Wooten v. Louisiana Power & Light Co.

• Decision Date: 08 October 1985
• Docket Number: No. 84,84
• Citation: 477 So.2d 1142
• Court: Court of Appeal of Louisiana — District of US
• Parties: Georgia H. WOOTEN v. LOUISIANA POWER & LIGHT COMPANY, et al. CA 0571. 477 So.2d 1142

Page 1142

477 So.2d 1142

Georgia H. WOOTEN v. LOUISIANA POWER & LIGHT COMPANY, et al.

No. 84 CA 0571.

477 So.2d 1142

Court of Appeal of Louisiana,

First Circuit.

Oct. 8, 1985.

Rehearing Denied Nov. 8, 1985.

Stanwood R. Duval, Jr., Duval, Funderburk, Sundbery & Lovell, Houma, for plaintiff and appellee.

Philip J. McMahon, McMahon, McCollam & Hargis, Houma, for defendant and appellant-Gulf Oil Co.

George F. Riess, Monroe & Lemann, New Orleans, for defendant-Louisiana Power & Light Co.

Christopher H. Riviere, Porteous, Hainkel, Johnson & Sarpy, Thibodaux, for defendant-Jules Hebert Sr.

Nan M. Landry, Landry, Watkins & Bonin, New Iberia, for defendants-Emelda L. LaRussa, Phillis LaRussa and Annie L. LaRussa Chauvin.

Before COVINGTON, C.J., and WATKINS and SHORTESS, JJ.

SHORTESS, Judge.

An accident resulting in the electrocution of James W. Wooten (Wooten) occurred on April 6, 1982, as he was assisting in removal of an outdoor sign beneath a live electrical wire at a Tunnel Boulevard service station in Houma, Louisiana. Wooten's widow, Georgia H. Wooten (plaintiff), filed a suit for wrongful death, individually and as natural tutrix of her minor child, Sonya Michelle. Defendants were Louisiana Power & Light Company (LP & L), owner of the electrical line; Gulf Oil Corporation (Gulf), lessor of the service station and owner of the sign since 1963; Jules A. Hebert, Sr. (Hebert), Gulf's assignee from 1978 to 1982; and Professional Auto Care, Inc. (PAC), Hebert's assignee at the time of the accident.

The trial court upheld motions for summary judgment, dismissing with prejudice Hebert and PAC. A consent judgment in favor of plaintiff and against LP & L for $215,000.00 resulted in the dismissal of LP & L, as well as Gulf's third party demand against LP & L. The case was tried against Gulf, the sole remaining defendant.

The jury returned a general verdict in favor of the defendant after answering the first written interrogatory, finding that Gulf was not negligent. Plaintiff filed a motion for a judgment notwithstanding the verdict (JNOV) and, alternatively, for a new trial. The trial court held that the jury misapplied the law, that Gulf's negligence was the proximate cause of Wooten's death, and that Wooten was neither contributorily negligent nor assumed the risk. Deciding those issues not reached by the jury, the court awarded damages of $279,718.72 to plaintiff and $126,391.33 to her child. LP & L was also found to be negligent, with that negligence a proximate cause of Wooten's death. Thus LP & L and Gulf, as joint tort-feasors, were responsible to the extent of 50% each. Since LP & L settled with plaintiff, the court reduced plaintiff's award by 50%.

The issues on appeal are:

(1) whether the trial court used the correct legal standard in applying the JNOV; and

(2) whether the trial court committed manifest error in the use of the JNOV to determine:

a. that the negligence of both Gulf and LP & L was the cause-in-fact of Wooten's death;

b. that there was neither contributory negligence nor assumption of the risk by Wooten; and

(3) whether the amount of damages awarded after the JNOV by the trial court to plaintiff was adequate.

JNOV

LSA-C.C.P. art. 1811 clearly gives the trial court authority to grant a JNOV to consider both issues of liability and damages. Its amendments have been held to be procedural in nature and applied retroactively. Robertson v. Penn, 472 So.2d 927 (La.App. 1st Cir.1985); Price v. Louisiana Farm Bureau Mutual Insurance Company, 457 So.2d 722 (La.App. 2nd Cir.1984), writs denied, 462 So.2d 205, 206 (La.1985). We have applied the U.S. Fifth Circuit standards:

On motions for directed verdict and for judgment notwithstanding the verdict the Court should consider all of the evidence--not just that evidence which supports the non-mover's case--but in the light and with all reasonable inferences most favorable to the party opposed to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of one party that the Court believes that reasonable men could not arrive at a contrary verdict, granting of the motions is proper. On the other hand, if there is substantial evidence opposed to the motions, that is, evidence of such quality and weight that reasonable and fair-minded men in the exercise of impartial judgment might reach different conclusions, the motions should be denied, and the case submitted to the jury.

