Abby Gail Garcie v. City of Natchitoches

STATE OF LOUISIANA

COURT OF APPEAL, THIRD CIRCUIT

18-546

NOT FOR PUBLICATION

ABBY GAIL GARCIA

VERSUS

CITY OF NATCHITOCHES, ET AL.

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APPEAL FROM THE
TENTH JUDICIAL DISTRICT COURT
PARISH OF NATCHITOCHES, NO. 86682
HONORABLE LALA B. SYLVESTER, DISTRICT JUDGE

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SYLVIA R. COOKS
JUDGE
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Court composed of Sylvia R. Cooks, Shannon J. Gremillion, and Phyllis M. Keaty,
Judges.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART.

T. Taylor Townsend
T. Taylor Townsend, LLC
P.O. Box 784
Natchitoches, LA 71458-0784
(318) 238-6103
Attorney for Appellant, Abby Gail Garcia

Ronald E. Corkern, Jr.
Corkern, Crews, Guillet & Johnson, LLC
P.O. Box 1036
Natchitoches, LA 71457-1036
(318) 352-2302

Attorney for Appellee, City of Natchitoches

James A. Mijalis
Lunn Irion Law Firm, LLC
P.O. Box 1534
Shreveport, LA 71165
(318) 222-0665
Attorney for Appellee, Scallion Heating,
Air Conditioning, and Electrical, Inc.

COOKS, Judge.

FACTS AND PROCEDURAL HISTORY

Abby Gail Garcia (Garcia) purchased a vacant house in Natchitoches and

hired the services of JTD Construction (JTD), general contractor, to handle the

remodel of her newly acquired home. Jim Davis (Davis), Garcia’s uncle, was in

charge of the project and obtained a building permit from the City of Natchitoches

(City). JTD subcontracted the services of Scallion Heating, Air Conditioning, and

Electrical, Inc. (Scallion) to perform the electrical and heating/cooling system

upgrades to the residence. Scallion determined that the existing underground

electrical supply to the residence was inadequate to meet the needs of the planned

improvements. The City issued a building permit for the project on November 26,

2012, and renovations began shortly thereafter. In the process of renovating the

residence Scallion installed a new meter base and new breaker box. The City was

responsible for providing electrical service from its transformer to the residence for

the new overhead service and for disconnecting the old underground service to the

old meter base on the residence.

On December 6, 2012, the City’s building inspector, Johnny White (White),

inspected Scallion’s installation of the new weather-head and riser pole at the

residence. The work passed inspection and White affixed a green sticker to the new

meter base. Scallion’s representatives at the residence, Brad Calvert (Calvert) and

Danny Thomas (Thomas) were present for the inspection. At that time, they

informed White they had removed the old meter and secured the wires on the old

meter base. They also informed White that the old underground service to the

residence was still “hot” meaning it had not been disconnected from the City’s utility

pole. White assured them he would put in a work-order directing the old service be

disconnected at the same time as the new overhead service would be connected.

White issued a work-order dated December 10, 2012, expressly instructing the

City’s personnel to “pull overhead service line to new service riser and meter” and

to “disconnect [the] old service.” On December 17, 2012, a crew of workmen for

the City electrical department performed the work necessary to connect the new

overhead service to the residence from the City electrical source. Despite the

instruction in the work-order, the City’s crew did not disconnect the old underground

service to the residence but instead left it “hot.”

Calvert and Thomas intended to remove the old meter base after completing

the startup of the new air conditioning equipment, but when they attempted to do so

they discovered the City had not disconnected the old meter base from the City’s

electrical source. Calvert informed White that the City workers had not

disconnected the old source. White assured him he would address the situation.

Scallion completed its work at the residence on December 28, 2012. Garcia took up

residence in her newly renovated home, despite the fact that Davis did not request a

final inspection of the project from the City. On January 24, 2013, Garcia was doing

some work in her flower beds and decided she wanted to remove the unsightly old

meter base and its riser pole from her house. She telephoned Davis and asked if it

was safe for her to remove the old meter box and pole. Davis, without knowing

whether the old service was disconnected or not, but assuming it was, informed her

it was safe to proceed. Garcia began pulling on the riser pole, moving it back and

forth attempting to pull it away from the house and out of the ground. She heard

“rumbling” sounds from the ground and felt the ground “shaking.” When she

allegedly saw sparks and smoke coming from the pole, she immediately turned loose

of the pole fearing for her safety. Garcia was frightened by the event, and, along

with Sharon Durham (Durham), phoned 911. A City utility worker, Lee McKinney

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(McKinney), responded immediately to the call. After confirming that the old

service line to Garcia’s residence was still “hot,” McKinney disconnected the old

electrical service line from the City power source. Later that evening Garcia drove

herself to Natchitoches Regional Medical Center where she sought medical attention

in the emergency room. She informed the ER doctor that she believed she was

suffering from electrical shock. The doctor found no visible signs of electrical shock

or any injury and discharged Garcia with instructions to see her normal physician if

necessary.

