Bits & Pieces

Nankin v. Continental Airlines, Inc.

United States District Court,

C.D. California.

Pablo NANKIN, an individual; and Eleanor Arlene Nankin, an individual, Plaintiffs,


CONTINENTAL AIRLINES, INC., a Delaware corporation; Carl Stewart, an individual; and Does 1 through 20, Inclusive, Defendants.

No. CV 09-07851 MMM (RZx).


Jan. 29, 2010.




MARGARET M. MORROW, District Judge.


On August 31, 2009, Pablo and Eleanor Arlene Nankin filed this action against Continental Airlines, Inc. (“Continental”), Carl Stewart, and certain fictitious defendants in Los Angeles Superior Court. Defendant Continental was served with a copy of the summons and complaint on September 28, 2009. Both Continental and Stewart filed answers in state court on October 26, 2009.  Continental removed the action to federal court on October 28, 2009.


Defendant Continental’s Notice of Removal (“Notice of Removal”), Docket No. 1 (Oct. 26, 2009).


On January 15, 2010, the court issued an order to show cause why the case should not be remanded for lack of subject matter jurisdiction. Continental filed a response to the order to show cause on January 22, 2010, asserting that federal jurisdiction exists because plaintiff’s state law claims are preempted by the Montreal Convention, a treaty of the United States.


Order to Show Cause re: Lack of Subject Matter Jurisdiction (“Order”), Docket No. 9 (Jan. 15, 2010).


Defendants Continental and Stewart’s Response to Order to Show Cause (“Def.’s Response”), Docket No. 10 (Jan. 22, 2010).




A. Plaintiff’s Complaint


This action concerns damages allegedly sustained by plaintiffs while traveling internationally from Acapulco, Mexico to Los Angeles. Plaintiffs purchased round-trip airline tickets from Continental for a vacation to Mexico. On their return to the United States, plaintiffs had a stop-over in Houston, Texas. Both plaintiffs assert that, although they had less than one hour to get to their next flight, Maria Mahar, an employee and agent of Continental, refused to help them move quickly through immigrations and customs at the Houston airport. Mahar asserted that she had no obligation to do so because Continental had other flights going to Los Angeles. Pablo Nankin spoke with Mahar’s supervisor, Carl Stewart. Stewart purportedly said he was a Continental supervisor and TSA agent, although he presented no identification. Stewart too allegedly refused to help plaintiffs. When Nankin asked Stewart for his name, Stewart allegedly seized Pablo Nankin’s boarding pass and insisted that immigration officers intervene. Once immigration officers became involved, the Nankins were allegedly cleared through immigrations.0 At this point, Stewart again approached the Nankins and informed them that Eleanor Nankin could fly, but Pablo Nankin could not, and that if Pablo Nankin did not leave the area, he would be banned from all U.S. domestic flights.1 Plaintiffs assert that they were forced to forfeit their tickets and fly on American Airlines at their own expense, with an added stop in Dallas .2


Plaintiff’s Complaint for Damages (“Complaint”), attached to Notice of Removal ¶¶ 9 (August 31, 2009).


Id., ¶ 10.


Id., ¶¶ 12-13.




Id., ¶¶ 13-14.


Id., ¶ 15.


0.Id., ¶ 16.


1.Id., ¶ 17.


2.Id., ¶ 18.


Their complaint alleges claims for (1) breach of contract; (2) breach of warranty; (3) negligent infliction of emotional distress; and (4) unlawful and unfair business practices.


B. Defendant’s Notice of Removal


In their notice of removal, defendants contend that the Montreal Convention completely preempts plaintiffs’ claims because the treaty “exclusively governs claims and the recovery of damages arising out of international air carriage.” 3 Based on complete preemption, defendants assert that plaintiffs’ claims require resolution of a federal question and that the court has jurisdiction as a result.


3. Notice of Removal, ¶ 5.




A. Removal Jurisdiction


“Except as otherwise expressly provided by Act of Congress, any civil action brought in a State court of which the district courts of the United States have original jurisdiction, may be removed by the defendant or the defendants, to the district court of the United States for the district and division embracing the place where such action is pending.” 28 U.S.C. § 1441(a). “If at any time before final judgment it appears that the district court lacks subject matter jurisdiction, the case shall be remanded.” 28 U.S.C. § 1447(c).


The Ninth Circuit “strictly construe[s] the removal statute against removal jurisdiction.” Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992) (citing Boggs v. Lewis, 863 F.2d 662, 663 (9th Cir.1988), and Takeda v. Northwestern Nat’l Life Ins. Co. ., 765 F.2d 815, 818 (9th Cir.1985)). “Federal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Id. (citing Libhard v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir.1979)).


“The ‘strong presumption’ against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper.” Id. (citing Nishimoto v. Federman-Bachrach & Assocs., 903 F.2d 709, 712, n. 3 (9th Cir.1990), and Emrich v. Touche Ross & Co., 846 F.2d 1190, 1195 (9th Cir.1988)). Thus, defendant must show by a preponderance of the evidence that federal jurisdiction exists. See Matheson v. Progressive Specialty Ins. Co., 319 F.3d 1089, 1091 (9th Cir.2003); see also Sanchez v. Monumental Life Ins. Co., 102 F.3d 398, 404 (9th Cir.1996) (“[u]nder [the preponderance of the evidence] burden, the defendant must provide evidence establishing that it is ‘more likely than not’ [that jurisdiction exists]”).


B. Whether This Case Falls Within the Court’s Federal Question Jurisdiction


1. Legal Standard


There are two statutorily prescribed bases for federal subject matter jurisdiction: diversity jurisdiction, 28 U.S.C. § 1332, and federal question jurisdiction, 28 U.S.C. § 1331. “Federal district courts have original federal question jurisdiction of actions ‘arising under the Constitution, laws, or treaties of the United States.’ “ Sullivan v. First Affiliated Securities, Inc., 813 F.2d 1368, 1371 (9th Cir.) (quoting 28 U.S.C. § 1331), cert. denied, 484 U.S. 850, 108 S.Ct. 150, 98 L.Ed.2d 106 (1987). Generally, under the “well-pleaded complaint rule,” a claim “arises under” federal law only if a federal question appears on the face of plaintiff’s complaint. See ARCO Environmental Remediation, L.L. C. v. Department of Health & Environmental Quality of Montana, 213 F.3d 1108, 1113 (9th Cir.2000); see also Caterpillar, Inc. v. Williams, 482 U.S. 386, 392, 107 S.Ct. 2425, 96 L.Ed.2d 318 (1987) (“The party who brings the suit is master to decide what law he will rely upon”); Franchise Tax Board v. Construction Laborers Vacation Trust for Southern California, 463 U.S. 1, 27-28, 103 S.Ct. 2841, 77 L.Ed.2d 420 (1983) ( “federal courts have jurisdiction to hear, originally or by removal, only those cases in which a well-pleaded complaint establishes either that federal law creates the cause of action or that the plaintiff’s right to relief necessarily depends on resolution of a substantial question of federal law”); id. at 10 (“a defendant may not remove a case to federal court unless the plaintiff’s complaint establishes that the case ‘arises under’ federal law” (emphasis added)); Louisville & Nashville R.R. Co. v. Mottley, 211 U.S. 149, 152, 29 S.Ct. 42, 53 L.Ed. 126 (1908); Hunter v. United Van Lines, 746 F.2d 635, 641 (9th Cir.1984), cert. denied, 474 U.S. 863, 106 S.Ct. 180, 88 L.Ed.2d 150 (1985). Thus, even if defendant asserts a defense based exclusively on federal law, so long as plaintiff’s claim is a state law claim, removal jurisdiction is lacking. See ARCO, 213 F.3d at 1113 (“the existence of federal jurisdiction depends solely on the plaintiff’s claims for relief and not on anticipated defenses of those claims”).


