We are presented in this case for the first time following our decision in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982) the need to review a case involving injuries to a worker who made contact with electrical transmission lines. The facts involved in this case are distinctly different from those involved in Kent. For the reasons which follow, we find merit in the plaintiff's position and reverse the judgment of the district court and the Court of Appeal.
The petitioner, employed by Southern Structures, Inc. to erect a metal building for Kelly R. Parrino in a Baton Rouge industrial park, was injured when a twenty foot piece of angle iron he was holding contacted a power line owned and maintained by the defendant, Gulf States Utilities Company.
Because we agree that the trial jury and the appellate court neglected to weigh properly the respective legal duties of the worker and the utility company in this electrocution case, we reverse the rulings of the lower courts, render judgment in favor of the plaintiff and remand the cases to the district court for a determination of damages.
To put the facts of this litigation in proper perspective, we begin a narration of events some time before the accident which severely injured the plaintiff, Brownie Reed Hebert.
Plaintiff had been trained as an iron worker and employed in the construction of metal buildings for Southern Structures for one and a half years before the accident, during which time he was promoted to "pusher" (foreman of a crew). He had participated in the construction of approximately twenty such metal buildings. These buildings were erected by first constructing a metal skeleton and then fastening metal wall and roof sheets to the skeleton. The property on which this particular metal building was constructed is part of an industrial park in Baton Rouge and was located between the last and the second to last electric utility poles on a distribution line for businesses in the vicinity. The rear of the slab on which the building was to be erected backed directly onto a servitude which contained four overhead electrical lines: three of them were energized with 7,620 volts of electricity; the fourth, above and to the middle of the other three, was neutral. A company spokesperson testified later at the trial that the lines were insulated by "isolation, by elevation," since they were "out of the practical reach of people." While the lines were 26.4 feet from the ground, the line nearest the proposed building was horizontally only 3.45 feet away, vertically only 9.5 feet away and diagonally a little more than ten feet from the highest point of the metal skeleton of the building. Such distances conformed to the national standards for the industry at the time the electrical line was constructed, although they are inadequate according to today's standards.
It was four days later on the following Monday that Hebert sustained the severe injuries which touched off this litigation. That morning he had to place and secure a twenty foot metal fascial angle
The jury by a nine to three vote returned a verdict in favor of the defendant. The questions posed to the jury were: "(1) Do you find in favor of the plaintiff, Brownie Reed Hebert? (2) Do you find in favor of the defendant, Gulf States Utilities? (3) If the answer to # 1 is Yes, what amount do you award the plaintiff?" The jury merely answered # 2 in the affirmative. Thus the jury's answer to the court's interrogatories did not reveal whether their verdict in favor of Gulf States Utilities was because of an absence of fault on the part of the utility company or because of plaintiff's contributory negligence notwithstanding Gulf States' fault.
One of plaintiff's arguments on appeal was that Gulf States was negligent and that the jury erred in finding otherwise. The Court of Appeal pretermitted this issue of Gulf States' fault and focused instead upon plaintiff fault which would, if found, bar recovery in any event. Hebert, supra at 834.
We have just recently had occasion to consider the principles of tort liability which apply when injury occurs as a result of contact with overhead power lines. In Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), a majority of this Court rejected the suggestion that absolute liability be imposed upon the utility company.
In deciding in favor of the utility in Kent, however, because of the peculiar and unusual facts of that case, we did not intend to diminish in any way the high degree of care that Louisiana courts have required of those who deal in the manufacture and distribution of electricity. See generally: Stone, Tort Doctrine § 395 in 12 Louisiana Civil Law Treatise 519.
Electric transmission companies which maintain and employ high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable. Simon v. Southwest La. Elec. Membership, 390 So.2d 1265 (La.1980); 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). However, an electric utility is not required to guard against situations which cannot reasonably be expected or contemplated. Simon, supra.
In Simon and in Kent, a majority of the Court found that the accident in each case could not reasonably have been anticipated. It was not within the scope of the duty owed by the defendant utilities to the injured plaintiffs, because there was no ease of association between the risk presented by the utilities' conduct under the overall circumstances and the resulting injuries. Hall v. Lundin & Associates, Inc., 260 La. 542, 256 So.2d 620 (1972).
