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Thompson v. Crawford

Court of Appeals of Louisiana, First Circuit

July 12, 2017


         Appealed 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.

          Lewis 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.

          Joseph 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.


          GUIDRY, J.

         A 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.


         In the 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.

         A 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 Code.

         On 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, [1] 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").

         Prior 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 suspensively appeals.


         On 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 son.
B. Solely in the alternative, the [trial] court abused its discretion in awarding the plaintiff $1, 350, 000 in wrongful-death damages.
C. The [trial] court abused its discretion in awarding $450, 000 in survival-action general damages.


         The 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.[2]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 related damages."

         Although 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.

         In 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 to disclose:

[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 ...

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