In several previous posts on this blog, we have explored cases involving premises liability where the plaintiff is injured while visiting a
“restaurant”, “store”, or other “business”. But what about a plaintiff who is injured on his own property by a device that is owned by another party but which is on his property for his own benefit? This situation can arise in the case of utilities, where the dangerous conditions are created by electric power lines, natural gas lines, propane tanks, and the like. The case of Flowers v. Entergy Corp. offers an example.
On January 5, 2001, just outside of Springfield, Louisiana, Randall Flowers parked his truck and trailer in the driveway of his home. He parked the vehicle near a small pump house that served as a water source for washing the truck. When Flowers climbed on top of the trailer to wash it, he came into contact with a power line that provided electricity to his house and was severely injured. Flowers sued Entergy Corp., the local utility that owned and maintained the power line. At trial, both parties produced experts who testified about the National Electric Safety Code (the “Code”), which, though not officially adopted by the state of Louisiana, was relied upon by utilities for minimum safety standards. The Code set minimum heights for power lines in various applications so as to provide clearance for people and equipment passing below. Flowers’ expert testified that the power line over the driveway failed to meet the Code requirements for the location where it was installed in that it sagged one and one-half feet too low at its midpoint. He also offered the opinion that Entergy should have performed more frequent inspections, which would have allowed the company to discover the problem sooner. Entergy’s witness, who was certified as an expert in electrical engineering, Code interpretations, and accident reconstruction, read the Code differently and established that the height of the power line did not violate the Code. Ultimately, the jury found no fault on the part of Entergy and assigned 100 percent fault to Flowers.
On “appeal”, Flowers argued that the jury’s verdict was clearly wrong, and that Entergy’s failure to maintain the lines at the height suggested by his expert witness was the cause-in-fact of his injury. The First Circuit focused its analysis on the issue of whether Entergy breached a duty it owed to Flowers, which was related to its maintaining the proper height of the power line. The court stated,
“from our review, the record provided the jury a reasonable basis for finding that Entergy … could not have reasonably foreseen or anticipated plaintiff’s choice of location for his chosen activity. Even if the duty or standard of care was breached by the height of the power line, the risk that materialized is not easily associated the breach. … Thus, the risk was not contemplated by or within the scope of the breached duty, and therefore, not the legal cause of the injury.”
The court concluded that, based on the trial record, the jury’s verdict could not be considered “clearly wrong” and affirmed the trial court’s judgment.
This case reminds property owners that the duty-risk analysis relied on by the courts in these cases does not place all responsibility on the utility company for the safe operation of power lines and other dangers. Indeed, “an electric company is not under a duty to safeguard against occurrences that cannot be reasonably expected or contemplated.” In fact, “operators of power lines are not required to anticipate every possible accident which may occur and are not the insurers of safety of persons moving around power lines in the course of everyday living.” Clearly the jury in the Flowers case determined that the plaintiff’s truck-washing did not fall within the activities that Entergy should have “reasonably expected” would occur around its power lines, and the Court of Appeals did not find this conclusion unreasonable.
If you have been injured and believe it was due to someone’s negligence, call the Berniard Law Firm at 504-521-6000 and speak with an attorney who can analyze the facts of your case, apply the law, and get the judgment you deserve.