Williams v. City of Alexandria

• Decision Date: 10 October 1979
• Docket Number: No. 7161,7161
• Citation: 376 So.2d 367
• Court: Court of Appeal of Louisiana — District of US
• Parties: Lutcher WILLIAMS, Plaintiff-Appellant, v. CITY OF ALEXANDRIA et al., Defendants-Appellees, Rockwood Insurance Company and Carbo Foundry & Machine Company, Intervenors-Appellants.

Page 367

376 So.2d 367

Lutcher WILLIAMS, Plaintiff-Appellant, v. CITY OF ALEXANDRIA et al., Defendants-Appellees Rockwood Insurance Company and Carbo Foundry & Machine Company, Intervenors-Appellants.

No. 7161.

Court of Appeal of Louisiana, Third Circuit.

Oct. 10, 1979.

McClain, Morgan & Greenwald, Joseph W. Greenwald, and Eugene Thibodeaux, Lake Charles, for plaintiff-appellant.

Gist, Methvin Hughes & Munsterman by David A. Hughes, Alexandria, for defendants-appellees.

Walter M. Hunter, Jr., Alexandria, for intervenors-appellants.

Before CULPEPPER, DOMENGEAUX, and STOKER, JJ.

DOMENGEAUX, Judge.

This damage suit by plaintiff, Lutcher Williams, seeks recovery for injuries he sustained from an accident, allegedly caused by the negligence of the defendant, the City of Alexandria, in the design, installation, placement and maintenance of electrical transmission lines over a public right of way traversing through an industrial area. Also named as a defendant in the original action is the City's insurer, Maryland Casualty Company.

A petition of intervention was filed by Rockwood Insurance Company, the workmen's compensation insurer for plaintiff's employer, Carbo Foundry & Machine Company, and also by Carbo, to recover benefits paid to plaintiff, should the defendants be found liable for plaintiff's injuries.

A bifurcated trial was held in which a jury returned a verdict against the plaintiff, and in favor of Maryland Casualty Company. The trial judge also ruled against plaintiff, and in favor of the City of Alexandria.

Accordingly, judgment was rendered dismissing the demands of the plaintiff and intervenors. They now appeal to us.

On July 28, 1977, Lutcher Williams was employed by Carbo Foundry & Machine Company in Alexandria, Louisiana. Mr. Williams had been instructed by his employer, Larry Carbo, to drive a crane to the front of the Carbo Foundry building so that steel beams could be loaded onto a flat-bed truck for delivery. Rudy Lovato, the foundry's general foreman and crane operator, helped guide the steel beams onto the truck as they were lifted by the plaintiff. This crane was situated directly under electrical transmission lines owned by the City of Alexandria, and was attempting to lift the steel beams over a tall "hurricane" type fence. While Mr. Williams was holding one end of the steel bar, the boom of the crane either touched the overhead electrical transmission wires, or came into such proximity with the wires that the phenomenon called "arcing", a transference of current from one conducting material to another without actual contact, occurred. As a result, an electrical current flowed through the crane's boom into the cable attached to the boom and into the steel beam being held by the plaintiff, causing him to sustain severe and disabling injuries, eventually resulting in the amputation of his right arm and left leg.

The Carbo Foundry & Machine Company site covers approximately two blocks in the City of Alexandria, and is divided by Ashley Street, which runs through the facility. The area surrounding Carbo Foundry is primarily residential, with Carbo being the only industry located within that area. Electrical transmission lines themselves run parallel to Ashley Street, on the south side nearest the machine works division of Carbo Foundry. These transmission lines were constructed and erected in either 1957 or 1958 to help connect a new power plant built by the defendant with the then existing facility.

The transmission lines consist of seven wires attached to a fifty-five foot utility pole. Three lines are located on the bottom cross-bar on Ashley Street, known as the Olive Street feeder lines, and four lines run from the top cross on, identified as the City Park feeder lines. The voltage on these two lines fluctuates from a maximum of 12,470 volts to 13,800 volts on a phase to phase determination (between two energized wires) and between 7,200 to 7,900 volts on a phase to ground reading. At the accident site, the lowest point of the Olive Street feeder lines was 40' 6 from ground level. Evidence introduced in court indicated that the actual line which was struck measured 42' 5 from ground level.

Although the electrical transmission lines which traversed the Carbo Foundry provide no direct service to that facility, the defendant contends that as the equipment is modernized and financing becomes available, these lines will directly provide the residences and industries along its route with electrical service by the use of transformers directly attached to the feeder lines. According to the City of Alexandria, when these lines were installed in the mid fifties, it was planned that some time in the future direct service would be available to customers from the transmission lines themselves.

Plaintiff assigned seven specifications of error upon which he contends that the trial court incorrectly reached its determination as to liability in this case. The essential allegation raised by appellant is that the court erred in its failure to find any actionable negligence on the part of the City of Alexandria and its insurer, which proximately caused the accident. Similarly, in this respect, plaintiff contends that the trial judge failed to properly apply the duty risk doctrine in determining the liability of the defendant. Plaintiff also objects to several of the instructions given to the jury by the trial judge and to the court's failure to instruct the jury as to the obligation of the utility owner to determine the type of work performed at locations over which its lines passed, and as to its duty to insulate all wires throughout a company's system. Plaintiff also objected to the form in which special interrogatories were submitted. Special interrogatory no. 1, submitted to the jury in its determination as to Maryland Casualty Company's liability, read:

"1. Was the City of Alexandria negligent in the design, location, placement and maintenance of the electrical lines involved in this accident and, if so, was this negligence a proximate cause of the accident?"

To this question, the jury responded in the negative, finding that there was no negligence on the part of the City of Alexandria, and therefore, holding the defendant, Maryland Casualty Company, not liable for the injuries suffered by the plaintiff.

Similarly, the trial judge found that the City of Alexandria was not liable and that the plaintiff had failed to prove any actionable negligence on the part of the city that proximately caused this accident. The trial judge concluded that "the sole cause of the accident . . . was the crane operator in raising the boom knowing the lines were there and coming in contact with the same." The court found that the doctrine of duty risk did not, under these circumstances, impose any liability upon the city for its construction, use or maintenance of the electrical lines located above defendant's place of employment.

Negligence is conduct which creates an unreasonable risk of foreseeable harm to others. Negligent conduct becomes a cause in fact of harm to another if it was a substantial factor in bringing about that harm. Negligence is determined by the existence of a risk or hazard and by the violation of a duty to protect certain individuals from such risk. Pierre v. Allstate Insurance Company, 257 La. 471, 242 So.2d 821 (1970). Where the risk of harm encountered by a plaintiff falls within the scope of protection to which a defendant is under a duty to extend, and where there is a breach of that duty, the defendant then becomes liable for any injury resulting to the plaintiff arising from the particular risk or hazard which exists. Dixie Drive It Yourself System v. American Beverage Company, 242 La. 471, 137 So.2d 298 (1962); Dyson v. Gulf Modular Corporation, 338 So.2d 1385 (La.1976).

In applying these principles to the instant action, the crucial test becomes...