Boeing v. Shipman, 411 F.2d 365, 374 (5th Cir.1969).

We have held that a JNOV should be granted only when the evidence points so strongly and overwhelmingly in favor of the moving party that reasonable men could not reach different conclusions, not merely when there is a preponderance of evidence for the mover. In applying this standard the court cannot weigh the evidence, pass on the credibility of witnesses, or substitute its judgment of facts for that of the jury. However, where virtually no factual dispute exists, thus requiring no credibility determinations, legal questions concerning duty-risk, assumption of the risk and contributory negligence are within the province of the court. The inquiry in the JNOV hearing focuses on whether the facts constitute negligence on the part of plaintiff or defendant. Rougeau v. Commercial Union Insurance Company, 432 So.2d 1162, 1166 (La.App. 3rd Cir.1983), writ denied, 437 So.2d 1149 (La.1983). We must review the record to determine whether the judge's legal conclusions based on the facts were manifestly erroneous.

LIABILITY

The parties stipulated that LP & L installed the 8,700-volt electrical line along Tunnel Boulevard in 1962; that Gulf installed its sign in 1964; that the topographic survey of the service station and sign location by surveyor Kenneth L. Rembert was accurate; and that the measurements of the line and sign were as follows: the sign was six feet across; its pole was 16 feet tall, with inclusion of the concrete base making the top of the Gulf sign 22 feet 8 inches above the ground; the power line was 26 feet 9 inches from the ground, but its horizontal clearance above the sign was zero, with a vertical clearance of 49 inches; and the line was approximately above the middle of the sign--three feet six inches from its edge. The parties partially stipulated to the accuracy of the Harold Olsen drawing of the sign and position of the victim at impact and afterward based on photographic and medical evidence of burns.

PAC, the latest assignee of the service station lease, intended to switch the sale of gasoline brands from Gulf to Shell and requested that the Gulf-Shell jobber change its sign to reflect that fact. When the jobber failed to perform as requested, See-More Outdoor Advertising (See-More) was given the job. Royal Musso, general manager of See-More, estimated that the normal four-hour job would require about two days due to the hazards created by the proximity of the sign to the wire.

Musso testified that he had not actually measured the distance from the sign to the wire, that looking up against the background of the sky made estimation of distance difficult, that he had never worked on a sign so close to and underneath a wire before; and that if he had had any doubts prior to the precautionary estimates taken, he would have gone about the job differently. Houma policeman Wayne Ledet and Gulf witness Harold Paul LeRay corroborated the difficulty of estimating distances between the sign and wire when looking up from the ground.

A boom truck with a 60-foot extension ladder was utilized, with Wooten stationed on the boom and Musso operating the boom controls from inside the truck. Wooten, extended over the front of the boom and reaching over the center of the sign, attempted to attach a chain hook to an eyebolt on the top of the sign when the accident occurred. Musso testified that it was necessary to put the boom's ladder over the top of the sign because earlier attempts to reach the eyebolt from the side proved fruitless. Musso, who minutes before had been watching Wooten, glanced away toward the highway, then heard a crackling noise, a muffled explosion, and a scream and looked up to see Wooten in flames. Wooten "had just begun to fall over the front of the ladder, basically from the waist over."

No one had called LP & L to request either a cut off of electricity or a rubber blanket over the line. Wooten was not wearing a safety hat or gloves.

Officer Ledet arrived to investigate the accident approximately two minutes after it occurred, in time to see the smoking victim being taken off the ladder. He described Wooten as badly burned, with two burns above his knees, and on his head, feet, hands and arms. Ledet found the missing top part of Wooten's scalp still connected to the wire and police photographs depict a black spot on the sign which shorted out where the ladder made contact with it and a burnt spot on the power line, where the top of Wooten's head hit.

Plaintiff's expert Harold Olsen, an electrical engineer, reconstructed the accident based on police photographs, medical evidence and testimony. It was Olsen's opinion that Wooten found the hook too thick to go through the eyebolt and was in the process of coming down when he lifted up and his head came into contact with the conductor. He determined that the back of Wooten's shoes, his legs above his knees and his hands were burnt because he was sitting on the ladder with his legs through it, his heels touching the rung of the ladder, his knees touching the plastic front of the sign and his hands on top of the ladder.

At the trial, Billy Stubbs, area Gulf maintenance superintendent, testified that Gulf replaced the original sign erected in 1964 with a new six-foot sign in 1968; that Gulf had no written policy on sign locations at its service stations; that it was his personal policy to move a sign location back ten feet from overhead power lines, to provide for possible future change to a rotating sign; and...