CHARLES THOMPSON, INDIVIDUALLY AND IN HIS CAPACITY AS REPRESENTATIVE OF THE ESTATE OF AARON THOMPSON
DAVID CRAWFORD, DESIRE CRAWFORD, SHANE COURREGE INDIVIDUALLY AND D/B/A SPANISH MOON, ENTERGY CORPORATION, ENTERGY GULF STATES LOUISIANA LLC, AND ENTERGY LOUISIANA LLC
from the Nineteenth Judicial District Court In and for the
Parish of East Baton Rouge State of Louisiana Suit Number
633, 265, Honorable Janice G. Clark, Judge.
O. Unglesby Lance C. Unglesby Logan H. Greenberg and Peyton
M. Murphy Baton Rouge, LA, Counsel for Plaintiff/ Appellee
Charles Thompson, individually and as representative of the
Estate of Aaron Thompson.
R. Ballard Todd S. Manuel Sandra Diggs-Miller Baton Rouge, LA
and Thomas M. Flanagan Andy Dupre Anders F. Holmgren New
Orleans, LA, Counsel for Defendant/ Appellant Entergy Gulf
States Louisiana, LLC.
BEFORE: WHIPPLE, C.J., GUIDRY, PETTIGREW, McCLENDON,
utility company appeals a jury's award of damages in a
wrongful death and survival action, contending that certain
evidentiary rulings by the trial court interdicted the
factual determinations of the jury in this matter.
AND PROCEDURAL HISTORY
early morning hours of September 6, 2013, Aaron Dan Thompson
(Dan) sat talking with Jenkins Brent Armstrong (Brent) and
Shane Courrege in the Spanish Moon bar in Baton Rouge,
Louisiana. Brent had been working as a deejay at the bar that
night, and Shane, a part owner of the bar, had stopped by to
see if any help was needed closing the bar for the night. The
three initially sat talking at the counter in the barroom,
but eventually made their way to the roof of the building in
which the bar was housed While the three stood talking on the
roof, Dan leaned against the parapet wall enclosing the roof
and reached out to grab a wire that was hanging about a foot
from the building. Nearly 8, 000 volts of electricity flowing
through the wire immediately transferred to Dan's body,
causing his right hand to catch aflame and burn off as the
electricity coursed through his body to exit out his back.
Dan fell down dead as a result of his contact with the wire.
subsequent investigation of the incident revealed that the
wire Dan had grabbed was positioned too close to the
building, in violation of the National Electrical Safety
September 4, 2014, Charles James Thompson, Dan's father,
filed a petition for damages against Entergy Corporation,
Entergy Gulf States Louisiana, LLC, Entergy Louisiana, LLC,
David and Desire Crawford,  and Shane, individually and doing
business as "The Spanish Moon." Mr. Thompson later
dismissed the claims against Entergy Corporation, Entergy
Louisiana, LLC, and David and Desiree Crawford. Mr. Thompson
compromised the claims against Shane individually and doing
business as the Spanish Moon and consequently dismissed Shane
and the Spanish Moon from the suit as well. Thus, the matter
proceeded to a jury trial solely against Entergy Gulf States
Louisiana, LLC ("EGSL").
to the commencement of a three-day jury trial, EGSL
stipulated to liability, leaving for the jury's
consideration the issues of allocation of fault and
assessment of damages. Following the presentation of
evidence, the jury rendered a verdict finding EGSL to be 65
percent at fault and Dan to be 35 percent at fault for the
electrocution death. The jury awarded $450, 000.00 in
survival action damages for the pain and suffering it found
Dan to have experienced upon being electrocuted. As for Mr.
