This is a wrongful death action, pursuant to Louisiana Civil Code article 2315.2, by the surviving spouse and five minor children of a tree trimmer, Dwane L. Dobson, who was electrocuted on April 24, 1985 when his metallically reinforced safety rope contacted an uninsulated 8,000 volt electric power distribution line. The trial court awarded the widow and her children $1,034,054.50 in damages, after finding the deceased free of fault and holding the Louisiana Power & Light Company liable in negligence for failure to maintain its right of way, insulate its high voltage distribution line, or give adequate warnings of the line's dangerous nature. The court of appeal affirmed the decree as to the power company's negligence, but reversed in part, reducing the plaintiff's recovery by 70% based on a finding that the deceased had been guilty of fault to that degree. Dobson v. Louisiana Power & Light Co., 550 So.2d 1334 (La.App. 1st Cir.1989).
The facts, as the trial judge found them, were as follows: Dwane L. Dobson, a 29 year old tree trimmer, was electrocuted while attempting to remove a pine tree from the backyard of a house owned by a Mrs. Davidge in Hammond, Louisiana. The tree was located near the rear property line, which was adjacent to a right of way for LP & L's uninsulated high voltage distribution
The LP & L high voltage distribution lines behind Mrs. Davidge's property were installed in 1968 to carry electricity 315 feet from Wardline Road to the University Apartments. The lines were elevated from the road to a point behind the Davidge house and placed underground from there to the apartments. LP & L originally intended that the entire span be buried to serve other commercial purposes but those developments did not occur.
Mrs. Davidge complained many times to LP & L about hazards created by the condition of the elevated lines and the right of way behind her house. She complained about transformers blowing up, limbs falling into the wires, fires caused by trees falling on the lines, and having to call the city fire department to extinguish the blazes. Some time prior to the accident she asked LP & L to remove a pine tree behind her house because it was "spindly" and overhanging the power lines. This was the same tree she later hired Dobson to remove. LP & L rejected her requests because the base of the tree was in her backyard and not in LP & L's right of way. LP & L never came to inspect or remove the tree. During this time LP & L suffered from the lack of adequate funds to properly trim trees in its rights of way in the Hammond area. Also, LP & L had no regular team or program devoted exclusively to the inspection of its lines and rights of way but relied on its employees to watch for dangers as they performed other duties.
Dobson had started his tree trimming service several months before his death. He had no formal training but was learning from hard work, experience and talking with other local tree trimmers. After he accidentally damaged a single residence service line at another location in Hammond, an LP & L representative informed him that LP & L would lower such single unit service lines to facilitate tree trimming and that LP & L would assist him generally in the future. The LP & L representative did not inform Dobson that some of its major distribution lines, unlike its single residence service lines, were uninsulated or that LP & L would lower or de-energize major distribution lines for his tree trimming jobs. The day before Dobson's death he was successful in getting LP & L to lower a single consumer service line during his work. However, because Dobson had no reason to believe that LP & L would have lowered or deenergized the major distribution lines serving the apartment complex to facilitate his removal of the pine tree for Mrs. Davidge, he did not request LP & L to do so.
The trial judge concluded that LP & L was guilty of several negligent acts or omissions that caused the fatal accident: Despite LP & L's constructive and actual knowledge of the dangers created by its uninsulated lines and right of way conditions, it failed to perform adequate inspections of its electric lines, trim or remove the tree or trees creating the hazard, provide insulated covering of dangerous parts of the lines, or place adequate warnings of the high voltage electricity on or near its uncovered wires. Furthermore, the trial judge found that even though LP & L had actual knowledge that Dobson was an inexperienced tree trimmer who would be working near its uninsulated distribution lines in Hammond, the company failed to warn Dobson of the dangers associated with its high voltage distribution lines. With respect to Dobson, the trial judge ultimately found that he did not know of or appreciate the special danger created by the uninsulated overhead high voltage distribution lines; and further that Dobson was not negligent
The trial court's purely factual findings were free of clear or manifest error. For example, its resolution of the most hotly contested factual issue—whether Dobson was unaware that the distribution lines were not insulated—was based on reasonable inferences of fact and evaluations of credibility.
