Dwayne Stanton v. Entergy Louisiana, LLC, Sigur Construction, LLC, Ausi Builders & Construction, LLC, Hotel Investors, LLC, and Expotel Hospitality - Him, LLC

DWAYNE STANTON * NO. 2021-CA-0367

VERSUS *
COURT OF APPEAL
ENTERGY LOUISIANA, LLC, *
SIGUR CONSTRUCTION, LLC, FOURTH CIRCUIT
AUSI BUILDERS & *
CONSTRUCTION, LLC, STATE OF LOUISIANA
HOTEL INVESTORS, LLC, *******
AND EXPOTEL HOSPITALITY
- HIM, LLC

APPEAL FROM
CIVIL DISTRICT COURT, ORLEANS PARISH
NO. 2019-01408 C\W 2019-00177, 2019-03860, DIVISION “L”
Honorable Kern A. Reese, Judge
******
Judge Edwin A. Lombard
******
(Court composed of Judge Edwin A. Lombard, Judge Roland L. Belsome, Judge
Paula A. Brown)

Charlsey Wolff
THE LAW FIRM OF WOLFF & WOLFF
2800 Veterans Memorial Blvd., Suite 204
Metairie, LA 70002

COUNSEL FOR PLAINTIFF/APPELLANT

H. Minor Pipes, III
Stephen L. Miles
Patrick J. Lorio
Emily E. Ross
PIPES MILES BECKMAN, LLC
1100 Poydras St., Suite 1800
New Orleans, LA 70163

COUNSEL FOR HOTEL INVESTORS, LLC AND EXPOTEL
HOSPITALITY SERVICES, LLC

Catharine Ohlsson Gracia
Darryl M. Phillips
Sean D. Moore
ENTERGY SERVCIES, LLC
639 Loyola Ave., Suite 2600
New Orleans, LA 70113

COUNSEL FOR ENTERGY LOUISIANA, LLC

AFFIRMED

NOVEMBER 24, 2021

EAL
The Appellant, Dwayne Stanton, seeks review of the November 7, 2019
RLB
judgment of the district court, granting the exception of no cause of action of
PAB
Appellees, Hotel Investors, LLC, Expotel Hospitality-HIM, LLC, and Entergy

Louisiana, LLC. Pursuant to our de novo review, we affirm the judgment of the

district court, finding Mr. Stanton does not state a valid cause of action for which

the law affords a remedy.

Facts and Procedural History

On April 19, 2018, Mr. Stanton, who was an employee of Sunbelt Rental

Scaffold Services, LLC, was working on a construction site in Jefferson Parish

where a Hampton Hotel was being renovated. Hotel Investors is the owner of the

Hampton Inn, which Expotel was operating. Entergy was the utility company

providing electricity for the site. Mr. Stanton witnessed a number of co-workers

on the site get electrocuted when either braces that were being passed along and/or

a portion of scaffolding came in contact with Entergy’s energized power lines. As

a result of witnessing this incident, Mr. Stanton avers that he has suffered serious

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mental anguish and distress, such as anxiety, depression and post-traumatic stress

disorder.

Mr. Stanton filed suit against a number of defendants, including the

Appellees, on February 7, 2019, under case number 2019-1408.1 In his petition,

Mr. Stanton alleged that he was working as a Sunbelt employee when he witnessed

the electrocution of his co-workers at the Hampton Inn construction site:

5.
On the morning of April 19,2018, Plaintiff was in the
course and scope of his employment with Sunbelt
Scaffold Services, LLC when, while passing braces up to
three (3) of his co-workers, one of the braces and/or the
partially erected scaffolding came into contact with
defendant, Entergy Louisiana, LLC’s, power lines which
had not been de-energized, despite the ongoing
renovation project and close proximity of the job and the
scaffolding to the distribution lines, causing plaintiff’s
co-workers to be severely electrocuted. Plaintiff directly
witnessed this traumatic electrocution of his co-workers,
as well as the electrocution of another construction
worker who was using an electric grinder on the ground
at the time of the event.

6.
As a result of witnessing this traumatic event, Plaintiff
has suffered from severe insomnia and depression, and
has been diagnosed with Post Traumatic Stress Disorder
and Anxiety, requiring ongoing medical treatment,
prescription medication, and has further caused
substantial psychological suffering by Plaintiff.

