Gordon S. Cormier v. Entergy Louisiana, LLC

STATE OF LOUISIANA
COURT OF APPEAL, THIRD CIRCUIT

24-341

GORDON S. CORMIER

VERSUS

ENTERGY LOUISIANA, LLC

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APPEAL FROM THE
FOURTEENTH JUDICIAL DISTRICT COURT
PARISH OF CALCASIEU, NO. 2016-4476
HONORABLE ROBERT LANE WYATT, DISTRICT JUDGE

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ELIZABETH A. PICKETT
CHIEF JUDGE

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Court composed of Elizabeth A. Pickett, Ledricka J. Thierry, and Wilbur L. Stiles,
Judges.

REVERSED AND RENDERED.

Christine Shannon
Entergy Services, LLC
PO Box 2951
Beaumont, TX 77704
(409) 981-2535
COUNSEL FOR DEFENDANT- APPELLANT:
Entergy Louisiana, LLC

Ryan N. Ours
Attorney At Law
446 North Blvd., 2nd Floor
Baton Rouge, LA 70808
(225) 339-3235
COUNSEL FOR DEFENDANT- APPELLANT:
Entergy Louisiana, LLC

Barry Alwin Roach
Michael H. Schwartzberg
Larry A. Roach, Inc.
2917 Ryan St.
Lake Charles, LA 70601
(337) 433-8504
COUNSEL FOR PLAINTIFF- APPELLEE:
Gordon S. Cormier

V. Ed McGuire, III
Plauché, Smith & Nieset
P. O. Drawer 1705
Lake Charles, LA 70602
(337) 436-0522
COUNSEL FOR DEFENDANT- APPELLEE:
Calcasieu Parish Police Jury

PICKETT, Chief Judge.

Entergy Louisiana, LLC, appeals a judgment of the trial court finding it

liable for damages sustained by Gordon Cormier when he fell into a hole in the

right of way adjacent to East Tank Farm Road in Calcasieu Parish.

FACTS

On April 19, 2016, Mr. Cormier was assisting with a rice-farming operation.

He was directing the driver of an eighteen-wheeler as the vehicle backed into a

driveway off East Tank Farm Road. As he walked backward next to the driveway,

he fell into a hole. Mr. Cormier had to be lifted out of the hole and suffered

injuries as a result of the fall. Mr. Cormier did not see the hole, as it was in an area

where the grass was high. At the surface, the hole measured between twelve and

sixteen inches and it was approximately four feet deep.

Mr. Cormier filed a timely Petition for Damages against Entergy Louisiana,

LLC (“Entergy”). Mr. Cormier alleged that an unknown employee of Entergy dug

the hole Mr. Cormier fell into and then failed to fill the hole when it was not used

to install a pole. He sought damages for the injuries he suffered. Entergy

answered, denying the allegations of the petition and asserted its right to a trial by

jury.

Entergy filed a Motion for Summary Judgment arguing that it did not have a

duty to the plaintiff as a matter of law. Entergy claimed that it did not have

custody or garde of the premises at the site of the incident, as that property was

owned and maintained by the Calcasieu Parish Police Jury (CPPJ). Thus, it was

not liable under the provisions of La.Civ.Code art. 2317.

Mr. Cormier then filed a First Supplemental and Amending Petition for

Damages adding the Calcasieu Parish Police Jury as a defendant. The

supplemental petition alleged that the CPPJ had custody of the site, and there was a

leak in the seam of the culvert below the hole which caused the hole to erode. The

CPPJ denied the allegations of the petition in its answer and asserted certain

affirmative defenses. It also requested a jury trial.

Mr. Cormier stipulated the value of his claim did not exceed $50,000,

obviating the demand for a jury trial. See La.Code Civ.P. art. 1732(1).1

The CPPJ filed a Motion for Summary Judgment, arguing that Mr. Cormier

could not meet the essential elements of his claim. The trial court heard arguments

on the motions for summary judgment filed by Entergy and the CPPJ on May 12,

2023. The trial court denied both motions for summary judgment on that date and

entered signed judgments in conformity with its oral ruling on June 9, 2023.

Before trial, Entergy filed a Motion to Exclude the Testimony of Plaintiff’s

Expert, Matthew James Crador, alleging that he lacked the requisite knowledge,

skill, experience, training, or education to give opinions about electric utility

design and engineering or electric utility standards, practices or procedures. Mr.

Cormier opposed the motion. After a hearing on August 28, 2023, the trial court

ordered “that Matthew James Crador is not qualified as and shall not be permitted

to testify as an expert regarding the installation and design of electrical distribution

systems.” The trial court did state that it would allow Mr. Crador to testify “about

Entergy’s policies and procedures in place during Mr. Crador’s employment with

Entergy (2014-2017) regarding the placement and installation of utility poles.” At

trial, Entergy renewed its objection to Mr. Crador’s testimony as an expert, and the

trial court reiterated its ruling.