There are, however, exceptions to the “well-pleaded complaint rule” that allow the court to look beyond the face of plaintiff’s pleading. Under the “artful pleading” doctrine, a plaintiff cannot defeat removal of a federal claim by disguising or pleading it artfully as a state law claim. Where this occurs, the federal court will recharacterize the claim and uphold removal. See Federated Dept. Stores, Inc. v. Moitie, 452 U.S. 394, 398 n. 2, 101 S.Ct. 2424, 69 L.Ed.2d 103 (1981); Schroeder v. TransWorld Airlines, Inc., 702 F.2d 189, 191 (9th Cir.1983). Another exception arises where a state law claim is completely preempted by federal law; in such circumstances, the preemptive force of federal law “converts an ordinary state common-law complaint into one stating a federal claim for purposes of the well-pleaded complaint rule.” Metropolitan Life Insurance Co. v. Taylor, 481 U.S. 58, 65, 107 S.Ct. 1542, 95 L.Ed.2d 55 (1987). Finally, even if “state law creates the cause of action, and no federal law completely preempts it, federal jurisdiction may still lie if ‘it appears that some substantial, disputed question of federal law is a necessary element of one of the well-pleaded state claims.’ “ Rains v. Criterion Systems, Inc., 80 F.3d 339, 345 (9th Cir.1996).


2. The Montreal Convention


Continental removed this action on the basis that the Nankins’ claims arose under federal law and were completely preempted by the Montreal Convention, also known as the Convention for the Unification of Certain Rules for International Carriage by Air, May 28, 1999, S. Treaty Doc. No. 106-45 (2000), 1999 WL 33292734 (2000).


a. Whether the Montreal Convention Completely Preempts State Law Claims


The Montreal Convention “was the product of a United Nations effort to reform the Warsaw Convention ‘so as to harmonize the hodgepodge of supplementary amendments and intercarrier agreements of which the Warsaw Convention system of liability consists.’ “ Sompo Japan Insurance, Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 780 (7th Cir.2008) (quoting Ehrlich v. American Airlines, Inc., 360 F.3d 366, 371 n. 4 (2d Cir.2004)). The Montreal Convention covers “all international carriage of persons, baggage or cargo performed by aircraft for reward.” Montreal Convention Art. 1(1). See also Nobre v. American Airlines, No. 09-61170-CIV, 2009 WL 5125976,(S.D.Fla. Dec.21, 2009) (“[The Convention] is the exclusive mechanism for recovery for personal injuries suffered on board an aircraft or in the course of embarking or disembarking from an airplane”).


In its response to the Court’s order to show cause for lack of subject matter jurisdiction, Continental asserts that the Ninth Circuit, in Carey v. United Airlines, 255 F.3d 1044 (9th Cir.2001), held that the Warsaw Convention provides the only cause of action for personal injuries suffered on board an aircraft or during the process of embarking or disembarking.4 Citing Carey, Continental asserts that since all personal injury claims arising out of international air transportation are barred unless allowed by the Convention, the Convention is the exclusive remedy for any intentional misconduct by an airline employee.5


4. Def.’s Response at 3 n. 2.




The Carey court cited El Al Israeli Airlines, Ltd. v. Tseng, 525 U.S. 155, 119 S.Ct. 662, 142 L.Ed.2d 576 (1999), as authroity for the proposition that the Warsaw Convention provides the exclusive remedy for international air travelers. Carey, 255 F.3d at 1054. In El Al, a passenger sued for psychological injuries allegedly caused by an intrusive search to which he was subjected before boarding an airplane. The passenger’s injury occurred before the United States had ratified Montreal Protocol No. 4, at a time when the Warsaw Convention contained no exclusivity clause. The passenger conceded that his injuries were not caused by an “accident” within the meaning of the Warsaw Convention and that he could not recover under the Convention. He argued, however, that because the Convention afforded him no recovery, it did not preclude him from recovering under state tort law. The Court disagreed, holding that, even absent an express exclusivity clause, the Warsaw Convention precluded alternative causes of action for injuries suffered while boarding, on board, or disembarking from an aircraft. To the extent recovery is “not allowed under the Convention,” the Court stated, “[it] is not available at all.” El Al, 525 U.S. at 161 (internal quotation and citation omitted). Such a result was required, it noted, because permitting a plaintiff to assert state law claims for injuries within the scope of the Convention would “undermine the uniform regulation of international air carrier liability that the Warsaw Convention was designed to foster.” Id. The Court held that Montreal Protocol No. 4, which had been ratified by the time El Al was decided, “merely clarifie[d], [but] d[id] not alter, the Convention’s rule of exclusivity.” Id . at 174.


The issue before the El Al Court was conflict preemption. The Court did not address whether the Warsaw Convention completely preempted state law, and whether the Montreal Convention completely preempts state law remains an open question today. The Montreal Convention, which went into force in 2003, contains an exclusivity provision, Article 29, which provides that its conditions and limitations of liability govern in any case seeking damages for carrying passengers, baggage or cargo:


“In the carriage of passengers, baggage and cargo, any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise, can only be brought subject to the conditions and such limits of liability as are set out in this Convention without prejudice to the question as to who are the persons who have the right to bring suit and what are their respective rights….” Montreal Convention, Art. 29.


Applying the reasoning of El Al to the Montreal Convention, one court found that:

“As the replacement for the Warsaw Convention, the Montreal Convention is similarly designed to foster a uniform regulation of international air carrier liability. Just as a need to avoid interference with this purpose led the El Al Court to interpret the Warsaw Convention as exclusive, even before the addition of the exclusivity language of Montreal Protocol No. 4, the same rationale requires that the Montreal Convention be interpreted to have a similar underlying pre-emptive effect, even without the express exclusivity language contained in Article 29. The Montreal Convention, like the Warsaw Convention, will therefore bar any claim outside its terms for personal injury suffered on board an aircraft or in the course of any of the operations of embarking or disembarking.” Schaefer-Condulmari, 2009 WL 4729882 at *6.


