Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana. Trial Court No. 112730. Honorable Clarence Wendell Manning, Judge.
ANTHONY J. BRUSCATO, for Appellants Glenn Allen Chesney and Cindy Chesney.
TAYLOR, WELLONS, POLITZ & DUHE, APLC, By: Brent Michael Steier, for Intervenor-Appellant, Waste Management of Louisiana, L.L.C.
DEGAN, BLANCHARD & NASH, By: Sidney W. Degan, III, Travis Louis Bourgeois, Eric D. Burt, for Appellee Copeland Electric Co., LLC.
Before BROWN, DREW and LOLLEY, JJ.
[49,816 La.App. 2 Cir. 1] DREW, J.
Glenn Chesney and his wife, Cindy Chesney, along with intervener, Waste Management of Louisiana, L.L.C., appeal a judgment granting an exception of peremption filed by defendant Copeland Electric Company, L.L.C. and dismissing the Chesney's action against Copeland. For the following reasons, we affirm in part and reverse in part.
Glenn Chesney was employed by Waste Management as the driver of a 10-wheel flatbed truck that carried a removable trash container. Although the trash container is an open metal box, Chesney's truck was equipped with an automatic tarp system that could cover the container during transport. The tarp system was attached to the truck with movable mechanical arms, and during operation of the system, the arms extended vertically to 17' 9" above the ground.
On August 13, 2010, Chesney drove a loaded trash truck to the Magnolia landfill, a facility in Ouachita Parish owned and operated by Waste Management. When Chesney arrived at the Magnolia facility, the electricity was out. The lack of power meant that the weigh scale at the facility was not working, so the truck drivers had to wait in line for the scale to reopen. The trash trucks lined up on a private road on the Magnolia property to wait. During this time, Chesney decided to untarp his load so he could unload faster when he got to the front of the line. When he activated the mechanical arms to lift the tarp, the arms came into contact with an uninsulated overhead power line. Electricity had been restored to these [49,816 La.App. 2 Cir. 2] lines, and the electricity flowed through the truck, causing Chesney to suffer injury from electric shock.
On August 31, 2011, Chesney and his wife sued Entergy and Copeland Electric
Company (" Copeland" ). The Chesneys alleged that:
o Entergy had custody of the power poles and power lines at the entrance and inside the facility and that Copeland installed the power poles and lines.
o Entergy and Copeland were negligent in the installation and maintenance of the overhead power lines, particularly in light of the type of truck traffic present at the Magnolia facility.
o When the overhead lines had originally been installed " at least" 10 years prior to the accident, they were 20 feet above the ground; however, the lines had sagged so that at the time of the accident, the lines were only 13.5 to 15 feet above the ground at their lowest point.
The Chesneys further alleged that the defendants should have known of the hazards posed by the sagging lines. In particular, regarding Copeland, it was alleged that:
o Copeland was an electrical contractor who erected the power poles and power lines located at the main entrance to the landfill.
o Since the date the poles and lines were installed, Copeland has been under contract to inspect and maintain these lines.
o Copeland's employees visited the landfill occasionally to maintain and inspect the lines as well as to perform other electrical contracting services.
o Copeland's employees had numerous opportunities during their visits to the premises to observe the condition of the power poles, power lines and entrance road and, also, the opportunity to observe normal landfill activities including the characteristics and uses of trucks and equipment at the landfill.
The Chesneys maintained that Copeland was negligent, inter alia, for:
[49,816 La.App. 2 Cir. 3] o installing and maintaining defectively designed and/or manufactured overhead electrical lines;
o installing and maintaining electrical lines too close to the ground and to traversing traffic, trucks, workers, and equipment;
o failing to raise and/or relocate the electrical lines when they knew or should have known of the characteristics of truck traffic at Waste Management;
o failing to properly inspect the overhead electrical lines;
o failing to adequately warn Waste Management, Entergy, and workers of the dangers associated with the ultra-hazardous overhead electrical lines, either at ...