As an important background fact, the evidence clearly established the great disparity of danger between "distribution" lines and "service" lines. "Distribution" lines are uninsulated wires used to deliver very high voltage electricity—as much as 8,000 volts—throughout the community. In contrast, "service" lines are insulated with nonconductive covering and used to transfer much lower voltage electricity from distribution lines to individual dwellings. Despite this great difference in danger, distribution lines carry no special markings or warnings but are black in color and similar in appearance to service lines. Dobson's coworkers and relatives testified that they thought the distribution lines were insulated both because they appeared to have black covering and because birds and squirrels traversed them without harm. Thus, the trier of fact reasonably could have inferred that the distribution line's appearance belied its lethally uninsulated nature and made it difficult for an untrained person to appreciate its fatally dangerous character.
The evidence was in conflict regarding whether Dobson had knowledge of the dangers of the distribution lines. On the one hand, Dobson's coworkers and relatives testified that he was ignorant of the deadly conductivity of the distribution lines, and the plaintiffs' experts were of the opinion that his actions prior to the accident indicated that he was unaware of the danger. On the other hand, a power company trouble-shooter testified that he had talked to Dobson on two occasions prior to the accident and that it was his habit to warn tree trimmers of such dangers and to offer to drop or deenergize power lines for them. In the aggregate, however, the trouble-shooter's testimony was equivocal as to whether he had warned Dobson, specifically, of the absence of insulation on distribution lines or had definitely offered to deenergize them for Dobson's operations.
Nevertheless, we agree with the court of appeal that the trial court made a reversible mistake in concluding that Dobson was free of any fault that caused the accident. Although the trial court did not commit any manifest error or clearly wrong determination in its purely factual findings, it fell into what was essentially an error of law in its approach to the question of whether Dobson was negligent. The crucial mistake was its assumption that, because Dobson had no actual notice or knowledge of the true nature of the uninsulated distribution lines, or the extraordinary hazard they created, he was not required by law to recognize this danger. Any person is required by law to recognize that his conduct involves a risk of causing harm to himself if a reasonable person would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable person would have. Restatement (Second) of Torts § 289(a) (1965). See also Harper James & Gray, The Law of Torts § 16.5 (1986); Prosser & Keeton on Torts § 32 (5th ed. 1984); cf. Levi v. SLEMCO, 542 So.2d 1081 (La.1989). A reasonable person who has an ordinary amount of exposure to the facts of modern life in America should be treated as though he knows that any electrical line could be dangerous. Cates v. Beauregard Elec. Coop., 328 So.2d 367 (La.1976); Coulon v. City of Alexandria, 44 So.2d 171 (La.App. 2d Cir.1950); Harper, James & Gray, supra § 16.5 at 406, 408 n.
We see no error in the Court of Appeal's conclusion that LP & L was guilty of negligence that caused Dobson's death and should be held at least partially responsible for the damages occasioned by the accident. But we granted certiorari because the percentages of fault assigned by the Court of Appeal seemed out of line. Also, we felt called upon to further elaborate a method for determining the degree or percentage of negligence attributable to a person for purposes of reducing recovery due to comparative fault under Civil Code Article 2323. Dobson v. Louisiana Power & Light Co., 559 So.2d 129 (La.1990).
Under our Civil Code, every act of a person that causes damage to another obliges the one by whose fault it happened to repair it. La.C.C. art. 2315. If a person dies due to the fault of another, suit may be brought by the surviving spouse and children of the deceased to recover damages which they sustained as a result of the death. La.C.C. art. 2315.2. For purposes of this liability, a person's fault includes his negligence, imprudence or want of skill. La.C.C. art. 2316. When contributory negligence is applicable to a claim for damages, and a person suffers death as the result partly of his own negligence and partly as a result of the fault of another person or persons, the claim for damages shall not thereby be defeated, but the amount of damages recoverable shall be reduced in proportion to the degree or percentage of negligence attributable to the person suffering the death. La.C.C. art. 2323.
The generally accepted view is that negligence is defined as conduct which falls below the standard established by law for the protection of others against an unreasonable risk of harm. Restatement (Second) of Torts, § 282 (1965); Harper, James & Gray, supra § 16.1 at 381-382; Prosser & Keeton on Torts, § 31 (5th ed. 1984).