The fact that the Montreal Convention has preemptive effect, however, does not compel the conclusion that it completely preempts state law causes of action and consequently vest subject matter jurisdiction in this court. It is true, as Continental notes, that the Ninth Circuit and Supreme Court have considered conflict preemption under the Warsaw Convention. Neither court, however, has considered complete preemption under either the Warsaw or Montreal Conventions. Other federal courts that have considered the issue have disagreed as to whether the Convention completely preempts state law. Compare Husmann v. Trans World Airlines, Inc., 169 F.3d 1151, 1151 (8th Cir.1999) (holding that the Warsaw Convention completely preempted Missouri tort claims); Schaefer-Condulmari, 2009 WL 4729882 at(finding that the Convention completely preempts state law because the Convention contains civil enforcement provisions whose scope encompassed plaintiff’s claims and the exclusivity provision evidenced an intent to provide an exclusive federal remedy); Schoeffler-Miller v. Northwest Airlines, Inc., No. 08-CV-4012, 2008 WL 4936737,(C.D.Ill. Nov.17, 2008) (finding that the Montreal Convention completely preempted state tort claims); Singh v. N. Am. Airlines, 426 F.Supp.2d 38, 48 (E.D.N.Y.2006) (same), with Sompo Japan Insurance, Inc. v. Nippon Cargo Airlines Co., Ltd., 522 F.3d 776, 785-86 (7th Cir.2008) (holding that the Warsaw Convention’s exclusivity provisions “simply operate as an affirmative defense” and do not completely preempt state law causes of action, and observing that the Convention “expressly contemplates the use of state law to fill in the interstices”); Distribuidora Dimsa v. Linea Aerea del Cobre Sa, 976 F.2d 90, 93 (2d Cir.1992) (denominating the liability limitations of the Warsaw Convention an affirmative defense); Shah v. Kuwait Airlines Corp., 653 F.Supp.2d 499, 502 (S.D.N.Y.2009) (concluding that the Montreal Convention functions as an affirmative defense); Narkiewicz-Laine v. Scandinavian Airlines Sys., 587 F.Supp.2d 888, 890 (N.D.Ill.2008) (“Plaintiff brought state-law breach of contract claims. Because the conditions and limits of the Montreal Convention are defenses to the state-law claims raised by plaintiff, they do not provide a basis for federal-question subject matter jurisdiction”); Akrami v. British Airways PLC, No. C 01-02882 SC, 2002 WL 31031324, *3-5 (N.D.Cal. Sept.10, 2002) (no complete preemption in the Warsaw Convention); Fournier v. Lufthansa German Airlines, 191 F.Supp.2d 996, 1003 (N.D.Ill.2002) (same); 0 Rogers v. American Airlines, Inc., 192 F.Supp.2d 661, 663 (N.D.Tex.2001) (“[While] the Warsaw Convention’s exclusivity provisions may well preempt Plaintiffs’ state law claims, the delicate balance between state and federal courts cautions against finding that the field of international air travel is so completely preempted that any claim relating to the area is ‘necessarily federal in character’ ”).


Article 29 applies to “any action for damages, however founded, whether under this Convention or in contract or in tort or otherwise.” Montreal Convention, Art. 29 (emphasis added). Interpreting this language, Judge Matz oncluded that by its own terms, the Convention “does not apply only to actions brought ‘under this Convention,’ as that would render meaningless the words ‘or in contract or in tort or otherwise.’ Hence, the plain language of the Convention demonstrates that not all damages actions involving the carriage of passengers, baggage and cargo arise under the Convention.” Serrano v. American Airlines, Inc., No. CV 08-2256 AHM (FFMx), 2008 WL 2117239,(C.D.Cal. May 15, 2008). Judge Matz noted that the defendant who had removed the case “tend[ed] to conflate ordinary preemption with the complete preemption exception to the well-pleaded complaint rule.” Id. atn. 1. Citing Rogers, Judge Matz concluded that “the uniformity required by the Warsaw Convention may be achieved through ‘exclusive remedies and liabilities,’ not through a requirement that all such cases be brought in federal court.” Id. at(quoting Rogers, 192 F.Supp.2d at 671).


For the reasons articulated by Judge Matz in Serrano, the court similarly concludes that the Montreal Convention does not completely preempt state law causes of action. Rather, it controls the remedies available and liabilities that can be imposed via those causes of action. Consequently, the Montreal Convention provides no basis for asserting that federal subject matter jurisdiction exists in this case.


b. Whether the Montreal Convention Applies to Claims Alleging Nonperformance of an Air Transport Contract


Although the court finds Serrano and Rogers persuasive, there is a more substantial issue regarding the existence of jurisdiction in this case. Article 19 of the Montreal Convention imposes liability for damages resulting from delay of passengers, baggage, or cargo. Here, plaintiffs allege non-performance of their air transport contract with Continental, not delay. Specifically, plaintiffs contend that they were not permitted to board a Continental flight, and were forced to secure transport on a different airline.


“The plain language of Article 19 of the Montreal Convention indicates that it governs claims for delay, not nonperformance. Moreover, … the drafting history of the Warsaw Convention’s Article 19-whose pertinent language is identical to its Montreal Convention counterpart-indicates that it was not intended to cover claims for nonperformance.” In re Nigeria Charter Flights Contract Litigation, 520 F.Supp.2d 447, 452-53 (E.D.N.Y.2007) (citing Wolgel v. Mexicana Airlines, 821 F.2d 442, 444 (7th Cir.1987) (“Article 19 of the Warsaw Convention provides that ‘[t]he carrier shall be liable for damage occasioned by delay in the transportation by air of passengers, baggage, or goods.’ The first question in this case is whether this provision extends to claims of discriminatory bumping. We conclude that it does not”)). See also Wolgel, 821 F.2d at 445 (“The history of the Warsaw Convention indicates that the drafters of the Convention did not intend the word ‘delay’ in Article 19 to extend to claims … that arise from the total nonperformance of a contract”).


“[W]here a plaintiff claims total nonperformance of the contract, courts scrutinize the facts to determine whether the claim, however founded, actually arose out of a delay in transportation. Courts have construed nonperformance claims as sounding in delay where plaintiff was initially refused boarding but the defendant airline ultimately transported plaintiff on a later flight … and where defendant airline caused a passenger to miss a flight and the passenger secured alternate transportation without waiting to see if defendant would transport him.” Kamanou-Goune v. Swiss International Airlines, No. 08 Civ. 7153(SCR)(GAY), 2009 WL 874600,(S.D.N.Y. Mar. 27, 2009) (citing Ikekpeazu v. Air France, No. 3:04cv00711, 2004 WL 2810063,(D.Conn. Dec.6, 2004) (finding that the Montreal Convention applied to the claim of a plaintiff who, after delay, was permitted to board a later flight on the same airline), and Oparaji v. Virgin Atlantic Airways, Ltd., No. 04-CV-1554 (FB), 2006 WL 2708034, *3-4 (E.D.N.Y. Sept.19, 2006) (where plaintiff is faced with a delay on his original airline, and chooses to purchase a ticket on another airline for an earlier flight, his claim concerns delay within the scope of Article 19 because a passenger cannot convert delay into nonperformance by unilateral action)).


In Kamanou-Goune, plaintiff was twice told that her daughter would be unable to board any Swiss Air flight. 2009 WL 874600 at *5. The court concludes that her claims did not fall within the scope of the Montreal Convention because, “[b]ased upon Swiss Air’s words and actions, it was reasonable for plaintiff to believe that Swiss Air clearly refused to perform the contract.” Id. In this case, there is no indication that Continental offered plaintiffs alternate travel arrangements. Rather, the complaint alleges that defendant Stewart seized Pablo Nankin’s boarding pass, notified him that he would be barred from boarding any Continental flight, and threatened that he would be barred from all U.S. domestic flights if he did not leave the area. 6 Based on plaintiffs’ allegations, it clearly appears that, through its employees, Continental refused to perform the contract. The Montreal Convention is thus not applicable to plaintiffs’ claims.