After a three-day trial, the trial court found that the hole into which Mr.

Cormier fell was created by an auger. The trial court further found that Entergy

1
Article 1732 was amended by 2020 La. Act No. 37, § 2, to lower the threshold for a jury
trial to $10,000.
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created the hole. The trial court assessed no fault to the CPPJ. The trial court

found Mr. Cormier was entitled to medical damages of $12,883.98 and general

damages in excess of the jurisdictional limit of $50,000. The trial court’s judgment

awarded Mr. Cormier $50,000 total.

Entergy now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR

Entergy assigns four errors in its brief to this court:

1. The trial court erred in denying Entergy Louisiana, LLC’s Motion for
Summary Judgment based upon lack of custody and garde of the
premises as a matter of law.

2. The trial court erred in law finding Entergy Louisiana, LLC
maintained garde over the premises for years after it allegedly
performed work.

3. The trial court erred in finding that Entergy Louisiana, LLC created
the hole in question.

4. The trial court erred in allowing Matthew Crador to testify as an
expert regarding the design and installation of electric distribution
lines and poles.

DISCUSSION

We first address the third assignment of error raised by Entergy. Entergy

argues that Mr. Cormier presented no evidence that Entergy created the hole into

which he fell. They argue that the utility pole nearest to the hole was placed in

1996, as evidenced by the markings on the pole. They further point to

uncontradicted testimony in the record that the only reason Entergy ever augers a

hole is to place a new pole, and no new poles had been placed in that location since

1996, so Entergy had no reason to auger a hole so close to a pole already in use.

Entergy also references uncontradicted testimony in the record that the hole in

question was approximately twelve to eighteen inches out of line with the

remaining poles on the line. The uncontradicted testimony was that Entergy would

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not place a pole that far out of line with the remaining poles, as it would cause

strain on the line and cause poles to lean. Further, Entergy claims that the hole

measured at most fourteen inches at the top, as evidenced by the photographs

entered into evidence. The evidence at trial was that the auger used by Entergy at

the time the pole was installed in 1996 was sixteen inches in diameter, and it would

create an eighteen-inch hole. Since the pole was installed, Entergy has transitioned

to using eighteen-inch augers, which would create a twenty-inch hole. Thus, a

fourteen-inch hole could not have been created by an Entergy auger. Finally, the

testimony at trial indicated that holes in the area increase in size over time, they do

not decrease.

We review findings of fact of the trial court under the manifest error

standard of review. Stobart v. State, through the Dep’t of Trans. & Dev., 617

So.2d 880 (La.1993). “[A] reviewing court must do more than simply review the

record for some evidence which supports or controverts the trial court’s finding.

The reviewing court must review the record in its entirety to determine whether the

trial court’s finding was clearly wrong or manifestly erroneous.” Id. at 882 (citing

Mart v. Hill, 505 So.2d 1120).

After a review of the entire record, including testimonial and documentary

evidence presented at trial, we note that there is no direct evidence that Entergy

created the hole into which Mr. Cormier fell. Mr. Cormier presented a

circumstantial case. He argued that despite Entergy’s lack of records about the

work performed on the pole specifically and in the area generally, it was clear that

Entergy did work in the right of way near the pole. Mr. Cormier argued that many

poles were damaged in hurricanes in the years between when the pole was installed

in 1996 and the accident in 2016, so either Entergy or contractors working for

Entergy could have created the hole in the ground.
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In its reasons for ruling, the trial court stated, “Entergy has offered no

reasonable hypothesis as to the existence of the hole into which Cormier fell.” In

fact, Entergy offered at least two hypotheses: that the hole was a sink hole caused

by the failure of the seam between the concrete culvert and the metal culvert, or

that the hole was dug by an unknown party while using a smaller auger. The trial

court here impermissibly shifted the burden of proof to Entergy. It was up to Mr.

Cormier to prove that Entergy created the hole. After reviewing the record in its

entirety, we find that he failed to meet that burden. The trial court committed

manifest error in finding Entergy liable.

We turn now to Entergy’s remaining assignments of error. In its first and

second assignments of error, Entergy argues that the trial court erred twice in its

finding that Entergy had custody or garde of the premises where Mr. Cormier fell:

first when it denied Entergy’s motion for summary judgment on the issue, and

again in its finding after a trial on the merits that Entergy was liable for Mr.

Cormier’s injuries. A party may only introduce certain documents for a court to

consider in support of or in opposition to a motion for summary judgment.

La.Code Civ.P. art. 966(A)(4). Because of this limitation, the supreme court has

held that:

once a case is fully tried, the affidavits and other limited evidence
presented with a motion for summary judgment—later denied by the
district court—are of little or no value. Appellate courts should not
rule on appeal after a full merits trial on the strength alone of
affidavits in support of a motion for summary judgment that was not
sustained in the district court. In such cases, appellate courts should
review the entire record.

