to the DeSoto Parish cotton plantation a month before the cotton picking season began, VEMCO knew that the picker would be operating beneath VEMCO lines on that plantation. VEMCO's obligation to maintain its lines above the height of the picker on that plantation is easily associated with the particular and reasonably foreseeable risk that a laborer on that plantation would suffer electrical injury by climbing atop the picker and attempting, however imprudently, to release a low-hanging transmission line that snagged or hung on the picker. Dobson, supra.

Disassociating VEMCO's obligation from that particular and foreseeable risk would require us to ignore the holdings of the cases cited supra and to conclude that VEMCO's failure to meet its legal obligation to maintain the wire at a reasonably safe height under the circumstances did not constitute negligence. See Malone, Ruminations on Cause-In-Fact, 9 Stan.L.Rev. 60 (1956); Robertson, Reason Versus Rule In Louisiana Tort Law: Dialogues On Hill v. Lundin & Associates, Inc., 34 La.L.Rev. 1 (1973); Stone, supra.

Applying negligence standards, we analyze VEMCO's conduct and the legal standard of care to which VEMCO is subjected.

OTHER FACTS

The accident occurred about 2:00 p.m. on September 9, 1988, on a rural two-lane paved public road in DeSoto Parish that was traversed overhead by VEMCO's transmission line. Weaver, then 40 years old, had been employed for about a year as a laborer on a 700-acre cotton plantation owned by Stan McMullin and his father.

The particular risk that this low-hanging VEMCO line would contact this cotton picker or other high implements used on the McMullin plantation was known by VEMCO's employees in the area and by McMullin and Weaver. These persons also knew that overhead transmission lines, during the heat of the day, expand and "sag" lower toward the ground. Weaver testified he knew before the accident of the danger of high voltage electricity and that he should avoid any contact with the upper, or high voltage, line.

To protect against the risk of contact with VEMCO lines, VEMCO employees had "escorted" the 15'9" cotton picker from Natchitoches to the McMullin plantation when the picker was delivered there by McMullin's vendor about a month before the accident. VEMCO employees had sometimes assisted McMullin and other farmers to facilitate the movement of farm equipment around and under VEMCO lines traversing parish roads in the area.

About 9:00 a.m. three days before the accident and to a McMullin cotton field about a mile away from the accident scene, McMullin, accompanied by Weaver, drove the 15'9" cotton picker on the public road under the transmission line in question, clearing the bottom wire by an estimated three to four inches. The McMullins had a 16' PVC pipe and neoprene gloves which either Weaver or Stan McMullin, in Weaver's presence, later used to facilitate entry of the picker under a VEMCO overhead line and into this first cotton field in which the picker operated.

When that first field had been picked, McMullin, accompanied by Weaver, drove the cotton picker on the same public road toward a second McMullin cotton field. The PVC pipe was inadvertently left at the first field.

Following McMullin and Weaver in his pickup truck on the afternoon of the accident was Millard Kimball, an agriculture research associate for LSU Red River Experiment Station. Kimball had been observing the operation of the picker in the first field.

As the picker approached VEMCO's overhead line, Weaver, remembering the 3-4"' close clearance on the trip to the first field, departed the picker to monitor the clearance. Similarly remembering and driving slowly, McMullin stopped the picker when he saw in the picker's rearview mirrors that the lower line had snagged or hung on the picker.

Wearing the neoprene gloves, Weaver climbed atop the stopped picker to release the wire. Observing this and stopping his pickup behind the stopped picker, Kimball walked to the picker to converse with McMullin. Neither was in a position to see exactly what Weaver was doing atop the picker or how or why he contacted the upper high voltage wire. Both heard the noise of the electrical contact ("buzzing," "sizzling," "real loud humming"). Kimball looked up to see Weaver "landing" on his back atop the picker.

At Kimball's suggestion and to gain more distance from the danger and allow safer access to Weaver, McMullin deliberately drove the picker about 50 feet forward, breaking the snagged bottom wire. McMullin and Kimball then removed Weaver, who was unconscious, transporting him to the Coushatta hospital. McMullin noticed that the glove on Weaver's left hand was "charred." Hospital records also noted "entrance" burns in Weaver's left hand and "exit" burns on Weaver's feet.

The trauma affected Weaver's memory. His testimony to this effect was corroborated by medical experts. Weaver testified that he did not remember the day or any details of the accident or his being deposed six months later about the accident. Weaver testified that before the accident he knew about the danger of high voltage electricity, that he knew the upper wire was the energized wire which he should avoid, and that he "respected" electricity and would not have intentionally grasped or grabbed the upper wire.

We agree that Weaver's gloved left hand contacted or grasped the upper high voltage wire that caused his electrical burns and resulting injuries, but we cannot presume or find on this record that Weaver intentionally grabbed the upper wire, knowing and "respecting" the danger it posed. In an ordinary negligence action, there is no presumption of negligence on either plaintiff or defendant. The party asserting the negligence of another has the burden of proving it in the ordinary case. Bergeron v. K-Mart Corp., 540 So.2d 406 (La.App. 1st Cir.1989), writ denied. Compare Stansbury v. Mayor and...