Thompson's wrongful death claim, the jury awarded $450,
000.00 for loss of felicity, $450, 000.00 for loss of love
and affection, and $450, 000.00 for loss of society and
companionship, for a total wrongful death award of $1, 350,
000.00. As a final element of damages, the jury awarded
funeral expenses in the amount of $6, 068-80, Consistent with
the jury's verdict, the trial court signed a judgment on
September 8, 2015, in favor of Mi'. Thompson against EGSL
in the amount of $1, 173, 944.70, from which EGSL
appeal, EGSL asserts the following as errors committed by the
trial court relative to the judgment appealed:
A. The [trial] court committed legal error in ruling that
[EGSL] owed the plaintiff a duty to admit responsibility for
a tort; the court's admission of prejudicial evidence on
this non-existent duty was error and tainted the jury's
award of damages to the plaintiff for the death of his adult
B. Solely in the alternative, the [trial] court abused its
discretion in awarding the plaintiff $1, 350, 000 in
C. The [trial] court abused its discretion in awarding $450,
000 in survival-action general damages.
first issue to be resolved in this appeal is to determine
whether it was proper for the trial court to allow the
plaintiff to argue and present, evidence of EGSL's
failure to advise Mr. Thompson of its negligence relative to
the electrical wire being positioned too close to the Spanish
Moon building. At trial, the plaintiff was allowed to present
evidence that within a few days following Dan's
electrocution, EGSL learned that the electrical wire Dan
grabbed was too close to the building, in violation of the
National Electrical Safety Code (NESC), which required the
wire to have at least a three-foot clearance from the
building.Testimony was solicited from Mr. Thompson
regarding whether anyone from EGSL had contacted Mr. Thompson
to inform him of the company's negligence in allowing the
electrical wire to be positioned so close to the building.
Counsel for Mr. Thompson stated that he was trying to prove a
"cover up" and that EGSL was hiding evidence, which
counsel argued was an admission or could be considered fault.
The trial court overruled EGSL's objection to the
testimony, explaining that the "pleadings set out [a]
demand for damages for wrongful conduct causing injury in
EGSL conceded liability in this matter, its concession does
not change the basic principle that in a negligence action,
the. plaintiff bears the burden of proving fault, causation,
and damages, Gaspard v. Safeway Insurance Company,
14-1676, p. 4 (La. App 1st Cir. 6/5/15), 174 So.3d 692, 694,
writ denied, 15-1588 (La. 10/23/15), 184 So.3d 18.
Moreover, in a civil case, the duty to disclose to one's
adversary arises through specific discovery requests.
Wright v. Louisiana Power & Light, 06-1181, pp.
17-18 (La. 3/9/07), 951 So.2d 1058, 1070-71. In this case, in
response to a request for admissions propounded to it, EGSL
admitted the clearance violation on which its liability is
premised. And while we recognize that there may be instances
in the law in which a tortfeasor is required to disclose
wrongdoing or negligence of which he is aware, see Bunge
Corporation v. GATX Corporation, 557 So.2d
1376, 1383-84 (La. 1990), we have not found, nor has the
plaintiff revealed, where such is required under the
circumstances presented herein.
Bunge Corporation, the Louisiana Supreme Court
considered whether a contractor's failure to disclose the
existence of a construction defect that it learned of
after it had built a grain storage tank for the
plaintiff constituted fraud such that the plaintiffs claim
against the contractor would not be subject to a statutory
peremptive period. In determining that issue, the court
provided the following general discussion regarding the duty
[T]he failure to disclose existence of a known danger,
where one knows that another is relying on the appearance of
safety, can constitute misrepresentation.
"... The surgeon who remains silent when he discovers
that he has left his tools in the patient's anatomy, the
air traffic controller who fails to warn a pilot of air
turbulence, the landlord who leases defective premises, the
landowner who permits a licensee to enter without warning of
hidden perils, the seller of a chattel who fails to disclose
its hidden dangers, the person who promises and then fails to
pass on information important to another's welfare, each
may be liable to the person with whom he deals, or to others
whom harm is to be expected through that person's
reliance. The 'something like fraud on the part of the
giver, ' which the courts have found in these cases,
consists in permitting another to rely upon a tacit assurance
of safety, when it is known that there is danger."
Prosser and Keeton, Torts, 207-08 (1984).
It has long been held that the duty to disclose exists
where the parties stand in some confidential or fiduciary
relation to one another, such as that of principal and
agent or executor and beneficiary of an estate.
Bunge Corporation, 557 So.2d at 1383-84 (footnote
marker omitted)(emphasis added). The court ...