We believe that the Hand formula also may be used to measure and compare the negligence or fault of one person with that of another. See D. Sobelsohn, Comparing Fault, 60 Ind.L.J. 413, 421-22 (1985). Indeed, Judge Hand, the author of the test, invoked it to help measure whether a driver's negligence had been gross or ordinary under the Vermont "guest-occupant" law. Moisan v. Loftus, 178 F.2d 148 (2d Cir. 1949). The authors of Harper, James & Gray, The Law of Torts, cogently observe that "[t]he same risk, furthermore, may be avoidable at different sacrifices or other costs by different actors, and the reasonableness or unreasonableness of a failure to avoid that risk may vary correspondingly among those actors." Harper, James & Gray, supra § 16.9 at 481. By the same token, Professor David Sobelsohn has argued persuasively that, "[i]f `fault' means a `departure from a standard of conduct required of a person by society for the protection of his neighbors,' `comparing fault' ought to mean a comparison of the extent to which each party deviated from the applicable standard of conduct." Sobelsohn, supra at 419. See also Comparative Negligence Law & Practice § 19.10[a] at 19-41 (1990).
In Watson v. State Farm Fire & Cas. Ins. Co., 469 So.2d 967 (La.1985) this court adopted the practice of looking to the Uniform Comparative Fault Act for a checklist of some of the various factors that may be relevant in determining the percentage or degree of fault to be assigned to each party. In its comment to § 2, the Uniform Act provides:
UNIF. COMPARATIVE FAULT ACT § 2, comment (1979), 12 U.L.A. 39 (1990).
The Hand formula provides a method for accommodating and weighing all of these factors including the more subjective factors, such as the existence of an emergency, a party's capacity, or his awareness of the risk. Sobelsohn, supra at 421-422. The Hand formula, or balancing process, moreover, helps to "center attention upon which one of the factors may be determinative in any given situation." L. Hand, J. in Moisan v. Loftus, 178 F.2d 148, 149 (2d Cir.1949); see also Washington v. Louisiana Power & Light, Co., 555 So.2d 1350, 1355 (La.1990); Epstien, supra at 157.
It assists us to concentrate here on the costs of the precautions necessary to avoid the accident because the magnitude of the danger caused by the conduct of either Dobson or LP & L was extreme. If the
Confining ourselves to the factor of the cost of taking an effective precaution to avoid the risk, it appears to us that the cost or burden of eliminating the danger would have been greater for Dobson than for LP & L. As we have indicated, the power company had a number of relatively inexpensive, efficacious precautions available to it, e.g., inspection, maintenance, partial insulation, public education and visible warnings. Moreover, there was one particularly effective way in which LP & L could have eliminated the risk at little or no cost—by explicitly warning Dobson about the uninsulated high voltage distribution lines and telling him how to distinguish them from the insulated dwelling service lines. On the other hand, the cost to Dobson, who was ignorant of the characteristics of the uninsulated distribution lines and therefore unaware of their special danger, exceeded the cost to a person with superior capacity and knowledge. An actor with "inferior" capacity to avoid harm must expend more effort to avoid a danger than need a person with "superior" ability. See R. Posner, Tort Law: Cases and Economic Analysis 230-31 (1982); Sobelsohn, supra at 422. A person about to cause injury inadvertently must expend much more effort to avoid the danger than need one who is at least aware of the danger involved. Sobelsohn, supra at 422; Comparative Negligence, supra § 19.10[a] at 19-44. For this reason courts have traditionally cited "awareness of danger" as a factor distinguishing mere negligence from the higher state of culpability commonly known as "recklessness" or "willful and wanton conduct." See e.g., Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1965); Restatement (Second) of Torts § 500 comment g. (1965); Prosser & Keeton, supra, § 34 at 212-14.
In conclusion we believe that, while the magnitude of the risk of harm created by either Dobson or LP & L was great, under the circumstances of the present case, the cost of taking effective precautions to avoid the risk was greater for the tree trimmer than for the power company. This disparity is heightened by the fact that LP & L was clearly in a superior position to avoid the danger. Because the cost of taking effective precautions was significantly less for LP & L than for Dobson, the fault of LP & L was the greater of the two. We do not think that the unreasonableness of LP & L's conduct was so great as to be double the fault of Dobson. But we conclude that a palpable majority of the fault should be attributed to the power company in order to achieve substantial justice in this case. Accordingly, we attribute 60% of the negligence herein to LP & L and 40% to Dobson. Consequently, the recovery of plaintiffs, the surviving spouse and five minor children, will be reduced by 40%.
