Williams v. City of New Orleans

• Decision Date: 08 June 1983
• Docket Number: 0534,Nos. 0533,s. 0533
• Citation: 433 So.2d 1129
• Parties: Curtis WILLIAMS and Willie Mae Hyman, Parents of the Deceased, John Henry Williams and Marion Portes Achee v. CITY OF NEW ORLEANS, New Orleans Public Service, Inc., and South Central Bell Telephone Co.
• Court: Court of Appeal of Louisiana — District of US

Page 1129

433 So.2d 1129

Curtis WILLIAMS and Willie Mae Hyman, Parents of the Deceased, John Henry Williams and Marion Portes Achee v. CITY OF NEW ORLEANS, New Orleans Public Service, Inc., and South Central Bell Telephone Co.

Nos. 0533, 0534.

Court of Appeal of Louisiana Fourth Circuit.

June 8, 1983.

Rehearing Denied July 18, 1983.

C.B. Ogden, II, Thomas W. Milliner and Salvador Anzelmo, New Orleans, for defendants-appellants.

Eric M. Ferrouillet, Lolis Edward Elie, Elie, Ferrouillet & Ferrouillet, New Orleans, for plaintiffs-appellees.

Before GULOTTA, SCHOTT and CIACCIO, JJ.

CIACCIO, Judge.

These consolidated cases arose from two similar but separate incidents. Plaintiffs sued defendants praying for judgment in solido. A bifurcated trial was conducted, wherein the case against defendant-appellant, New Orleans Public Service, Inc., was tried by a jury and the case against defendant-appellant, the City of New Orleans, was tried by the judge. ¹ See La.R.S. 13:5105. Both jury and judge rendered verdicts in favor of plaintiffs and against their respective defendants. Defendant NOPSI filed a rule for remittitur and, alternatively, for a new trial which was dismissed by the trial court. The trial court entered judgment in accordance with the verdicts and defendants appeal. We amend and affirm.

On May 3, 1978, the intersection of Lake Forest Boulevard and Bundy Road was flooded due to heavy rain. A City of New Orleans one-way street sign stanchion located at this intersection became electrified by contact with an underground electric cable which was installed, maintained and operated by NOPSI. Plaintiff, Marian Achee, was injured when she touched the stanchion at approximately 12:00 noon. John Williams, son of the other plaintiffs, was electrocuted at the site at approximately 2:30 P.M.

The jury found NOPSI liable and awarded Mrs. Willie May Hyman, mother of John Williams, $302,632.00 ². The jury awarded Mrs. Achee $125,000.00. The trial judge made the jury verdicts judgments of the court. The trial judge rendered judgments against the City of New Orleans in the amounts of $90,000.00 in favor of Mrs. Hyman and $125,000.00 in favor of Mrs. Achee. These judgments do not contain any reference to indicate joint or severable liability as between the City and NOPSI.

Both appellants raise essentially the same issues on appeal. Each appellant argues that the other should have been held solely responsible, i.e., each appellant argues the error of the verdict against it. Secondly, both appellants argue that the awards to plaintiffs were excessive. Lastly, appellants argue that if they are liable, the judgment should indicate whether they are jointly liable. Appellees also assign error, arguing that the awards were deficient.

NEGLIGENCE OF NOPSI

Plaintiffs argued at trial that NOPSI was negligent for installing the cable at a depth of only 18 inches without providing any supplemental protection. NOPSI argued that this type installation had been standard procedure for 25 or 30 years and no similar accident had occurred.

The cable in question supplied electricity to the street lights along Lake Forest Boulevard. The cable was laid pursuant to a contract between NOPSI and the City. Under the terms of that contract, NOPSI undertook the responsibility for the engineering and drawing of design plans for the laying of street light circuitry. NOPSI used its own in-house electrical engineers to draw up the plans and specifications for laying the cable. The actual construction work was performed by a subcontractor. A NOPSI assistant director of engineering testified at trial that in May of 1978 the cable was owned by NOPSI.

To determine whether tort liability exists under the facts of a particular case, the Louisiana Supreme Court has adopted a duty-risk approach. Shelton v. Aetna Casualty and Surety Company, 334 So.2d 406 (La.1976); Hill v. Lundin and Associates, Inc., 260 La. 542, 256 So.2d 620 (1972); Dixie Drive It Yourself Systems v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962).