Several days later when Durham was again at Garcia’s residence, Garcia

solicited Durham’s help to support her allegation that she suffered an electrical shock

during her attempt to remove the old riser pole. According to Durham, Garcia

offered to pay her monetary compensation in return for Durham confirming in

writing that Garcia suffered an electrical shock while trying to remove the old riser

pole. According to Durham, she refused Garcia’s offer because Garcia was not

shocked during the incident and acknowledged as much at the time of the event.

Durham was subsequently terminated from her job by Garcia who was her

supervisor at the time.

Garcia filed suit against the City and Scallion but asserted no claim against

JTD or her uncle, Davis. Garcia alleged she suffered an electrical shock during the

incident of January 24, 2013 at her home and that this caused aggravation to her pre-

existing medical conditions. Following a bench trial, the trial court found JTD 100%

liable for the accident and found Garcia was not physically injured as any result of

the accident. The trial court awarded Garcia $3500 for the fear and mental anguish

she suffered during the incident. Garcia appeals the trial court judgment alleging

four assignments of error as follows:

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1. The Trial Court erred in finding that Abby Garcia’s injuries were
not caused by the City of Natchitoches, nor Scallion Electric (sic)
breach [of] their duty to her.

2. The Trial Court erred in its allocation of fault under the Watson (sic)
Factors.

3. The Trial Court erred in its finding that Abby Garcia’s injuries were
not caused by the electrical shock she sustained on January 24, 2013.

4. The Trial Court erred in awarding damages by awarding Ms. Garcia
only nominal damages, given the nature of the electrical shock
injury Ms. Garcia sustained, and the strong evidence of wrongdoing
on the part of defendants.

LEGAL ANALYSIS

Liability

After a thorough review of the record we find the trial court erred in assigning

100% liability to JTD. As the provider of electrical services, the City owed a “high

degree of care” to Garcia as its customer. Weaver v. Valley Elec. Membership Corp.,

615 So.2d 1375, 1381 (La.App. 2 Cir. 1993). The Louisiana Supreme Court has

described the duty of suppliers of electricity to their customers as requiring them “to

exercise the utmost care to reduce hazards to life as far as practicable.” Hebert v.

Gulf States Utils. Co., 426 So.2d 111, 114 (La.1983) citing Simon v. Southwest La.

Elec. Membership, 390 So.2d 1265 (La.1980) and Nessmith v. Central La. Electric

Co., 257 So.2d 744 (La.App. 3d Cir.), writ denied, 261 La. 480, 259 So.2d 921, 922

(1972) (emphasis added).

A power company is held to the standard of a reasonable person with
superior attributes, and is required to realize that there will be a certain
amount of negligence that must be anticipated. Green v. Claiborne
Elec. Co-op., Inc., 28,408 (La.App.2d Cir.6/26/96), 677 So.2d 635.

Accordingly, a power company has an obligation to make
reasonable inspections of wires and other instrumentalities in order to
discover and remedy hazards and defects; consequently, a company
will be considered to have constructive knowledge of
an electrical hazard which has existed for a period of time which would
reasonably permit discovery had the company adequately performed its

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duties. In re New Orleans Train Car Leakage Fire Litigation, 00-0479
(La.App. 4th Cir.6/27/01), 795 So.2d 364.

Pillow v. Entergy Corp., 36,384, pp. 5-6 (La.App. 2 Cir. 9/18/02), 828 So.2d 83,

87, writ denied, 02-2575 (La. 12/13/02), 831 So.2d 987 (emphasis added).

Although our courts have established this high degree of care, the

determination of negligence on the part of the provider of electrical services is

addressed under La.Civ.Code art. 2316. It has not been treated as strict liability.

Nevertheless, our courts have held that: “A presumption of foreseeability through

constructive knowledge of the risk of an electrical hazard existing for a reasonable

time has made the negligence standard of ‘utmost care’ virtually indistinguishable

from strict liability.” Weaver, 615 So.2d at 1381.