6. Complaint, ¶ 17.


Taking issue with the court’s order to show cause, Continental argues that this case is unlike Wolgel and Nigeria Charter.7 It contends that plaintiffs had “essentially completed most of their international transportation and were on their way home when this incident occurred.” It contrasts this with the plaintiffs in Wolgel, who had been bumped from a flight, had not been given alternative travel plans from their air carrier and thus never left the airport.8 While Wolgel was cited in the order to show cause, the court did not intend to suggest that it was factually similar to the Nankins’ claim. Rather, the court cited Wolgel’ s analysis of the history and scope of Article 19.


7. Def.’s Response at 4, n. 2


8. Def.’s Response at 5 n. 2.


Continental also maintains that plaintiffs’ claims are different from those at issue in Nigeria Charter because, “unlike the Nigeria Charter passengers, Plaintiffs herein were already en route from Acapulco to Los Angeles and were trying to make their connection in Houston.” Continental concedes, however, that certain of the passengers in Nigeria Charter were “stranded before the second leg of their trip.” 9 Thus, both cases involve defendants that began to perform, but failed to complete, their contractual obligations. In Nigeria Charter, certain plaintiffs had flown from Lagos, Nigeria to New York on a round-trip ticket, and were stranded in New York when defendant ceased performance of the contract. Nigeria Charter, 520 F.Supp.2d. at 450 n. 2. The defendant in Nigeria Charter performed only a part of its air transport contract. As the court there noted, “ ‘that the airline provided one flight according to contract does not necessarily render the failure to provide carriage on another flight a mere delay rather than a total failure to perform.’ “ Id. at 455 (citing Weiss v. El Al Israel Airlines, Ltd., 433 F.Supp.2d 361, 367 (S.D.N.Y.2006)).


9.Id. at 4 n. 2.


Plaintiffs allege no federal claims; their only causes of action are based on state statutory and common law. The court is not persuaded that state law claims such as plaintiffs’ are preempted by the Montreal Convention. Additionally, and more fundamentally, the Convention is not applicable here since plaintiffs allege nonperformance of their air transport contract, not mere delay in performance.




For the reasons stated, the court remands the action to Los Angeles Superior Court forthwith.

Flowers v. Entergy Corp.

Court of Appeal of Louisiana,

First Circuit.

Randall Darren FLOWERS



No. 2008 CA 1926.


Jan. 29, 2010.






Plaintiff, Randall Darren Flowers, and intervenor, the Fire and Casualty Company of Connecticut (FCC), appealed a judgment rendered in conformity with the jury’s verdict in favor of the defendants, Entergy Louisiana, Inc. (Entergy) and Charter Communications, L.L.C. (Charter). After a thorough review of the record, we cannot say that the jury manifestly erred in its verdict or that the trial court abused its discretion in its evidentiary rulings. Thus, we affirm the judgment.


For purposes of this appeal, defendants, who appear in the record under various names, are initially identified as Entergy Louisiana, Inc. and Charter Communications, L.L.C.




On January 5, 2001, in a rural area of Springfield, Louisiana, plaintiff, Mr. Flowers, parked his truck, and an attached trailer belonging to a customer, on a driveway leading to his residence and those of other family members, including his uncle, Ellis Martin. The truck and trailer were parked near a pump house located on family property. Mr. Flowers customarily used the pump house as a source of water to wash the truck and trailer before and after hauling trips for customers. On the day of the accident, Mr. Flowers, who was five feet, six or seven inches tall, climbed on top of the trailer, which was approximately thirteen feet, four inches in height, resulting in a total height of over nineteen feet. While on top, he used a hose, bucket, and long-handled wooden brush to wash the truck and trailer. While washing the trailer, Mr. Flowers came in contact with an electric distribution or power line and was severely injured.


The hot power line, or conductor, and an accompanying neutral power line, which carried no voltage, were maintained by Entergy. The poles also carried a cable line that had been subsequently attached below the two power lines by Charter’s predecessor, apparently without the utility’s permission. All the lines ran parallel to the driveway from its entrance at Willie Coates Lane  until the driveway forked in an area just past the pump house, with one fork leading to Mr. Flowers’ residence and the other to Mr. Martin’s house. At the fork, the lines partially crossed the driveway.


From a pole on Willie Coates Lane near the driveway to the last pole on the driveway, the lines ran a distance of approximately three hundred fifty-five feet.


Willie Coates Lane was a short dead-end road about one quarter of a mile long.


Mr. Flowers sued Entergy and Charter. The workers’ compensation carrier, FCC, intervened seeking reimbursement of benefits paid to Mr. Flowers.


Prior to trial, Charter filed a motion in limine seeking to exclude testimony regarding acts it considered to be remedial measures. The trial court granted the motion and excluded the testimony.


Plaintiff also filed a motion in limine requesting that any accident reconstruction evidence from Entergy’s expert, Mr. Frederick M. Brooks, be excluded. Plaintiff argued that Mr. Brooks was not qualified as an accident reconstructionist. After a hearing, the trial court denied plaintiff’s motion.


A transcript of the hearing is not contained in the record on appeal.


At trial, Mr. Flowers testified that he usually parked near the pump house, but he did not remember exactly where he parked on the day of the accident or the details of the accident. Admittedly, he knew about the power lines, but said that he never paid any attention to them. When asked about a recorded report to medical personnel that he fell and then hit the power line on the way down, he denied the report, but, when pressed, he repeated that he did not remember the details of the accident.


His uncle, Mr. Martin, testified that he found Mr. Flowers on the ground near the back of the trailer, which was parked near the pump house, the water source used to wash equipment. Mr. Martin modified his earlier deposition testimony by noting that the sketch he used to show where he found Mr. Flowers was not to scale and that the pump house and the place where Mr. Flowers fell were closer to the fork than shown on the sketch. Mr. Martin had noticed that the lines were low, but he had never experienced any trouble driving trucks under the lines.


At trial, plaintiff’s expert, Mr. Robert Taylor Nethken, was qualified and accepted as an expert in electrical engineering and electrical forensic engineering, with an expertise with the National Electric Safety Code (Code). He testified that the Code was not adopted as a law in Louisiana, but was relied on by utilities for minimum safety standards including heights of lines under various conditions encountered under the lines. The purpose of the Code was to provide safe clearance heights for equipment passing underneath power lines and to ensure the safety of people who were required to work under or around the lines.


Further, Mr. Nethken testified that the power lines were placed in 1982, with the top line, the conductor, at a height of approximately twenty-eight feet, with a mid-span sag to twenty-four feet, five inches. In an earlier deposition, Mr. Nethken approximated Mr. Flowers’ contact point with the conductor as being close to the pump house, in an area where the lines ran parallel to and near the driveway. Mr. Nethken measured the height of the conductor at that point to be seventeen feet, ten inches. However, he explained that he had misunderstood some information received from Mr. Martin. Although he did not know the precise location of the point of contact with the conductor, by the time of trial, Mr. Nethken believed that the accident probably occurred fifteen or more feet closer to the fork than his original estimate. Also, the new position was closer to mid-span, which was the lowest point on the line and the measurement at mid-span was sixteen feet, eight inches. However, in Mr. Nethken’s opinion, the accident could be reconstructed based on the available information.