Hopkins v. American Cyanamid Co., 95-1088, p. 13 (La. 1/16/96), 666 So.2d 615,

624. The issue of Entergy’s custody of the premises was tried on the merits. We

must consider all admissible evidence submitted to the trial court in our review of

the trial court’s ultimate determination that Entergy did have custody of the
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premises. See Durkheimer v. Landry, 22-418 (La.App. 3 Cir. 5/10/23), 366 So.3d

674, writ denied, 23-737 (La. 10/3/23), 370 So.3d 1073, and writ denied, 23-797

(La. 10/3/23), 370 So.3d 1075. The issues raised in Entergy’s first assignment of

error, then, will be considered in reviewing Entergy’s second assignment of error.

To prevail on its claim that Entergy is liable for his injuries, Mr. Cormier

must prove (1) that Entergy had custody of the area in question, (2) that the area

had a defect that created an unreasonable risk of harm, (3) that the defect caused

the harm to Mr. Cormier, and (4) Entergy, as custodian, knew, or in the exercise of

reasonable care, should have known of the defect. La.Civ.Code arts. 2317 and

2317.1; Jones v. Town of Gueydan, 21-11 (La.App. 3 Cir. 6/16/21), 323 So.3d 451,

writ denied, 21-1038 (La. 11/23/21), 328 So.3d 71. In its brief, Entergy claims that

Mr. Cormier failed to prove that Entergy had custody or control, or garde, of the

area where Mr. Cormier fell into the hole.

Mr. Cormier argues that his claim against Entergy was for negligence under

La.Civ.Code art. 2315, not premises liability. But the supreme court has made

clear recently that the analysis is the same under either theory.

Whether a claim arises in negligence under La.Civ.Code art.
2315 or in premises liability under La.Civ.Code art. 2317.1, the
traditional duty/risk analysis is the same. And now, with La.Civ.Code
art. 2317.1’s requirement of actual or constructive knowledge of a
defect, the result under either should be the same. In any event, a
claim under La.Civ.Code art. 2315 typically focuses on whether the
defendant's conduct of allowing an unreasonably dangerous condition
to exist on its premises is negligent, while a La.Civ.Code art. 2317.1
claim focuses on whether the thing itself is defective; i.e.,
unreasonably dangerous. But, when the legislature eliminated strict
liability for defective things in one's custody by adding La.Civ.Code
art. 2317.1, a negligence standard replaced it. The requirements of
actual or constructive knowledge of the defect and proof that the
defendant could have prevented damage from the defect by exercising
reasonable care evidences this shift.

Farrell v. Circle K Stores, Inc., 22-849, pp. 5-6 (La. 3/17/23), 359 So. 3d 467, 473.

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In a premises liability case, this court has long held that a public utility’s

duty to repair a hole it creates in a right of way creates is limited in time. Hartford

Accident and Indemnity Co., Inc. v. South Central Bell Telephone Co., 497 So.2d

1034 (La.App. 3 Cir.), writ denied, 498 So.2d 756 (La.1986). In Hartford, it was

proven that South Central Bell removed a pole five years before the claimant fell

into the hole created by the pole. When the claimant’s employer’s worker’s

compensation insurance provider sued South Central Bell, the trial court found that

South Central Bell did not have garde of the premises and denied recovery. On

appeal, this court affirmed the judgment of the trial court, stating:

Appellant seems to argue that defendants, once having had custody,
retained custody thereafter. This Court, in Norman v. Sorrel, 391
So.2d 496 (3rd Cir.1981) appears to recognize that simply because
one acquired custody or performed an activity on premises at one
time, responsibility for such does not continue indefinitely. This court
found that “… it hardly seems reasonable to hold that a duty persisted
for over a year afterwards.”, and further stated that at some time it
becomes the owner’s duty to correct and discover risk creating factors
on premises over which he has control.

Hartford Accident, 497 So.2d at 1037.

In the case before us, in addition to failing to prove that Entergy created the

hole at issue, Mr. Cormier failed to produce any evidence that the hole was created

within a year of Mr. Cormier’s fall. Additionally, the trial court found that the

owner of the property, the CPPJ, who undisputably did have custody and control of

the premises, did not have a duty to find the hole and correct it. That finding has

not been appealed. Because the evidence presented does not support the trial

court’s finding that Entergy had custody or control of the premises, Mr. Cormier’s

action against Entergy cannot succeed.

Given our finding that assignments of error two and three have merit and

warrant reversal of the trial court’s finding that Entergy is liable for Mr. Cormier’s

damages, we pretermit discussion of the fourth assignment of error.
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CONCLUSION

The judgment of the trial court is reversed. Mr. Cormier failed to prove that

Entergy is legally responsible for the accident which caused his injuries. The

judgment finding Entergy liable is set aside, as is the damage award. Costs of this

appeal are assessed to Mr. Cormier.

REVERSED AND RENDERED.

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