The Civil Code addresses negligence, a species of tort liability, in
Article 2316, which states that “[e]very person is responsible for the
damage he occasions not merely by his act, but by his negligence, his
imprudence, or his want of skill.” See Myers v. Dronet, 01–5 (La.App.
3 Cir. 6/22/01), 801 So.2d 1097. In order to prevail in a negligence
cause of action brought under La.Civ.Code art. 2316, an aggrieved
party must meet the following five-pronged test, as outlined by a panel
of this court in Myers, 801 So.2d at 1104:

(1) the delictual conduct was the cause-in-fact of
the damage or injury; (2) the defendant owed the
plaintiff a duty under the specific circumstances
of the particular case; (3) the particular
defendant breached the duty which s/he owed
the particular plaintiff; (4) the risk and resulting
harm stood within the scope of protection of the
defendant's duty; and (5) the plaintiff showed
actual damage.

Vermilion Par. Police Jury v. Albert, 03-1420, p. 4 (La.App. 3 Cir. 3/3/04), 867

So.2d 67, 70.

There can be no question here that the City’s failure to de-energize the supply

line from its transformer to Garcia’s residence was a cause-in-fact of the incident.

The testimony established only the City had the authority, responsibility, and ability

to de-energize the supply of electricity from its transformer to Garcia’s residence.

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Neither the homeowner, Davis, nor Scallion possessed the expertise, authority, or

wherewithal to de-energize the underground power line. Scallion did the most that

it could do to fulfill its duty to Garcia when it disconnected service from the old

meter box into the residence and taped up the wires to ensure no one would get

shocked if they tampered with the meter box. Additionally, the City’s failure to

follow through on its own work-order directing its workers to disconnect the

electrical supply from its source of power to Garcia’s residence further evidences its

negligent behavior. The City provides an excuse for its failure to disconnect the old

service on its first visit made to Garcia’s residence for that purpose, i.e., no one was

present at the residence on that date. But the City had months of opportunity to re-

visit the residence while the electricians were working on the jobsite and no excuse

is offered for their failure to do so. Likewise, the City’s reliance on the failure of

Davis or Garcia to request a final inspection of the home before occupancy does not

excuse the City’s negligence and complete failure to do its job. The City owed a

duty to Garcia to make sure the old service to her residence was disconnected after

it installed and energized the new service to her residence. It breached this duty to

Garcia when it failed to de-energize the old underground service to her residence.

Even after Scallion informed the City that the old service was not de-energized the

City failed to disconnect the old service, despite having many weeks to do so on any

given day of the week, and despite its supervisor’s promise to see that it would be

done. Additionally, the risk that a homeowner would come into contact with the

energized old service line was well within the scope of the City’s heightened duty to

safeguard its customer from such an occurrence. Thus, we find the City is

comparatively at fault for the incident.

We also find the trial court correctly determined that Garcia was not

comparatively negligent in causing the incident. In Hebert, 426 So.2d at 1381, the

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appellate court found no contributory negligence on the part of the plaintiff who

came into contact with a high voltage wire. The appellate court explained:

Working near electrical power lines is neither contributory
negligence per se nor assumption of the risk. Likewise, the fact that a
person’s own actions bring him in contact with high voltage wires does
not necessarily make him negligent. The question, as enunciated
in Dyson v. Gulf Modular Corporation, 338 So.2d 1385 at 1390
(La.1976) is whether “the party’s conduct conform[ed] to the standard
of care that would be exercised by a reasonable man; or did the conduct
breach a duty imposed upon the party to protect against the particular
risk from which the accident resulted?” In other words, did the plaintiff
Hebert breach a duty to himself by failing to avoid the unreasonable
risk created by the defendant utility company? We find that he did not.

....

As aptly stated in Hall, supra at 799:

When the party charged with the responsibility of
observing safety factors fails to do so, it is grossly unjust
to place the blame for a resulting accident on the person
who poured the last cup of water before the defective dam
broke, unless that person also exercised a substantial
amount of knowledgeable control over the dangerous
situation. There was no such knowledge or control by
plaintiff in the present case.

