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

166 So. 3d 1204, 2015 La. App. LEXIS 1035, 2015 WL 3396874
CourtLouisiana Court of Appeal
DecidedMay 27, 2015
DocketNo. 49,816-CA
StatusPublished
Cited by4 cases

This text of 166 So. 3d 1204 (Chesney v. Entergy Louisiana, L.L.C.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Chesney v. Entergy Louisiana, L.L.C., 166 So. 3d 1204, 2015 La. App. LEXIS 1035, 2015 WL 3396874 (La. Ct. App. 2015).

Opinion

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 per-emption 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.

FACTS

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.1 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 [ 2lines, and the electricity flowed through the truck, causing Chesney to suffer injury from electric shock.

On August 31, 2011, Chesney and his wife sued Entergy2 and Copeland Electric [1207]*1207Company (“Copeland”). The Chesneys alleged that:

• 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.
• 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.
• 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:

• Copeland was an electrical contractor who erected the power poles and power lines located at the main entrance to the landfill.
• Since the date the poles and lines were installed, Copeland has been under contract to inspect and maintain these lines.
• Copeland’s employees visited the landfill occasionally to maintain and inspect the lines as well as to perform other electrical contracting services.
• 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:

li* installing and maintaining defectively designed and/or manufactured overhead electrical lines;
• installing and maintaining electrical lines too close to the ground and to traversing traffic, trucks, workers, and equipment;
• 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;
• failing to properly inspect the overhead electrical lines;
• failing to adequately warn Waste Management, Entergy, and workers of the dangers associated with the ultra-hazardous overhead electrical lines, either at the time of construction or thereafter;
• failing to warn of the consequences of contact with the high voltage line causing severe or fatal injuries with regard to any operation along the concrete drive in the vicinity of the scales; and
• failing to take reasonable steps to eliminate, minimize, or warn of the danger.

[1208]*1208On September 26, 2011, Waste Management filed an intervention seeking to recover workers’ compensation payments it had made to Chesney. Entergy filed an answer in October 2011 generally denying wrongdoing, and Copeland filed a similar answer in November 2011.

After further discovery, Entergy filed a motion for summary judgment in October 2013. Copeland did not join in this motion. Entergy asserted that Copeland had installed the power poles on Waste Management’s property in 1994, that the poles and electric line were entirely on Waste Management’s property and that Entergy had no electric facilities, poles or lines on that property. Entergy further alleged that Waste Management was responsible for maintenance of its power line, had never authorized Entergy to come onto the property to maintain the line, and would retain a contractor to perform any necessary work or repairs to the line.

| Jnstead óf a motion for summary judgment, Copeland filed an exception of per-emption on October 9, 2013. Copeland contended that Waste Management contracted with Copeland to design and construct the overhead power distribution system at the landfill in the early 1990s, and that Copeland completed the work in 1994. Copeland further alleged that Waste Management never hired Copeland to inspect or maintain any of the power lines or poles after they were designed and constructed. Copeland urged that it performed electrical work at the landfill only when hired by Waste Management to do so and then only on an “as needed” basis, and that Waste Management never hired Copeland to perform any work or services regarding the height of the power line. Copeland cited La. R.S. 9:2772, the provision establishing a 10-year peremptive period for actions related to construction of an improvement to immovable property, and argued that the plaintiffs’ cause of action had been destroyed by peremption.

In support of its exception of peremption, Copeland attached the plaintiffs’ petition, a notice of claim under Copeland’s insurance policy for this incident, Waste Management’s petition for intervention, and the deposition of Mike Copeland, the principal of Copeland Electric.

Waste Management opposed Copeland’s exception of peremption, urging that Copeland had performed work at the landfill several times in 2010 prior to the accident, and that Copeland Electric had a policy and practice, constituting an affirmative duty undertaken by Copeland Electric, to warn its customers of any hazardous condition found at a work site. Waste Management also filed an opposition to Enter-gy’s motion for | ¡¡summary judgment. The Chesneys joined in both of Waste Management’s oppositions.

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Related

Chesney v. Entergy La., L.L.C.
245 So. 3d 281 (Louisiana Court of Appeal, 2017)
State v. Brundy
198 So. 3d 1247 (Louisiana Court of Appeal, 2016)
Passon v. Fields
196 So. 3d 645 (Louisiana Court of Appeal, 2016)

Cite This Page — Counsel Stack

Bluebook (online)
166 So. 3d 1204, 2015 La. App. LEXIS 1035, 2015 WL 3396874, Counsel Stack Legal Research, https://law.counselstack.com/opinion/chesney-v-entergy-louisiana-llc-lactapp-2015.