One of the two Simon decedents was fatally shocked when a forty-two foot drilling pipe he was removing at ground level from a well hole touched an overhead power line 26.7 feet above the ground. The second decedent succumbed to shocks sustained in trying to rescue the first by picking up the drilling pipe with his hands. In Kent, the accident occurred when the thirty foot aluminum pole the victim was using in an unorthodox fashion
Here the facts are distinctly different. Unlike Kent where there were involved workers, construction supervisors, the highway department and the utility company, only two parties in this case essentially could have prevented this accident: the utility company and the busy workman, Hebert. Furthermore this accident occurred in an industrial park where the construction of metal buildings was commonplace. In fact earlier the same year, on or about January 19, 1977, another worker had been injured by coming in contact with the high voltage line while installing roof purlins for a metal building in the same industrial park. The means and methods of construction on the Parrino site were customary for the industry and those usually employed by Southern Structures and the plaintiff Hebert. Moreover, the risk is different for one assigned to work fifteen feet above the ground and atop a structure which is within ten or eleven feet of the power line, than for ground level workers who must use extraordinary means to contact the overhead electrical lines. Therefore the risk that an iron worker placing a twenty foot metal fascial angle on the top outside of a metal building will be injured by electrocution by inadvertently touching a power line at most only eleven diagonal feet away from his work place comes within the scope of the utility's duty to exercise the utmost care to reduce hazards to life as far as practicable. The duty of the defendant electrical utility was meant to protect this plaintiff worker from this type of harm (electrocution) arising in this manner (constructing a metal building in an industrial park).
Did Gulf States Utilities breach their duty to Brownie Reed Hebert? The three-fold duty of the utility in cases where injury is easily associated with the transmission of electricity over high power lines, as set forth in Simon, supra, is (1) to insulate the lines, or (2) to warn adequately of the danger, or (3) to take other proper and reasonable precautions to prevent injury. Gulf States Utilities maintains that the power lines were properly insulated and that Hebert was adequately warned of the dangers so that other precautions against injury were not necessary. Their argument is not convincing.
The lines, according to the defendant utility, were "insulated by isolation." Isolation in this sense means that the lines because of their location were not readily accessible to people. The lines were suspended 26'4" from the ground, with a horizontal and vertical clearance of 3.45' and 9.5' respectively from the nearest part of the building. These distances satisfied the minimum industry requirements when the lines were erected. [The distances have subsequently been increased, so that such clearances are no longer in compliance. See note 2, supra] However mere compliance with safety standards does not, per se, relieve the utility of negligence. Simon, supra; McKowen v. Gulf States Utilities Co., 358 So.2d 675 (La.App. 1st Cir.1978).
In proper perspective, the power line was only about four feet above and three feet away from the head of a six foot worker standing, as was Hebert, on top of the end wall rafter. Furthermore these national standards are for already constructed solid wall buildings without windows facing the servitude. That margin of safety is a far cry from that needed for a building under construction. The construction of a building involves, as in this case, an ongoing work site with workers and activity above, below and around the skeleton of the building. The national clearance standards for an already completed solid wall structure without a window facing the servitude can hardly render solace to the utility in the case of an industrial accident resulting from the construction of the building itself. Additional
Insulation by isolation is maintained until something intervenes. Just as time, climate, blows or other circumstances may deteriorate rubber insulation coating a wire, so insulation by isolation may deteriorate with a changing environment. In this case after the construction of the power lines and with the advent of the construction of the metal building, the potential existed for the deterioration of the insulation by isolation. Then, such a deterioration or invasion of the insulation by isolation actually occurred in this case and was brought to the utility's attention when, four days before the accident resulting in injury, a crane in use on the construction site hit and knocked out service temporarily. Thus the defendant utility had specific knowledge of the risk of harm attending work at this construction site. At that point the utility could no longer fulfill its duty by maintaining the status quo and those protective measures which had previously been deemed sufficient to avoid accidents at this work place. Their duty then was to take reasonable measures to assure that workers legitimately in the area were able to work without unreasonable risk of harm.
The defendant contends that their conservative response of shutting down the electricity until work with the crane was completed and of warning the plaintiff Hebert and receiving his assurance that there would be no further problems with the crane, were sufficient to absolve them of any responsibility thereafter for injuries resulting from accidental contact with the lines. We do not agree that the utility company's response was adequate. It should have been evident even after the crane use was completed that the workers in the incipient stages of building construction would need to push and lift structural sections of metal in close proximity to the high voltage power lines.
McKnight, an accident investigator and safety supervisor for thirty-four years and the utility's representative at the accident site, had the professional background and years of experience with electricity to assess realistically the potential hazards of the situation given the type of buildings, the fact that the building was under construction at an incipient stage, and the proximity of the building frame to the high power line.