The decree will be modified as follows. The judgment of the trial court is reinstated except that the principal amount of the judgment, $1,034,054.50, shall be reduced
AFFIRMED IN PART; AMENDED IN PART.
LEMMON, J., concurs and assigns reasons.
MARCUS, J., dissents for reasons assigned by COLE, J.
COLE, J., dissents for reasons assigned.
MELVIN A. SHORTESS, J. Pro Tem., dissents with reasons.
LEMMON, Justice, concurring.
I agree with the majority's treatment of the liability issue. However, I believe that the use of the Watson factors in apportioning fault provides the necessary balancing and flexibility for quantifying each party's deviation from the appropriate standard of care. In my view the Learned Hand test may be more restrictive or confusing and less useful to juries. I therefore concur in the result.
COLE, Justice (dissenting).
I dissent from the majority's decision allocating 60% of the fault to LP & L and 40% to decedent. For the reasons stated herein, I believe decedent's conduct was the sole cause of the accident. A review of the record shows decedent's actions did not conform to the standard of care that would be exercised by a reasonable man.
Uncontradicted testimony in the record shows decedent was warned by LP & L of the dangers of the power line and offered assistance by LP & L. Decedent in fact had sought such assistance on another tree trimming job shortly before his death. Vincent Cavaretta, a utility man with LP & L, testified he encountered decedent on at least two occasions. The first occasion involved an incident where a tree decedent was trimming fell and tore a service drop line which supplied electricity to a house. Cavaretta repaired the line. He informed Dobson to be very careful when working around the lines. He told decedent if he had any problems while working around the lines to contact LP & L first.
On April 18, 1985, decedent contacted LP & L and requested it drop a line supplying power to a street light in preparation for a job on April 23, 1985 (the day before decedent's death).
Decedent apparently understood Cavaretta's warning, since he asked for and received LP & L's assistance on a prior occasion. The actions of decedent on the day of his death goes against plaintiffs' argument that he did not appreciate the dangers posed by the primary distribution line. Dewey Dobson, decedent's brother, testified that one purpose for decedent's rigging of the tag or safety lines was to keep the tree branches away from the power lines. By taking such an action, decedent demonstrated he knew of the existence of the lines and the danger of working around them.
Given this knowledge, Dobson was clearly negligent in not advising LP & L he was working in close proximity to the power lines. Even if he believed the primary distribution line could not be dropped in the same manner as a service line, Cavaretta made it clear to him that there were several alternate methods which would allow decedent to work safely around the line. Decedent's failure to warn LP & L amounted to a gross breach of his duty to exercise the standard of care expected of a reasonable person under the circumstances.
It is also noteworthy that decedent had several opportunities to notify LP & L. He could have done so prior to beginning the job, as he did on the prior occasion. He could have done so on the morning he commenced work. Finally, when the branch fell on the line, apparently with enough force to break one of the wires, decedent should have been put on notice to immediately cease work and notify LP & L.
In addition to decedent's failure to warn LP & L, other aspects of his conduct show a disregard for his own safety. There was expert testimony showing decedent violated several provisions of the American National Standard for Tree Care Operations. The standards specifically prohibit a non-qualified tree trimmer such as Dobson from working closer than ten feet from a power line; nonetheless, decedent worked within three feet of the line. The regulations require the tree trimmer to climb up or down a tree on the opposite side of the power line, whereas decedent attempted to descend between the tree and the power line. Decedent used a flip line with a conductive steel core, whereas the safety rules strictly prohibit the use of conductive tools or materials while working around power lines. Had decedent followed any one of these rules, the accident in all probability would have never occurred.
Further, a review of the law in this area shows the majority's holding clearly conflicts with the established jurisprudence. In Simon v. Southwest Louisiana Electric Membership Corp., 390 So.2d 1265 (La. 1980), we outlined the scope of the power companies' duty:
We further elucidated the scope of this duty in Kent v. Gulf States Utilities Co., 418 So.2d 493 (La.1982), where we held injury caused by contacting uninsulated power lines did not fall within the ambit of strict or absolute liability, but should be controlled by negligence principles:
In both Simon, supra, and Kent, supra, the court found the types of accidents which occurred could not have been anticipated by the utility and was therefore not within the scope of the duty owed by the utility to the injured plaintiff.