Mr. Nethken also opined that the Code required the entire line between poles to be no lower than the lowest point allowed for a particular category. Mr. Nethken testified that the controlling section of the 1997 Code, which was applicable to the accident, was section 232-1, category three for driveways. Under that section, eighteen and one-half feet was the minimum height allowed. Thus, the measurement at mid-span of less than seventeen feet did not meet the Code requirements. It was Mr. Nethken’s theory that, while the power lines had originally been set at a height that met the Code, the later attachment of the heavier cable line caused the poles to lean in, thereby lowering all of the lines between the two poles, especially at mid-span, which was the lowest point. In his opinion, Entergy should have noticed that the lines were too low and should have added guy lines and an intermediate pole for support.


Although the Code did not recommend or require any particular schedule for inspections, Mr. Nethken considered once every two years to be prudent. However, he believed that if Entergy had performed better inspections, it would sooner have discovered the lines were too low. Thus, he concluded that defendants breached their duty by causing or allowing the lines to be too low.


On cross-examination, Mr. Nethken admitted that the Code did not contemplate clearances for men washing a truck or trailer, while standing on top a trailer either under or near power lines. He also agreed that Mr. Flowers had a duty to himself and it was dangerous for Mr. Flowers to wash the truck or trailer so close to the power line.


At trial, the voir dire of Entergy’s expert engineer, Mr. Frederick Brooks, revealed Mr. Brooks’ credentials and qualifications, including his expertise in accident reconstruction, the area of dispute in plaintiff’s motion in limine and at trial. Mr. Brooks testified that he had conducted close to a thousand investigations into accidents where people or equipment had contacted power lines. The investigations were conducted in half a dozen states and the majority included accident reconstruction work. Mr. Brooks explained that a reconstruction analysis involved applying engineering and scientific principles to the facts and circumstances of the case. Mr. Brooks also testified that he was a member of the committee that writes the Code. He stated that he had taught seminars on how to investigate an accident and on how to use the Code. Further, Mr. Brooks had qualified in other courts as an expert in engineering, engineering safety, the Code, and accident reconstruction.


After voir dire, Mr. Brooks was tendered as an expert in electrical engineering, Code interpretations, and accident reconstruction. The trial court accepted Mr. Brooks as an expert in the fields in which he was tendered.


Mr. Brooks agreed with Mr. Nethken that a two year inspection was appropriate. In Mr. Brooks’ opinion, Entergy’s inspections were acceptable.


Based on information received from Mr. Martin and Mr. Flowers, Mr. Brooks located the place where the trailer was most likely parked and measured the height of the power line at the same point of contact between Mr. Flowers and the conductor originally chosen by Mr. Nethken. However, Mr. Brooks obtained a measurement of seventeen feet, five and one-half inches, rather than the higher seventeen feet, ten inches testified to by Mr. Nethken in his deposition and in various filings by plaintiff before trial.


Mr. Brooks testified that the Code helped in maintaining “insulation by isolation.” In areas where it was reasonably anticipated that either truck traffic would be driving under power lines or people were required to be working under or near lines, the workers or truckers were insulated by the area of isolation created by the height of the line.


Based on Mr. Brooks’ understanding of the Code, which was echoed by an Entergy employee, the nature of the ground below a section of the line determined which category of clearance heights was applicable. Mr. Brooks referred to the same section or table used by Mr. Nethken, section 232-1, but explained that the different categories along the side of each column identified the nature of the surface below the lines. Specifically, the caption for the categories, which ran along the side of the table, read “Nature of surface underneath wires, conductors, or cables.” The categories also contemplated certain types of activities that could be expected or anticipated based on the nature of the ground. The columns, which ran along the top of the table, were divided into various types of wires and specified whether the wires were insulated or non-insulated.


Mr. Brooks believed that the category for a road in a rural district where it was not likely that truck traffic would be anticipated by Entergy was more appropriate for the area of the accident than the category allowing for the crossing of a driveway by reasonably expected truck traffic. Mr. Brooks explained his choice of category, as follows:


The considerations were observation[s] of the physical conditions that exist and at this particular location [which were] trees, brush, and a fence line. I take that is sufficient to utilize category 10 …, and we’re talking about a specific area. I’m not talking about the front of the property or the back of the property. But in this area[,] where he was parked and working, it’s unlikely that vehicles would be crossing, crossing under the line. Crossing is a word too that has a meaning. It means crossing, not necessarily pulled parallel under the lines, but actually it contemplates like a tractor coming out of a field and crossing under the line to get on a road where no driveway exists, that’s a good example.



The safety clearance that is specified … contemplates a certain activity. So if you’re going over a roadway or a driveway where there’s truck traffic, the clearance would be higher because the activity contemplated is of a larger vertical dimension. If you’re in an area where … only a pedestrian could walk or a pickup truck or a car, a vehicle under eight feet high, that’s the activity that’s contemplated, the clearance can be lower…. If you’re crossing a railroad track, the clearance has to be higher. You look at the activity in the area of inquiry of where you’re interested in and you apply the code for that activity that occurs in that area and the nature of the land in that area.


Mr. Brooks noted that the Code does not have a category for everything, thus one must apply what is reasonably closest to the circumstances. Category three was for lines crossing over a road or driveway, but the Code had no specific category for lines running parallel to a driveway in a rural district. Based on his analysis of the activity that would be reasonably expected in the residential, rural area of the accident, with rural being defined in the Code as all places not urban, Mr. Brooks believed that category 10, not category 3 chosen by Mr. Nethken, was the best fit. Category 10 was for roads not heavily traveled in a rural district. The minimum height for the conductor under the Code for a category 10 setting would be sixteen and one-half feet.


Mr. Brooks disagreed with Mr. Nethken’s interpretation of the Code and how it was to be applied. In Mr. Brooks’ opinion, Mr. Nethken’s consideration of the spacing between the various lines, which was meant for the safety of men working on the lines, and measurements only at the lowest point of the line, rather than in the area of the accident, was the wrong analysis. Mr. Brooks testified that under the Code, lines had multiple clearance requirements based on the nature of the underlying surface. For example, a line crossing over a road has one clearance, but further up on the same line that crosses a soybean field, the requisite clearance would be lower. In Mr. Brooks’ opinion, the conductor in the area of the accident did not violate the Code, and it was Mr. Flowers who had breached the insulation by isolation heights applicable to the area where he fell. From his visit to the area and pictures taken after the accident, Mr. Brooks found the area of the accident was bordered by brush and a fence that kept vehicles or trucks on the driveway and made it impossible to pass under the line running along the driveway near the pump house.


In reconstructing the accident, Mr. Brooks visited the scene of the accident and testified that he spoke to Mr. Flowers and made a rough sketch based on that conversation. According to Mr. Brooks, Mr. Flowers said that he was parked near the pump so that he could use the water hose. Mr. Flowers also said that he was on the back of the trailer at the time of the accident. After speaking with Mr. Martin, who witnessed the accident, and taking measurements, Mr. Brooks refined the positioning of the trailer extrapolated from his original rough sketch. Based on his application of science and engineering principles to the information received from Mr. Flowers, Mr. Martin, and the post-accident statements by Mr. Flowers made to medical personnel about the fall, Mr. Brooks opined that the trailer was parked on the hard surface of the driveway about three feet from the power lines, that Mr. Flowers fell off of the trailer, and that, as he was falling, contacted the conductor. Thus, even if defendants were found liable, they were liable only for the injuries caused by the contact with the energized power line, and not for the more serious injuries resulting from or connected to the fall to the ground.