Thereafter, the Appellees filed a motion to transfer venue for forum non

conveniens and exceptions for no cause and no right of action, which were heard

by the district court on May 10, 2019. The district court denied the motion to

1
The case was allotted to Judge Helen Hazeur, Division “A.”

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transfer venue and the exception of no cause of action. However, it granted the

exception of no right of action, and ordered Mr. Stanton to amend his petition

within 15 days under penalty of dismissal. Mr. Stanton timely filed a First

Supplemental and Amending Petition for Damages on May 24, 2019, explaining

that the electrocution accident occurred after a safety meeting about the power

lines. He further described that he was working in an assembly line-like fashion

with the injured workers just prior to their electrocution. Below are the notable

changes:

I.
By amending and replacing Paragraph 5 to read as
follows:

On the morning of April 19, 2018, Mr. Stanton reported
to the Hampton Inn Hotel where he was part of a crew of
laborers assigned to erect scaffolding pertinent to on-
going renovations-taking place at the property. After
participating in a safety meeting with the other members
of his crew, where concerns were raised due to the close
proximity of the power lines to the scaffolding, the group
was advised, and re-assured, that electricity to the power
lines had been disconnected, and that none of them were
in danger of being electrocuted.

II.
By adding Paragraph 5(a) to read as follows:

Upon commencing work, Mr. Stanton participated in an
assembly line configuration to transport scaffolding
components up the partially erected scaffold to be
attached. Without each member being physically
involved in the process, the work could not have been
accomplished. Mr. Stanton was assigned a ground level
position. His duty was to hand components to his co-
worker, who would then hand it off to the next person.
Upon receiving his co-worker’s signal that the coworker
had complete control and possession of it, Mr. Stanton
was to remain visually focused on the component as it

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traveled up the scaffolding and was attached. This was
done to ensure all crew members below a non-attached
component had visual contact with the component should
it begin to fall. Thus, all crew members worked together
to accomplish their objective.

III.
By adding Paragraph 5(b) to read as follows:

After just passing a component to his co-worker, Mr.
Stanton heard a pop, followed by seeing a big flash of
light. He immediately heard an indescribable sound as
electricity passed through the scaffolding which he was
assembling, and then loud popping as it surged through
an extension cord near him being used by another
contractor, and a lightning bolt of electricity arcing off of
the scaffolding, all within a matter of seconds, leaving
Mr. Stanton confused, disoriented, and fearful of what
was happening to him. As he began to hear shouting, he
realized that the scaffolding and/or the component he had
just passed up had come into contact with one of the
power lines previously thought to be de-energized, and
thus, he was careful not to touch any metal components
near the power lines that he had been wrongfully assured
were de-energized.

After amending his petition, the Appellees again filed exceptions of no cause

of action and no right of action.2 Following a hearing, the district court granted

the exception of no cause of action of the Appellees, thereby dismissing Mr.

Stanton’s claims.3

2
Although there were initially three cases involving the accident at issue that were pending in
three different divisions of the district court, including 2019-1408, the cases were ultimately
consolidated with case no. 2019-177 in Division “L,” before Judge Kern Reese. The exceptions
at issue were filed by Appellees Hotel Investors and Expotel and joined by Entergy. Entergy also
filed exceptions of no cause of action and no right of action against Intervenors Sunbelt and
Travelers Property Casualty Company, which the district court granted.
3
The October 18, 2019 hearing transcript reflects the exceptions of no cause of action were the
focus of the hearing, although the Appellees exceptions of no right of action was also pending.
At the conclusion of the hearing, the district court stated that it was “going to grant the
exceptions.” The judgment at issue does not contain a ruling on the exception of no right of
action of the Appellees. “If a trial court's judgment is silent with respect to a claim or issue
placed before the court, it is presumed that the court denied the relief requested.” S.E. Auto
Dealers Rental Ass'n, Inc. v EZ Rent to Own, Inc., 07-0599, p. 13 (La. App. 4 Cir. 2/27/08), 980
So. 2d 89, 99 (citation omitted).

4

This timely appeal followed. Mr. Stanton raises three assignments of error:

1. The district court erred in granting the exceptions of
no cause of action;

2. The district court erred in applying La. Civ. Code art.
2315.6 because Mr. Stanton was not a bystander but
was a participant working in the course and scope of
his employment when the incident at issue occurred;
and

3. The district court erred in failing to apply La. Civ.
Code art. 2315.

Standard of Review

A peremptory exception of no cause of action “tests the legal sufficiency of

the petition by examining whether, based upon the facts alleged in the pleading, the

law affords the plaintiff a remedy.” Koch v. Covenant House New Orleans, 12-

0965, p. 3 (La.App 4 Cir. 2/5/13), 109 So. 3d 971, 972 (quoting Meckstroth v.

Louisiana Dept. of Transp. & Dev., 07-0236, p. 2 (La. App. 4 Cir 6/27/07), 962 So.

2d 490, 492). “The burden of demonstrating that no cause of action has been

stated is upon the mover or exceptor.” City of New Orleans v. Bd. of Comm'rs of

Orleans Levee Dist., 93-0690, p. 28 (La. 7/5/94), 640 So. 2d 237, 253. “No

evidence may be introduced at any time to support or controvert the objection that

the petition fails to state a cause of action.” La. Code Civ. Proc. art. 931.