The duty risk analysis involves answering the following inquiries: (1) Was NOPSI's conduct a cause-in-fact of plaintiffs' accidents? (2) What, if any, duty was owed by NOPSI to the plaintiffs? (3) Was the risk, and harm caused, within the scope of protection afforded by this duty? (4) Was there a breach of this duty? See: Allen v. Housing Authority of New Orleans, 423 So.2d 1291 (La.App. 4th Cir.1982) and Coleman v. Douglas Public Service, Inc. et al., 423 So.2d 1205 (La.App. 4th Cir.1982).

In determining cause-in-fact we make no inquiry as to whether defendant's conduct was unlawful or negligent. Cause-in-fact is a necessary logical antecedent without which the accident would not have occurred. These accidents would not have occurred in the absence of the cable which NOPSI had installed. Installation of the cable by NOPSI was a cause-in-fact of the accidents.

NOPSI has a duty to use reasonable care in the installation, operation and maintenance of their electric lines, and will be responsible for any conduct falling short of this standard. NOPSI must provide protection which safely guards against any contingency that can be reasonably anticipated. The degree of care which satisfies this duty varies with the danger which will be incurred by negligence and must be commensurate with the danger involved. Calton v. Louisiana Power & Light, 56 So.2d 862 (La.App. 2d Cir.1952). Recognizing NOPSI's duty, we find that the scope of protection afforded by this duty encompassed the protection of private citizens, such as the plaintiffs, from the risk of harm caused by accidental contact with charged electric lines.

Clearly, NOPSI owed a duty to these plaintiffs. The final decisive inquiry is whether NOPSI breached its duty. Much expert testimony was presented by plaintiffs as well as defendants concerning the applicability to the facts of this case of the National Electric Safety Code (1973 edition). The Code sets forth the purpose of its recommendations as "the practical safeguarding of persons from hazards arising from the installation, operation and maintenance of underground or buried supply and communications lines and associated equipment. It [Part 3 of the Code] contains basic provisions considered necessary for safety." While with regard to underground electric lines, this Code has not been adopted by any law or ordinance as a safety standard, the Code should be given whatever probative weight the trier of fact finds it warrants. Burley v. Louisiana Power & Light, 319 So.2d 334 (La.1975).

For electric cable carrying 600 volts or less the Code provides for a burial depth of 24 inches. Prefacing the recommended burial depths the Code states, "The distance between the top of a cable and the surface under which it is installed (depth of burial) shall be sufficient to protect the cable from injury or damage imposed by expected surface usage." The Code further provides that burial depths less than those recommended "may be used where supplemental protection is provided."

The Code also provides that these rules may be waived or modified by the proper administrative authority. NOPSI argues that they complied with the Code because their construction plans were approved by the Department of Utilities and this approval was a waiver as contemplated by the Code. We do not agree. The City Charter indicates that the proper administrative authority from whom to seek a waiver would have been the City Council or possibly the Department of Safety and Permits. See: Home Rule Charter of the City of New Orleans Art. III and Art. IV Chapter 7. The City Charter empowers the Department of Utilities to recommend, supervise, investigate and make reports. This department is not a regulating authority with the power to waive or modify safety requirements. See: Home Rule Charter of the City of New Orleans Art. IV Chapter 16. Expert testimony at trial also indicated that a waiver should have come from the City Council. NOPSI did not seek a waiver from the City Council or the Department of Safety and Permits. Furthermore, a reading of the letter approving the construction plan reveals that the approval was for the location of the light standards, not the burial depth of the cable.

The cable in question carried between 120 and 125 volts of electricity. It was a copper conductor, American Wire Gauge No. 6, with 3/16 of an inch insulation of polyvinyl chloride. Other than the insulation around the wire, the only protection for the cable was the burial depth of 18 inches. The insulation was designed to protect against soil and rocks. It was not designed to protect against equipment which might pierce it. No supplemental protection was provided for this cable.

A registered consulting electrical engineer, in the profession since 1959, testified as an expert at trial concerning the Code and its application to this case. He pointed out the historical development of the Code as "an attempt to put into writing the knowledge that has been gained throughout the country by engineers, experts in these areas." It was his opinion that "the Code represents a minimum standard of good engineering judgment." Further expert testimony was offered that at a burial depth of only 18 inches some type of supplemental protection should have been provided. Expert testimony also indicated that the placing of street signs should have been considered and anticipated as "expected surface usage."

Other expert trial testimony contradicted the expert opinions referred to above. There was expert testimony which indicated that NOPSI had exercised good engineering judgment in the installation of the cable and had not done anything improper. The trier of fact may, and should, assess the credibility of experts who testify at the trial, to determine the most credible and realistic evidence. After weighing and evaluating all of the evidence, the trier of fact may accept or reject the...