Representatives of Entergy testified that Entergy did not expect the lines to stay at the initial placement heights, and its intention was to follow the Code’s suggestions for clearances. As to inspections, Entergy expected its repairmen and meter readers to observe the lines and call in violations or problems whenever they were out in the field. The line riders who monitor for signal leakage on an annual basis are also expected to observe the lines. Those inspections coupled with customer reports comprised Entergy’s inspection system, which it believed met the standards.


With a vote of 10 to 2, the jury answered “NO” to the following question on the jury verdict form as to both defendants: “Do you find that there was fault on the part of the defendant, …, which was a legal cause of the injuries suffered by the plaintiff, Randall Darren Flowers….?”


In conformance with the jury verdict, the trial court entered a judgment dismissing plaintiff’s suit and the intervention of FCC. Plaintiff and FCC appealed.


On appeal, the plaintiff assigns the following errors:


1. The jury erred in applying the doctrine of assumption of risk in finding that simple negligence by Mr. Flowers barred his recovery.


2. The jury committed manifest error in failing to find that defendants’ non-compliance with Entergy standards and the Code was a cause-in-fact of the accident.


3. The trial court abused its discretion in allowing Mr. Brooks to testify based on his accident reconstruction.


4. The trial court erred in prohibiting plaintiff from presenting evidence on the resagging of the line post-accident.


The intervenor, FCC, assigns the same errors and makes essentially the same arguments as plaintiff.


Specifically, on the issue of the post-accident actions and expert testimony, plaintiff argues that these erroneous evidentiary rulings by the trial court tainted the jury’s verdict and the appeal must be conducted de novo. On the issue of liability, plaintiff argues that defendants did not take the necessary steps to insure that the conductor remained at its original height or at the minimum safe height required by the Code of eighteen and one-half feet. If the conductor had been at the requisite height, Mr. Flowers would not have contacted the conductor and been severely injured. Thus, the defendants breached their duty of protection, which included a duty to protect people working on top of trucks, defendants’ negligence were a cause-in-fact and legal cause of the fall and injuries, and defendants are liable for all damages. And finally, Mr. Flowers argues that his simple negligence did not bar his recovery.


Defendants argue that the jury was not clearly wrong because the record supports a finding that the lines met the minimum standards, thus no breach occurred, and that acts or failure to act by defendants were not the legal cause of the accident or injuries. Defendants also assert that the record contains no basis to believe that the jury considered or found an assumption of the risk by the plaintiff as the reason for its findings and that the trial court was correct in its ruling excluding testimony concerning a subsequent remedial measure and its ruling allowing Mr. Brooks to testify as an accident reconstructionist. Thus, the judgment should be affirmed.






Evidence of measures taken after an event, which would have made the event less likely to have happened, is not admissible to prove negligence or culpability. However, subsequent measures can be used for another purpose. LSA-C.E. art. 407. The trial court is granted broad discretion in such evidentiary rulings, and its determinations will not be disturbed absent a clear abuse of that discretion. Rideau v. State Farm Mutual Automobile Insurance Company, 2006-0894, p. 6 (La.App. 1 Cir. 8/29/07), 970 So.2d 564, 572,writ denied,2007-2228 (La.1/11/08), 972 So.2d 1168. When the trial court rules that the testimony is inadmissible, a proffer can be made. LSA-C.C.P. art. 1636. So that the argument can be properly assessed on appeal, it is incumbent upon the party who asserts the error to make a proffer. If he fails to do so, he cannot contend that the evidentiary exclusion was error. Engineered Mechanical Services, Inc. v. Langlois, 464 So.2d 329, 340 (La.App. 1 Cir.1984), writ denied,467 So.2d 531 (La.1985); see Our Lady of the Lake Regional Medical Center v. Helms, 98-1931, p. 11 (La.App. 1 Cir. 9/24/99), 754 So.2d 1049, 1056,writ denied,99-3057 (La.1/7/00), 752 So.2d 863.


At trial, plaintiff proffered the following testimony from Mr. Brooks on the specific issue of the post-accident raising, apparently called resagging, of the lines:


Q. And my question to you is, after the lines were resagged to twenty-four and a half feet or thereabouts, didn’t it later sag from that height, I’m talking about the conductor, sag to twenty-two feet, six inches by June 2007?


A. I don’t know. I never went back out.


Plaintiff argues that the resagging of the lines, without the support offered by the addition of guy lines and placement of an intermediate pole, caused the lines to sag again. Because the raising of the lines did not solve the problem, it was not a repair and did not qualify as a remedial measure. In addition, according to plaintiff, the testimony was not meant as proof of a remedial measure, but as an impeachment of Entergy’s testimony on its intended actions if it had known about the amount of sag. The proffered testimony was also to be used to show that the rate of sag was so slow that Mr. Flowers and Mr. Martin were lulled into a false sense of security about the height of the lines.


After reviewing the limited proffered testimony, and based on this record, we cannot say that the trial court abused its discretion by disallowing the evidence or that the absence of the proffered evidence prejudiced the presentation of the plaintiff’s case or interdicted the jury’s decision process.




Plaintiff, Mr. Flowers, essentially argues that Mr. Brooks was not qualified to testify as an accident reconstructionist. We disagree.


“If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.” LSA-C.E. art. 702. Ultimately, the trial judge’s decision to admit or exclude expert testimony is subject to the abuse of discretion standard of review. Bethley v. Keller Construction, 2001-1085, p. 7 (La.App. 1 Cir. 12/20/02), 836 So.2d 397, 403,writ denied,2003-0228 (La.4/21/03), 841 So.2d 792.


The record before us does not contain the transcript of the hearing held on plaintiff’s motion in limine. However, based on the qualifications and experience related during the voir dire at trial, the trial court could have reasonably found that Mr. Brooks’ testimony would be of use to the factfinder and admissible based on the witness’s experience, skill, and training. For these reasons, we find no error in the trial court’s denial of plaintiff’s motion to disallow Mr. Brooks as an expert in accident reconstruction.


As an aside, we note that Mr. Brooks’ reconstruction speaks to the timing of the contact with the power lines in relation to the fall. If Entergy had been found liable, the sequence of the fall and the contact may have determined whether Entergy was responsible for all the injuries, or just those from the electrical shock and not the fall. However, the sequence had no real bearing on the issue of liability. Having found that Mr. Flowers failed in his burden to show error in the jury’s verdict on legal cause, the accident reconstruction testimony, even if erroneously admitted, has been rendered moot.






The correct standard of review by the appellate court for findings of fact is manifest error. In other words,


a trial court’s factual findings will not be upset unless they are manifestly erroneous or clearly wrong. Ferrell v. Fireman’s Fund Insurance Co., 94-1252, pp. 3-4 (La.2/20/95), 650 So.2d 742, 745. Under this rule, the issue to be resolved by a reviewing court is not whether the trier of fact was right or wrong, but whether the fact finder’s conclusion was a reasonable one.   Stobart v. State, Department of Transportation & Development, 617 So.2d 880, 882 (La.1993). If the factual findings are reasonable in light of the record reviewed in its entirety, a reviewing court may not reverse even though convinced that had it been sitting as the trier of fact, it would have weighed the evidence differently. Id. at 882-883.