“Consequently, the court reviews the petition and accepts the well-pleaded

allegations of fact as true.” Credit v. Richland Par. Sch. Bd., 11-1003, p. 7 (La.

3/13/12), 85 So. 3d 669, 674-75 (citations omitted). An “exception of no cause of

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action is a question of law that requires the appellate court to conduct a de novo

review.” Koch, 12-0965, p. 3, 109 So. 3d at 972 (citations omitted).

Exception of No Cause of Action

Although Mr. Stanton raises three assignments of error, the crux of his

appeal is whether the district court erred in applying La. Civ. Code art. 2315.6

when it granted the Appellees’ exception of no cause of action.

The issue presented for review is whether Mr. Stanton’s petition states a

valid cause of action for which the law affords a remedy. The facts alleged in his

petition and supplemental petition reflect that Mr. Stanton seeks recovery for non-

physical injuries— mental anguish and emotional distress— he suffered as a result

of witnessing the electrocution of his co-workers and from narrowly escaping

being electrocuted himself. He maintains that he was a “participant” in the

accident at issue because he was working in an assembly line-like fashion, handing

his co-workers materials, just before they came in contact with the energized line.

The district court, in reviewing this matter, determined that La. Civ. Code

art. 2315.6 was applicable and barred Mr. Stanton’s claim. Article 2315.6, which

was adopted by the Louisiana Legislature in 1991, provides:4 5

4
“This article largely codified the holding in Lejeune v. Rayne Branch Hospital, 556 So.2d 559
(La.1990), in which the court allowed a spouse to recover for the emotional damages sustained
upon entering her comatose husband’s hospital room to discover that he had been bitten by rats.
Lejeune and La. Civ. Code art. 2315.6 have been characterized as the ‘bystander recovery law.’ ”
Morris v. Maryland Cas. Co., 94-1556, p. 3 (La. App. 3 Cir. 5/3/95), 657 So. 2d 198, 199.
5
The First Circuit in Held v. Aubert, 02-1486, pp. 5-6 (La. App. 1 Cir. 5/9/03), 845 So. 2d 625,
630-31, explained how the Lejeune decision lead to the enactment of art. 2315.6:

A cause of action for the emotional distress and mental anguish
suffered by a bystander who witnesses injury to another person or
comes upon the scene soon thereafter was recognized by the

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A. The following persons who view an event causing
injury to another person, or who come upon the scene of
the event soon thereafter, may recover damages for
mental anguish or emotional distress that they suffer as a
result of the other person's injury:

(1) The spouse, child or children, and grandchild or
grandchildren of the injured person, or either the
spouse, the child or children, or the grandchild or
grandchildren of the injured person.

(2) The father and mother of the injured person, or either
of them.

(3) The brothers and sisters of the injured person or any
of them.

(4) The grandfather and grandmother of the injured
person, or either of them.

B. To recover for mental anguish or emotional distress
under this Article, the injured person must suffer such
harm that one can reasonably expect a person in the
claimant's position to suffer serious mental anguish or
emotional distress from the experience, and the
claimant's mental anguish or emotional distress must be
severe, debilitating, and foreseeable. Damages suffered
as a result of mental anguish or emotional distress for
injury to another shall be recovered only in accordance
with this Article. [Emphasis added].

Louisiana Supreme Court in Lejeune v. Rayne Branch Hospital,
556 So.2d 559 (La.1990). In response to the Lejeune decision, the
legislature enacted La. Civ. Code art. 2315.6 in 1991 and codified
the test for recovery that was pronounced in Lejeune. Wartelle v.
Women's and Children's Hospital, Inc., 97-0744, pp. 12–13
(La.12/2/97), 704 So.2d 778, 785. Under Article 2315.6, there are
four basic requirements to recover damages for mental anguish or
emotional distress suffered as a result of another person's injury.
The requirements are as follows: 1) the claimant must have a
specifically enumerated relationship with the injured person; 2) the
claimant must have viewed an event causing injury to the injured
person or have come upon the scene of the event soon thereafter;
3) the harm to the injured person must have been severe enough
that one could reasonably expect the observer to suffer serious
mental distress; and 4) the claimant must suffer emotional distress
that is “severe, debilitating, and foreseeable.” Trahan v. McManus,
97-1224, p. 8, n. 6 (La.3/2/99), 728 So. 2d 1273, 1278, n. 6

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Recognizing that La. Civ. Code art. 2315.6 bars recovery for mental anguish

or emotional distress damages for injuries suffered by others, except under the

criteria prescribed therein, we find that Mr. Stanton does not have a cause of action

under this article because he did not plead that he fits into any of the four requisite

familial categories with the injured workers under La. Civ. Code art. 2315.6 (A).