Likewise, Garcia exercised no knowledge or control over the dangerous

situation created by the City’s failure to disconnect the old underground service, as

it had the sole responsibility to do. The City’s utility personnel visited Garcia’s

home on multiple occasions and had ample opportunity to de-energize the old

service. The meter was removed from the old meter box and a meter was installed

on the new meter box with a green approval tag affixed to the new meter by the City

indicating to the homeowner that the electrical service was now being provided to

her home through the new overhead line and new meter box. Garcia could not

know—nor should she have assumed—that the City had failed to follow its own

work-order for her service disconnect and failed to exercise the heightened

responsibility it owed to safely provide electrical power to her home. As we have

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already noted, Garcia had no control over the de-energizing of the service to her

home. Moreover, Garcia exercised more than reasonable caution in contacting

Davis, her contractor, to inquire as to whether it was safe for her to remove the old

riser pole and meter base from her residence.

Generally, negligence is defined as conduct which falls below
the standard established by law for the protection of others against an
unreasonable risk of harm. Dobson v. Louisiana Power and Light
Company, 567 So.2d 569 (La.1990). A particular unforeseeable risk
may be included within the scope of a duty if the injury is easily
associated with the rule relied on and with other risks of the same type
that are foreseeable and clearly within the ambit of protection. Forest
v. State, thru La. Dept. of Transportation, 493 So.2d 563 (La.1986).

In reviewing a determination that negligence exists, the
reviewing court must consider the ease with which it can associate the
duty owed and the risk encountered, whether the breached duty was a
substantial cause and whether the risk is reasonably foreseeable.
See, Sibley v. Gifford Hill and Co. Inc., 475 So.2d 315 (La.1985);
Dunne v. Orleans Parish School Board, 463 So.2d 1267 (La.1985).

Vermilion Par. Police Jury, 867 So.2d at 70-71, quoting Maeder v. Williams, 94-

754 (La.App. 4 Cir. 11/30/94), 652 So.2d 1005, writ denied 94-3150 (La.3/10/95),

650 So.2d 1177 (emphasis added).

Garcia’s attempt to disconnect the old, unsightly, riser pole and meter box

from her residence once the new overhead service had been activated was reasonably

foreseeable and the ease of association between Garcia’s action and the City’s duty

to de-energize the old service is too clear for further comment.

We also find the trial court did not err in finding Davis1 negligent in telling

Garcia that it was safe for her to proceed in light of the admitted fact that he did not

know whether or not the old service was de-energized by the City. His negligent

behavior is further exemplified by the fact that, according to his own testimony, he

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“In any action for damages where a person suffers injury, death, or loss, the
degree or percentage of fault of all persons causing or contributing to the injury,
death, or loss shall be determined, regardless of whether the person is a party to the
action or a nonparty. . .” La.Civ.Code art. 2323.
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telephoned Scallion to inquire as to whether it was safe for Garcia to proceed and

was told it was not. He offered no explanation as to why he did not attempt to contact

Garcia and warn her not to proceed. We find Davis’ actions were a contributing

cause of the incident. But, as we have explained, Davis was not solely at fault, and

the trial court erred in finding him 100% liable. We find the City and Davis are each

50% contributorily negligent for the incident experienced by Garcia.

Damages

The fifth element which a court must determine in negligence cases is whether

a plaintiff suffered any damage as a result of a defendant’s negligence. The trial

court found Garcia was not electrocuted and suffered no injury as the result of any

electrocution. Our thorough review of the record finds no manifest error in the trial

court’s ruling in this regard.

The standard of review which we must apply in examining the
factual conclusions of a trier of fact was articulated by our Supreme
Court in Rosell v. ESCO, 549 So.2d 840 (La.1989), and recently
reiterated in Stobart v. State, Through Department of Transportation
and Development, 617 So.2d 880 (La.1993):

A court of appeal may not set aside a trial court’s or a
jury’s finding of fact in the absence of “manifest error” or
unless it is “clearly wrong.” Rosell v. ESCO, 549 So.2d
840 (La.1989). This court has announced a two-part test
for the reversal of a factfinder’s determinations:
1) The appellate court must find from the record that a
reasonable factual basis does not exist for the finding of
the trial court, and
2) the appellate court must further determine that the
record establishes that the finding is clearly wrong
(manifestly erroneous).

. . . [T]he issue to be resolved by a reviewing court is not
whether the trier of fact was right or wrong, but whether
the factfinder's conclusion was a reasonable one.

....