When the findings are based on determinations regarding the credibility of witnesses, the manifest error-clearly wrong standard demands great deference to the findings of fact, for only the fact finder is cognizant of the variations in demeanor and tone of voice that bear so heavily on the listener’s understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840, 844 (La.1989). Where documents or objective evidence so contradict the witness’s story, or the story itself is so internally inconsistent or implausible on its face that a reasonable fact finder would not credit the witness’s story, a reviewing court may well find manifest error even in a finding purportedly based upon a credibility determination. Id. Where such factors are not present, however, and a fact finder’s determination is based on its decision to credit the testimony of two or more witnesses, that finding can virtually never be manifestly erroneous or clearly wrong. Id. The rule that questions of credibility are for the trier of fact applies equally to the evaluation of expert testimony, including the evaluation and resolution of conflicts in expert testimony. Lasyone v. Kansas City Southern Railroad, 00-2628, p. 13 (La.4/3/01), 786 So.2d 682, 693.


Foley v. Entergy Louisiana, Inc., 2006-0983, pp. 9-10 (La.11/29/06), 946 So.2d 144, 153.




In Foley, the Louisiana Supreme Court utilized the following analytical process for cases involving overhead power lines:


In cases of injury occurring as a result of contact with overhead power lines, principles of negligence, rather than absolute or strict liability, apply, and we assess the liability of the various parties to the accident under a duty-risk analysis. Hebert v. Gulf States Utilities Company, 426 So.2d 111, 114 (La.1983); Kent v. Gulf States Utilities Company, 418 So.2d 493 (La.1982). To establish the liability of an electric utility company using the duty-risk analysis, the plaintiff has the burden of proving: (1) that the defendant power company owed a duty to the plaintiff; (2) that the power company breached that duty; (3) that the power company’s conduct was a cause-in-fact of the plaintiff’s injuries; (4) that the power company’s substandard conduct was a legal cause of plaintiff’s injuries; and (5) that the plaintiff suffered actual damages. Perkins v. Entergy Corporation, 00-1372, 00-1387, 00-1440, p. 7 (La.3/23/01), 782 So.2d 606, 611;Fowler v. Roberts, 556 So.2d 1, 4 (La.1989)on reh’g,556 So.2d at 13 (La.1990); Fleniken v. Entergy Corporation, 00-1824 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1184,writ[s] denied, 01-1268, 01-1305, 01-1317 (La.6/15/01), 793 So.2d 1250, 1253, 1254.


In Simon v. Southwest Louisiana Electric Membership Corporation, 390 So.2d 1265, 1267 (La.1980), we summarized the duty of an electric utility company in cases involving injury sustained through contact with high voltage lines. Given the inherently dangerous nature of electricity, we held that electric companies that use and maintain high voltage power lines are required to exercise the utmost care to reduce hazards to life as far as is practicable. Id. If it should be reasonably anticipated that persons may come into contact with electric lines, the owner and/or 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. Id. However, an electric company is not under a duty to safeguard against occurrences that cannot be reasonably expected or contemplated: “[O]perators 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.” Simon, 390 So.2d at 1268. When an accident or occurrence could not have been reasonably anticipated, it is not within the scope of the duty owed by the electric company to the injured party because there is no ease of association between the risk presented by the electric company’s conduct under the overall circumstances and the resulting injury. Hebert, 426 So.2d at 114.


Nevertheless, an electric company is held to the standard of a reasonable person with superior attributes, and is required to recognize that there will be a certain amount of negligence that must be anticipated. See Levi v. Southwest Louisiana Electric Membership Cooperative (SLEMCO), 542 So.2d 1081, 1084-1086 (La.1989); Pillow v. Entergy Corporation, 36,384, p. 5 (La.App. 2 Cir. 9/18/02), 828 So.2d 83, 87,writ denied,02-2575 (La.12/13/02), 831 So.2d 987. Pursuant to this duty, an electric company has an obligation to make reasonable inspections of wires and other instrumentalities in order to discover and remedy hazards and defects. Levi, 542 So.2d at 1084. This duty includes the obligation to inspect its lines to determine if uninsulated high voltage lines pose a risk of harm, and if the utility relies on insulation by isolation, it has a duty to make certain its lines remain isolated. Hebert, 426 So.2d at 116;Fleniken, 00-1824 at 13, 780 So.2d at 1186.


2006-0983 at pp. 11-12, 946 So.2d at 154-55.


However, in the case of a dangerous condition that was apparent and obvious, the facts may demonstrate that the condition was not unreasonably dangerous in a legal sense. Pitre v. Louisiana Tech University, 95-1466, 95-1487, p. 9 (La.5/10/96), 673 So.2d 585, 590,cert. denied,519 U.S. 1007, 117 S.Ct. 509, 136 L.Ed.2d 399 (1996); Hayes v. Entergy Corporation, 37,190, p. 4 (La.App. 2 Cir. 6/25/03), 850 So.2d 916, 920.


The question of whether a duty exists is a legal one, but the manifest error rule usually applies to the other four issues, including the issue of whether a defendant has breached a duty or whether the breach was the legal cause of the injuries, unless reasonable minds could not differ. Fleniken v. Entergy Corporation, 2000-1824, 2000-1825, p. 10 (La.App. 1 Cir. 2/16/01), 780 So.2d 1175, 1184,writs denied, 2001-1268, 2001-1305, 2001-1317 (La.6/15/01), 793 So.2d 1250, 1253, 1254, citing Fowler, 556 So.2d at 4-5;see also Perkins v. Entergy Corporation, 98-2081, 98-2082, 98-2083, pp. 34-35 (La.App. 1 Cir. 12/28/99), 756 So.2d 388, 412-13 (rehearing granted on other grounds), affirmed, 2000-1372, 2000-1387, 2000-1440 (La.3/23/01), 782 So.2d 606 (In the first circuit opinion in Perkins, this court, after recognizing the uncertainty over the correct standard of review applicable to the question of legal or proximate cause, specifically pretermitted the issue. Perkins, 98-2081, 98-2082, 98-2083 at pp. 30-31, 756 So.2d at 410. However, in the subsequent case of Fleniken, 2000-1824, 2000-1825 at p. 10, 780 So.2d at 1184, the author of Perkins, Judge Weimer, now Justice Weimer, adopted the rule that, for fact intensive cases, legal cause is usually a factual inquiry. A reading of the analysis by Justice Weimer in Foley, 2006-0983 at pp. 10, 25, 27, 946 So.2d at 153, 161, 163, lends support to that position.)