In allowing recovery against the utility, the court noted the utility had the greater knowledge and direct control over the source of the injury. We found the plaintiff's conduct did not preclude his recovery, and that he acted reasonably under the circumstances. However, the injury in Hebert, supra, occurred in 1977, prior to the adoption of comparative fault, and a finding of contributory negligence on the part of plaintiff would have eliminated any recovery.
In Levi v. Southwest Louisiana Electric Membership Cooperative, 542 So.2d 1081 (La.1989), an oil field roustabout-pumper was severely injured when the erected mast of a paraffin removal truck rig upon which he was working came in contact with an uninsulated 14,400 volt electric distribution line. The lower courts found the utility company had exercised reasonable care. This court reversed and remanded. In determining
In applying this standard to the facts, the court noted the utility company was aware of the oil companies' use of trucks with erectable high masts around its power lines, and had taken significant precautions against this danger when choosing the route of its lines. Further, we found the utility company had "actual knowledge" of previous instances of oil field worker's negligence in moving erect masts under uninsulated power lines. Given the gravity of the harm, we concluded several different kinds of precautions could have been taken by the utility company to eliminate or reduce the hazard posed by its uninsulated high voltage line. We found the lower courts committed manifest error in not holding the utility company's failure to take these precautions constituted negligence, which a majority of the court found was a legal cause of plaintiff's injury.
The court recently had an opportunity to further address the scope of this duty in Washington v. Louisiana Power and Light, 555 So.2d 1350 (La.1990). Washington involved a decedent who was killed when he accidentally allowed a citizens band radio antenna to come in contact with an uninsulated 8000 volt electric wire that spanned his back yard. In reviewing the record, we found decedent was aware of the hazards of the power line. He had in fact been slightly injured in an earlier accident in 1980 when he attempted to move the antenna in such a way that it made contact with the power line. Representatives of the utility repaired the line and discussed the matter with decedent before re-energizing the line. After this incident, decedent acted carefully, until the fatal accident. We concluded that given these circumstances, the utility company did not breach its duty to decedent:
Viewing the progression of cases from Simon to Washington, it becomes clear this court has attempted to fashion the duty of the utility company to an injured plaintiff in terms of a balance between the necessity of uninsulated high voltage power lines and the possibility of severe injury from those lines. In determining the scope of this duty, we have expressly rejected strict or absolute liability approaches. Instead, under a traditional duty-risk analysis, we have focused on whether the utility company knew or should have known its lines created a risk of danger to the plaintiff, and whether the utility company acted reasonably to prevent that harm.
While the cases clearly hold a utility company which realizes its lines present a danger has a high duty to an injured plaintiff, this does not negate the plaintiff's duty to conform to the standard of care that would be exercised by a reasonable man. Dyson v. Gulf Modular Corp., 338 So.2d 1385 (La.1976).
In the present case, the majority has essentially placed LP & L in the position of an insurer, a conclusion we found unacceptable in Simon, supra. Although LP & L realized its lines created a danger to tree trimmers like Dobson, it also knew Dobson
For these reasons, I respectfully dissent from the majority's holding.
MELVIN A. SHORTESS, Justice Pro Tem., dissenting.
I believe that the Court of Appeal correctly assesed the comparative negligence ratio between LP & L and plaintiff. I also note that even a neophyte tree trimmer should have known that the use of a steel-and nylon-made safety line was extremely dangerous, especially when working near electric lines.
I respectfully dissent.
DISSENT ON DENIAL OF REHEARING
HALL, Justice, would grant the defendant's application for rehearing to reconsider the apportionment of fault, agreeing with the dissent of Justice Pro Tempore SHORTESS that the court of appeal correctly assessed the comparative negligence of the decedent and the defendant. The "Hand formula" is a useful tool as is the Watson or Uniform Act list of factors in determining relative degrees of fault, but the majority opinion in this case miscalculates and gives too much weight to the cost side of the formula and reverses the superior-inferior roles of the actors in the immediate events which resulted in this accident.
Further, the majority discounts Cavaretta's testimony as giving no clear indication of the degree of Dobson's knowledge. Such a finding ignores the fact Dobson acknowledged Cavaretta's warning by contacting him to drop a service line on the day before his death. Clearly, the inescapable conclusion is that Dobson was properly warned by Cavaretta, realized the lines were dangerous, yet failed to contact LP & L on the day of the accident.