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Chesney v. Entergy Louisiana, L.L.C.

Court of Appeals of Louisiana, Second Circuit

November 15, 2017

GLENN ALLEN CHESNEY, ET AL Plaintiffs-Appellants
ENTERGY LOUISIANA, L.L.C., ET AL Defendants-Appellees

         Appealed from the Fourth Judicial District Court for the Parish of Ouachita, Louisiana Trial Court No. 20112730 Honorable Bernard Scott Leehy, Judge

          LAW OFFICE OF ANTHONY J. BRUSCATO, APLC By: Anthony J. Bruscato Counsel for Appellants Glenn A. Chesney and Cindy Chesney.

          TAYLOR, WELLANS, POLITZ, DUHE, APLC By: Terri M. Collins By: Charles J. Duhe, Jr. Counsel for Appellant Waste Management of Louisiana, L.L.C.

          DEGAN, BLANCHARD & NASH By: Eric D. Burt Counsel for Appellee Copeland Electric Company, L.L.C.

          Before PITMAN, STONE, and BLEICH (Pro Tempore), JJ.

          STONE, J.

         Glenn and Cindy Chesney, along with Waste Management of Louisiana, L.L.C., appeal the trial court's ruling granting summary judgment in favor of Copeland Electric Company, L.L.C., and dismissing the Chesneys' action. For the following reasons, we affirm.


         On August 31, 2010, Glenn Chesney ("Chesney") arrived at the Magnolia Landfill ("the landfill") hauling a removable trash container on a 10-wheel flatbed truck owned by his employer, Waste Management of Louisiana, L.L.C ("Waste Management"). Due to a power outage, the weigh scale at the landfill was not working, and truck drivers had to wait in line for the scale to reopen. While waiting in the line of trucks that had formed along the entrance road on the landfill property, Chesney decided to untarp his load so he could unload faster once he got to the front of the line.

         Chesney's truck was equipped with an automatic tarp system that covered his container during transport. The tarp system was attached to the truck with movable mechanical arms. During operation of the system, the arms extended vertically 17 feet 12 inches above the ground. After Chesney activated the mechanical arms to lift the tarp, the arms extended into the air and came into contact with an uninsulated overhead power line. Contemporaneously, electricity was restored to the power lines, and electricity flowed through the truck and electrocuted Chesney. The electrical shock caused Chesney to suffer severe injuries.

         On August 31, 2011, Chesney and his wife, Cindy Chesney (collectively referred to as "Plaintiffs"), filed suit against Copeland Electric Company, L.L.C. ("Copeland") and Entergy Electric Company ("Entergy").[1] In their petition, Plaintiffs identified Copeland as the electrical contractor who installed the power lines. According to Plaintiffs, the overhead power lines, designed and installed in 1994, had an initial clearance of 20 feet above the ground. However, due to the passage of time, the power lines began to sag downward and at the time of the accident were only 13.5 to 15 feet above the ground at their lowest point. Plaintiffs claimed Copeland negligently caused Chesney's injuries for the following reasons: 1) Copeland installed and maintained defectively designed and/or manufactured overhead power lines; 2) Copeland installed and maintained power lines too close to the ground and to traversing traffic, trucks, workers, and equipment; 3) Copeland failed to raise and/or relocate the power lines when it knew or should have known of the characteristics of truck traffic at the landfill; 4) Copeland failed to properly inspect the overhead power lines; 5) Copeland failed to adequately warn Waste Management of the dangers associated with the ultrahazardous overhead power lines, either at the time of construction or thereafter; 6) Copeland failed to warn of the consequences of contact with the high voltage line; and 7) Copeland failed to take any reasonable steps to eliminate, minimize, or warn of the danger.

         On September 26, 2011, Waste Management intervened in the suit to recover worker's compensation payments it made to Chesney as a result of the accident. Thereafter, Copeland filed an exception of peremption arguing Plaintiffs' claims should be dismissed pursuant to La. R.S. 9:2772 ("Section 9:2772"), which provides a 10-year peremptive period for actions related to construction of an improvement to immovable property. Copeland asserted it was hired by Waste Management to design and construct the overhead electrical lines in the early 1990s. The structure was completed in 1994. Copeland argued that since more than 10 years had elapsed since the system's construction, Plaintiffs' cause of action was barred by peremption. In opposition to Copeland's exception, Plaintiffs argued that some of the wrongful acts they complained of were considered "post-construction negligence" and were outside the scope of the peremption statute.

         The trial court agreed with Copeland and found Plaintiffs' construction-related claims were perempted by Section 9:2772. Additionally, as to Plaintiffs' remaining claims for post-construction negligence, the trial court found Plaintiffs failed to establish Copeland owed a duty to Waste Management or its employees, except for limited matters that Copeland was hired to do over the intervening years. The trial court sustained Copeland's exception of peremption and dismissed Plaintiffs' action.

         On appeal, this Court affirmed the trial court's finding that Plaintiffs' construction related claims are perempted by Section 9:2772. However, this Court concluded the trial court improperly dismissed Plaintiffs' post-construction negligence claims under the procedural posture of an exception of peremption when summary judgment was the appropriate vehicle to adjudicate those issues. Chesney v. Entergy La., L.L.C., 49, 816 (La.App. 2 Cir. 05/27/15), 166 So.3d 1204. The matter was remanded for further proceedings on the post-construction negligence claims.

         Following remand, Copeland moved for summary judgment. Copeland claimed the undisputed facts demonstrated Plaintiffs would not be able to prove Copeland owed them or Waste Management a duty to discover, protect against, or warn of the allegedly hazardous power line. In response, both Plaintiffs and Waste Management argued an electrical professional, like Copeland, has a legal duty to report any electrical hazard that it observes on a customer's premises, even where there is no explicit contract to do so.

         After considering the law and evidence, the trial court granted summary judgment, finding Copeland owed no duty to inspect, notify, and/or warn Waste Management of a potentially hazardous condition as it related to the overhead power lines. The trial court dismissed Plaintiffs' and Waste ...

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