Therefore, the defendant utility company was in the better position to avert the consequences of an electrical accident on the job and should have taken other proper and reasonable precautions to prevent injury. At trial, experts differed over the ease with which the preventive options could have been implemented. Four not unrealistic possibilities, however, included: de-energizing the entire line adjacent to the construction site, de-energizing the two nearest lines and feeding the transformer from the line most distant from the construction; re-routing the energy supply so as to service other customers from the opposite end and de-energizing the span immediately adjacent to the work site; and placing temporary insulation similar to rubber hoses or snakes on the line. The utility company unquestionably had it within their power to make the site a safer place at which to work. It was the utility company which had the greater options, the greater knowledge, the direct control over the source of injury.
Hebert on the other hand, had no control over the transmission of the electricity despite a defense contention that he could have requested that the power be turned off while the job was completed. To expect Hebert to have so requested is unrealistic, given his position only as a work crew pusher for the construction company and considering that the Gulf States' safety inspector himself re-energized those lines upon conclusion of the crane's use at the construction site.
The defense argues additionally that there was a safer way to raise the twenty foot metal fascial angle.
In assessing negligence and contributory negligence in a particular case, we do not necessarily require identical conduct of the plaintiff and the defendant. "Varying factors affect what the standard of the reasonable man requires. For example, the defendant may have had more information than the plaintiff concerning the risk involved..." Hall v. Hartford Accident & Indemnity Co., 278 So.2d 795 (La.App. 4th Cir.), writ denied, 281 So.2d 753 (La.1973). See also: Canter v. Koehring, 283 So.2d 716 at 728 (La.App. 4th Cir.1973), writ refused, 260 La. 857, 257 So.2d 432 (1972); Helminger v. Cook Paint and Varnish Co., 230 So.2d 623, at 628-29 (La.App. 3d Cir.1970); Allien v. Louisiana Power and Light Co., 202 So.2d 704 (La.App. 3d Cir.), cert. denied, 251 La. 392, 204 So.2d 574 (1967). We find therefore that the defendant utility company owed the plaintiff Hebert a duty to protect him from the risk of harm from electrocution and that the defendant utility breached that duty.
Did plaintiff's conduct preclude his recovery? 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.
Hebert had no part in deciding where to locate the metal building. No attempt was made by his superiors or the utility company to minimize the dangers of electrocution. His alternatives were "to try to tell his superior[s] how to run the job or to quit." Tirante v. Gulf States Utilities Co., 412 So.2d 128 at 133 (La.App. 4th Cir.) writ denied, 414 So.2d 389 (La.1982) quoting Chaney v. Brupbacher, 242 So.2d 627 at 631 (La.App. 4th Cir.1970). As discussed earlier, the method used to raise the angle iron was not unorthodox and had been effectively and efficiently used in the past without unfortunate incident. The beam on which Hebert was standing was unsteady, in large part because the fascial angle that Hebert was attempting to position was not yet screwed in place. Nor had the wall sheets been installed. The unsteadiness of the end wall rafter, then, made it difficult to balance, and Hebert was, in effect, attempting to use the angle iron itself in part to maintain his balance by holding it in the middle with ten feet to either side of his hands and body. It is evident from the testimony that Hebert was concentrating on keeping his balance. Therefore while he was generally aware of the danger of working around electrical power lines, he was not specifically aware of the immediate danger presented
Therefore Hebert's actions should not have barred his recovery for injuries sustained in this work accident. The jury was clearly wrong. In so finding, we are not oblivious to the deference that should be given the determination of the district court. Canter v. Koehring, 283 So.2d 716 (La.1973). Nonetheless the constitutional scope of review of the Supreme Court in civil cases extends to both law and facts. La. Const. art. 5 § 5(C). In the instant case, we give less credence to the outcome in the district court because the jury charges given probably contributed to the result favorable to the defense. Those instructions did not include a significant legal principle which, as evident from this opinion, was especially relevant to the jury's proper consideration of the varying elements of responsibility between the utility company and the plaintiff workman. Plaintiff requested a specific jury instruction based upon the Hall case (to which reference has earlier been made in this opinion) and the standards for assessing negligence and contributory negligence in situations involving industrial safety. The judge refused, contending that the import of the requested charge was included in his general instruction. It was not.
For the foregoing reasons, the judgments of the lower courts is reversed; the case is remanded for the determination of damages.
REVERSED AND REMANDED.
DIXON, C.J., concurs.
WATSON, J., concurs in the result.
MARCUS, J., dissents and assigns reasons.
MARCUS, Justice (dissenting).
I am unable to say that the jury verdict in favor of Gulf States in this factual case was clearly wrong. Accordingly, I respectfully dissent.