Initially, we note that this case is factually distinguishable from Foley, Fleniken, and Weaver v. Valley Electric Membership Corp., 615 So.2d 1375 (La.App. 2 Cir.1993), which were cited by the plaintiff, Mr. Flowers. While we agree that the duty at issue has been extended to workers on top of houses or trucks, location alone is not sufficient to satisfy a finding of liability. See Fleniken, 2000-1824, 2000-1825 at p. 11, 780 So.2d at 1184. Significantly, Foley involved a roofer repairing an apartment house roof over which electric transmission lines crossed and where another similar accident had occurred some years prior. Foley, 2006-0983 at pp. 1-2, 14, 946 So.2d at 148-49, 155. In Fleniken, a trucker was injured, while standing on top of a trailer, when he came in contact with a power line located above a commercial trucking terminal’s parking pads. The trucker had been conducting a required inspection before leaving the pad and the electrical utility was found to have prior knowledge of the particular circumstances that gave rise to the subsequent contact. Fleniken, 2000-1824, 2000-1825 at pp. 5-6, 12, 780 So.2d at 1181-82, 1185. In the Weaver case, a cotton picker machine used on a 700 acre cotton plantation got tangled in low power lines. The electric utility had escorted the picker to the plantation and had in the past helped the farmers move farm equipment around and under lines traversing various farms, including the cotton plantation. The worker was injured when he attempted to disengage a power line that had become entangled with the cotton picker as it passed under the lines. Weaver, 615 So.2d at 1379-80. Thus, we find Foley, Fleniken, and Weaver to be distinguishable.


In the instant case, Mr. Flowers was not parked in a required area at a commercial trucking facility, where a flow of truck traffic was reasonably foreseeable, was not required by the nature or location of the job to work under a power line, and was not trying to loosen a line that had become entangled with a farm vehicle engaged in working the fields under transmission lines. Rather, Mr. Flowers chose to wash his truck atop the attached thirteen foot, four inch trailer, near a power line running along the driveway to his residence, which was located on a large section of family property in a rural area. Although the exact position of the trailer was contested at trial, all parties seemed to agree that the trailer was parked near the pump house, either near the conductor or almost underneath, depending on which expert was believed as to location.


Nevertheless, notwithstanding the factual differences and similarities in the cases discussed above with this case, the defendants here were responsible for their lines and certainly owed a duty or standard of utmost care to Mr. Flowers. However, the existence of a duty, even one of utmost care, and assuming a finding of cause-in-fact, do not provide a final resolution to the question of liability. To establish liability, all the required elements of negligence must be found.


Of course, after hearing the conflicting testimony on the position of the trailer on the driveway, and the conflicting expert testimony on what category of the Code applied and what constituted safe clearances along the driveway in question, the jury was confronted with a choice. On the issue of safe and appropriate heights, the jury may have accepted the testimony of defendants’ expert over plaintiff’s. Although initial compliance with Code safety standards does not per se relieve a utility of negligence, the jury may have found that the construction standards were not the applicable safety standards, that the heights of the lines met minimum safety standards, that spacing between the conductor and the other lines was not relevant, and that the duty owed was not breached. See Foley, 2006-0983 at p. 18, 946 So.2d at 158. Despite the duty owed to Mr. Flowers, he maintained the burden of proof at trial and, if the jury found no breach, he failed in his burden to prove one of the necessary elements.


On the other hand, the jury may have accepted the plaintiff’s theory and version of the accident, and found that the defendants did breach a duty to plaintiff. However, plaintiff must also have proved that defendants’ breach of duty or substandard conduct was the legal cause of the injuries. In this case, based on the specific wording in the jury verdict, we do know that the jury found that defendants were not the “legal cause” of the injuries, which negated a finding of liability for defendants. Our duty then is to review the entire record to determine whether the jury had a reasonable basis for that finding and that the finding was not clearly wrong. See Stobart v. State through Dept. of Transp. and Dev., 617 So.2d 880, 882 (La.1993).


Substandard conduct or breach of a duty simply does not encompass all risk within its ambit or render the actor liable for all consequential harm “until the end of time.” Perkins, 98-2081, 98-2082, 98-2083 at p. 30 n. 44, 756 So.2d at 409 n. 44. A finding of legal cause requires more than an act of negligence, and can be analyzed on the basis of foreseeability and ease of association between the duty involved and the risk. The extent or scope of the protection is evaluated on a case by case basis to avoid making the defendant an insurer of all persons coming in contact with defendant or defendant’s business. Perkins, 98-2081, 98-2082, 98-2083 at p. 31, 756 So.2d at 410. Thus, a finding in favor of the defendants on the issue of legal cause required the jury to have found that, under the particular facts here, the risk was not known or reasonably anticipated or foreseeable by Entergy or Charter, or, assuming the breach of the duty, no ease of association fell upon the breach and the damage. Given those findings, the risk would not fall within the scope of the duty of care or protection.


As previously noted, this is not a case where a low power line came in contact with a truck or vehicle whose use was reasonably expected in the area, or a scene where a utility should reasonably expect periodic repair or work on a roof or building located under or near power lines. In this case, the record reasonably supports a finding that, even if the defendants were aware that trucks were kept on the family property, Entergy or Charter did not know nor should they have known that Mr. Flowers and Mr. Martin got on top of trucks and trailers and washed them either under or within a few feet of an adjacent power lines running parallel to or over their driveway. There is no evidence that the spot chosen by Mr. Flowers, regardless of which contact location is accepted, was the only spot suitable for washing the truck or that Mr. Flowers had no choice in the location.


Unlike the worker in Weaver, who did what he could to ameliorate the danger encountered when he was tasked with disentangling his farm machine from the power line crossing the cotton field, Mr. Flowers failed to exhibit reasonable care for his own safety by admittedly paying no attention to the nearby power line and choosing that exact location in close proximity to the conductor to wash the tractor and trailer. See Pitre, 95-1466, 95-1487 at p. 16, 673 So.2d at 593. Another location on the property, such as the other side of the driveway where no power lines were located, or the use of a hose three or more feet longer would have obviously been safer and would have eliminated the risk of a man on top of the trailer coming in contact with the power line, either directly or after falling. See Hayes, 37,190 at p. 8, 850 So.2d at 921-22.


On the issue of assumption of risk, we disagree with the plaintiff’s argument that the jury’s rejection of defendants’ liability, and assessment of 100% of the fault to plaintiff, required the use of the discarded principle of assumption of the risk. We find no basis or reason in this record to believe that the jury employed such a principle. In contrast, the record sufficiently supports the jury’s failure to assess comparative negligence, a concept explained by the trial court in the jury instructions.


From our review, the record provided the jury a reasonable basis for finding that Entergy or Charter could not have reasonably foreseen or anticipated plaintiff’s choice of location for his chosen activity. Even if the duty or standard of care was breached by the height of the power line, the risk that materialized is not easily associated the breach. Plaintiff’s choices, in the absence of any requirement other than the plaintiff’s convenience, may simply have been too attenuated and removed from the purpose or scope of the duty for the jury to find the defendants at fault for the particular accident, under the particular circumstances present. Thus, the risk was not contemplated by or within the scope of the breached duty, and therefore, not the legal cause of the injury. Given the evidence presented at trial, even if we may have found differently, we cannot say that such a finding was clearly wrong or unsupported by the record. Accordingly, we find no error in the jury verdict in favor of the defendants or the judgment dismissing plaintiff’s suit and FCC’s intervention.


The jury may even have compared the total height of Mr. Flowers and the trailer at over nineteen feet and realized that he would have still been above a conductor placed at Mr. Nethken’s minimum safety height of eighteen and one-half feet.


For these reasons, we affirm the judgment. The costs of appeal are assessed equally to Mr. Randall Flowers and Fire and Casualty Company of Connecticut.




WELCH J., concurs without reasons.

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