Even though an appellate court may feel its own
evaluations and inferences are more reasonable than the
factfinder’s, reasonable evaluations of credibility and

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reasonable inferences of fact should not be disturbed upon
review where conflict exists in the testimony. Rosell v.
ESCO, 549 So.2d 840 (La.1989); Arceneaux v.
Domingue, 365 So.2d 1330 (La.1978). . . Nonetheless, this
Court has emphasized that “the reviewing court must
always keep in mind that ‘if the trial court or jury’s
findings are reasonable in light of the record reviewed in
its entirety, the court of appeal may not reverse, even if
convinced that had it been sitting as the trier of fact, it
would have weighed the evidence differently.’ ” Housley
v. Cerise, 579 So.2d 973 (La.1991) (quoting Sistler v.
Liberty Mutual Ins. Co., 558 So.2d 1106, 1112 (La.1990)).

Oxley v. Sabine River Auth., 94-1284, pp. 4-5 (La.App. 3 Cir. 10/19/95), 663 So.2d

497, 502, writ denied, 96-64 (La. 2/28/96), 668 So.2d 357, and 95-3090 (La.

2/28/96), 668 So.2d 368.

In its reasons for judgment the trial court explained that it did not find Garcia’s

testimony credible. For the most part, Garcia’s testimony regarding her allegation

that she was electrically shocked when she tried to remove the old riser pole was

contradicted by lay and expert witnesses. Her own treating physician could not

establish that any of the medical problems Garcia was experiencing after the incident

were a result of her being shocked. He acknowledged these complaints were all

longstanding and although he testified that some of her pre-existing conditions could

be exaggerated by a sufficient electrical shock, he could offer no independent

evidence of such shock. He testified he relied solely on Garcia’s representation to

him that she thought she was shocked. He further admitted he had no specialized

knowledge about electrical shock but relied only on his general understanding of the

effects that a sufficient amount of electricity could have on a person if they were

shocked. He also admitted he did not know what would constitute such a sufficient

amount of electricity to result in injury or exaggeration of pre-existing injuries. He

admittedly saw no physical evidence that Garcia was electrocuted, and the ER

records indicate the same. Additionally, two witnesses testified that Garcia told

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them at the time of the event and shortly thereafter that she was not electrocuted

during the incident, only very frightened. Defendant’s expert gave extensive and

compelling testimony demonstrating why it was not scientifically possible for Garcia

to have been shocked during the incident and no evidence was presented to

contradict his expert testimony. The trial court also said it found Durham’s expert

testimony creditworthy. As an eye witness to the incident, she testified that Garcia

attempted to elicit false testimony on her behalf regarding the allegation that she was

electrocuted during the incident. Based on her personal observations of Garcia’s

physical activities, Durham also contradicted Garcia’s allegation that she was

physically affected by the alleged aggravation of her existing medical problems. We

find no basis in the record to disregard the trial court’s credibility determinations in

this regard nor in any other.

The trial court did, however, find Garcia suffered brief emotional distress as

a result of the incident. Here, too, we find no manifest error in the trial court’s ruling.

Durham corroborated this fact as did other lay witnesses present shortly after the

incident. And it is not hard to imagine that the rumbling sounds underground and

the sight of water and smoke coming from the old riser pipe as Garcia rocked it back

and forth would be a frightening experience. We note in this regard Garcia did not

seek immediate medical attention but decided much later in the day to drive herself

to the local hospital to be checked out. The medical report from the emergency room

indicates there were no visible signs of injury and no need for any immediate medical

treatment recommending only that Garcia visit her private physician if or when she

deemed it necessary. We reiterate too, Garcia suffered from longstanding pre-

existing medical problems and her complaints to the ER doctor are consistent with

previous complaints due to those conditions. Nevertheless, Garcia has, to this extent,

proven the fifth element necessary to recover damages as a result of the City and

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Davis’ negligence. The record supports the trial court’s award of damages for the

fright Garcia experienced as a result of the City and Davis’ negligence, and we

cannot say the award is abusively low.

Decree

For the reasons stated, we reverse the trial court judgment on liability and

hereby assign fault 50% to Davis and 50% to the City of Natchitoches. The City is

therefore liable to pay Garcia 50% of the damages awarded in the court below.

Because the City is a political subdivision of the State of Louisiana court costs may

only be awarded as a specified sum. We have found the City 50% liable, we

therefore assess one-half the costs of this appeal in the amount of $3,379.95 against

the City of Natchitoches.

JUDGMENT AFFIRMED IN PART AND REVERSED IN PART
(NOT DESIGNATED FOR PUBLICATION)

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