136 So. 3d 194
La. Ct. App.2014Background
- After Hurricane Gustav (2008), Oklahoma Gas & Electric (OG&E) crews (including Buddy Searberry) assisted Entergy in Louisiana; Searberry was electrocuted on Sept. 14, 2008 while repairing a downed line and suffered catastrophic injuries.
- Jury awarded multimillion-dollar judgment for Searberry; jury apportioned fault: Entergy 50% (two entities combined), Searberry 30%, OG&E 20%.
- Entergy appealed jury instructions (requested open-and-obvious charge; contested "utmost care" instruction), fault allocation, and general damages; Searberry appealed the reduced earning-capacity award and parts of indemnity rulings.
- Trial evidence: Entergy field supervisor (Larry Moore) had Controlling Authority/Circuit Boss/Crew Leader responsibilities under Entergy protocols but did not ground the line, place hold tags, or complete clearance procedures; an OG&E crew closed a fuse upstream re-energizing the line.
- Medical and expert testimony: Searberry suffered severe burns, partial amputation, traumatic brain and progressive neurologic conditions; economist testified uncontradicted lost earning-capacity calculation of $1,872,030.
Issues
| Issue | Plaintiff's Argument (Searberry) | Defendant's Argument (Entergy) | Held |
|---|---|---|---|
| Jury instruction — open & obvious / duty standard | Trial judge correctly instructed that utility owes "utmost care" and open-and-obvious defense inapplicable here | Erroneous refusal to give open-and-obvious instructions and erroneous "utmost care" charge warrant de novo review | Court affirmed: refusal to give open-and-obvious instruction not erroneous (inapplicable); "utmost care" instruction proper; no de novo review warranted |
| Allocation of fault | Jury verdict (50% Entergy / 30% Searberry / 20% OG&E) supported by evidence of Moore’s controlling authority and safety failures | Jury erred; Entergy’s fault should be reduced (e.g., to 10%) because most fault lay with OG&E and Searberry | Manifest-error review: allocation reasonable and not clearly wrong; verdict stands |
| General damages (quantum) | $4,750,000 supported by catastrophic injuries and medical testimony | Abuse of discretion; injuries not catastrophic; reduce award substantially | Court refused to disturb $4,750,000 — jury did not abuse discretion |
| Lost earning capacity (special damages) | Uncontradicted economist proves $1,872,030; award of $300,000 was unsupported | Photographs and Searberry’s retirement support lower award; jury not bound by economist | Court found $300,000 manifestly erroneous and increased award to $1,872,030 (lowest reasonable amount) |
| Mutual Assistance Agreement indemnity | Agreement requires requesting company (Entergy) to indemnify responding company’s employees; trial court properly shifted Searberry’s own fault to Entergy | Indemnity does not cover indemnitee’s own fault absent unequivocal language; trial court erred shifting Searberry’s comparative fault to Entergy | Court (de novo): indemnity triggered only when legal liability is imposed; trial court erred assigning Searberry’s own fault to Entergy (reversed); trial court correctly refused to reallocate OG&E’s apportioned fault to Entergy because OG&E had statutory immunity |
Key Cases Cited
- Broussard v. State of Louisiana, Office of State Buildings, 113 So.3d 175 (La. 2013) (open-and-obvious considered as part of jury’s risk-utility/breach analysis under art. 2322)
- Simon v. Southwest Louisiana Elec. Membership Corp., 390 So.2d 1265 (La. 1980) (utilities maintaining high-power lines owe "utmost care")
- Hanks v. Entergy Corp., 944 So.2d 564 (La. 2006) (reiterating high duty of care for electric utilities)
- Murray v. Ramada Inns, Inc., 521 So.2d 1123 (La. 1988) (duty should not turn on particular plaintiff’s knowledge; open-and-obvious to all concept)
- Perkins v. Rubicon, Inc., 563 So.2d 258 (La. 1990) (indemnity will not cover indemnitee’s own negligence absent unequivocal language)
- Folse v. Fakouri, 371 So.2d 1120 (La. 1979) (lost earning capacity measured by diminished capacity, not merely pre/post earnings)
- Hall v. Folger Coffee Co., 874 So.2d 90 (La. 2004) (appellate manifest-error standard for factual findings)