Mr. Stanton, nevertheless, asserts that he was not a statutory “bystander,”

rather he was a “participant” in the accident. Thus, he asserts his claim is instead

controlled by La. Civ. Code art. 2315.6 Mr. Stanton relies upon Clomon v. Monroe

City School Bd., 90-915 (La. 12/3/1990) 572 So. 2d 571, a decision rendered in the

same year as Lejeune v. Rayne Branch Hospital, 556 So.2d 559 (La.1990), but pre-

dating the enactment of La. Civ. Code art. 2315.6 that codified Lejeune’s bystander

recovery rule.7

Clomon involved a driver, that sued a school board to recover for severe

emotional distress as a result of striking and killing a special needs child after the

child exited a school bus that had no warning devices activated. Id. at 572. “The

6
La. Civ. Code art. 2315, entitled Liability for acts causing damages, provides:

A. Every act whatever of man that causes damage to another
obliges him by whose fault it happened to repair it.

B. Damages may include loss of consortium, service, and society,
and shall be recoverable by the same respective categories of
persons who would have had a cause of action for wrongful
death of an injured person. Damages do not include costs for
future medical treatment, services, surveillance, or procedures
of any kind unless such treatment, services, surveillance, or
procedures are directly related to a manifest physical or mental
injury or disease. Damages shall include any sales taxes paid
by the owner on the repair or replacement of the property
damaged.

7
See notes 4 and 5.

8

school board's bus driver and bus attendant discharged the boy from the bus,

prematurely deactivated the bus warning devices and drove away, leaving the boy

alone to cross the street to his home” just before he crossed the path of the plaintiff

driver. Id. “The trial court held the school board liable for the emotional distress

and subsequent physical and mental illnesses its employees negligently inflicted”

on the driver and this decision was affirmed by the Second Circuit. Id. The

Supreme Court “granted certiorari to determine whether the decisions below were

consistent with” Lejeune’s bystander recovery rule. Id.

The Supreme Court determined that while the driver was barred from

recovering under Lejeune because she was not related to the deceased child, the

driver was nevertheless owed an independent statutory duty by the school board,

one that encompassed protecting against the risk of mental distress. Id. at 575-579.

Moreover, Justice Pike Hall, Jr., in his concurrence, determined that Lejeune was

inapplicable because the plaintiff participated in the accident, she was not a mere

bystander, and the distress she experienced was the result of being involved in a

traumatic event. Id. at 579.

Clomon and its progeny spawned a series of cases where plaintiffs, who

were involved in accidents that caused the deaths or injuries of persons they were

unrelated to, were allowed to recover for their emotional distress because they

were “participants.” Id.; See, e.g., Morris v. Maryland Cas. Co., 94-1556, pp. 3-5

(La. App. 3 Cir. 5/3/95), 657 So. 2d 198, 199-200; Guillory v. Arceneaux, 580

So.2d 990 (La.App. 3 Cir. 1991). In Clomon, the Supreme Court further held that

9

the bus driver violated a statutory duty to exercise due care that was owed to the

“participant” plaintiff driver. Id.at 576-578.

Mr. Stanton avers that a duty was owed to him under the Overhead Power

Line Safety Act, set forth in La. Rev. Stat. 45:141, et seq., because he should not

have been working in close proximity to energized lines. 8 However, in the instant

matter, Mr. Stanton does not address that in Clomon and the cases that followed, a

“participant” has consistently been found to be a party that was actually involved

in bringing about accident, that is to say drivers or train engineers who struck,

injured and/or killed other persons. “Participants” have not been held to be persons

who only witnessed the injuring or killing of others, rather they are directly

involved in causing the injury or death of others. Therefore, Mr. Stanton’s reliance

upon Clomon is misplaced.

Pursuant to our de novo review of the unique facts presented and of the

applicable law, we affirm the granting of the Appellees’ exception of no cause of

action.

8
La. Rev. Stat. 45:142, entitled Ten-foot restriction; prohibited functions or activities provides:

No person shall, individually or through an agent or employee,
perform any function or activity upon any land, building, highway,
waterway, or other premises, if at any time during the performance
of any function or activity it is possible that the person performing
the function or activity shall move or be placed within ten feet of
any high voltage overhead line, or if it is possible for any part of
any tool, equipment, machinery, or material used, handled, or
stored by such person to be brought within ten feet of any high
voltage overhead line or conductor during the performance of such
function or activity.

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DECREE

For the foregoing reasons, the November 7, 2019 judgment, granting the

exception of no cause of action of Hotel Investors, LLC, Expotel Hospitality-HIM

LLC and Entergy Louisiana LLC, and dismissing the petition of Dwayne Stanton,

is affirmed.

AFFIRMED

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