STATE OF LOUISIANA
FIRST CIRCUIT
2024 CA 0 105
11,1: 7 9 9. 117 Iso tot
VERSUS
Judgment Rendered: HOV 2 0 2024
On Appeal from the 19th Judicial District Court In and for the Parish of East Baton Rouge State of Louisiana Trial Court Docket Number 0681901, Sec. 22
Honorable Beau Higginbotham, Judge Presiding
L. Clayton Burgess Counsel for Plaintiff/Appellant, Liza R. Trahan Jared Arthur Cunningham Cole H. Delcambre Lafayette, Louisiana
John A. Braymer Counsel for Defendant/ Appellee, Ryan N. Ours Entergy Louisiana, LLC Baton Rouge, Louisiana
BEFORE: GUIDRY, C.J., PENZATO AND STROMBERG, JJ. Plaintiff, Jared Cunningham, appeals the trial court' s September 25, 2023
judgment granting a motion for summary judgment in favor of defendant, Entergy
Louisiana, LLC. After de novo review of the summary judgment record, we affirm.
Jared Cunningham sustained electrical shock injuries on July 2, 2018, when
the crown of his head came in close contact with ( or contacted) a high voltage
electrical distribution line owned by Entergy Louisiana, LLC. The distribution line
was part of Entergy' s electrical facilities housed on the roof of an abandoned
building owned by Borden Dairy Company of Texas, LLC, located on Florida Blvd.
in Baton Rouge.'
Mr. Cunningham filed suit against Entergy and Borden in April 2019, seeking 2 personal injury damages. Mr. Cunningham maintained that he was lawfully on
Borden' s premises to inquire about and respond to a job opening when " suddenly
and without warning" he was " electrocuted by an arc flash from the electricity
supplied to the property by Entergy[.]" 3 The petition alleged that Borden' s premises
was unsafe and in deplorable condition, serving as " home to the homeless and drug addicts of Baton Rouge." According to Mr. Cunningham, Entergy was aware that its
electrical " substation" was supported by, connected to, and surrounded by premises
that were defective and in disrepair. Mr. Cunningham asserted causes of action for
negligence, gross negligence, and premises liability against Entergy. The petition
pertinently alleged that Entergy was liable for failing to disable, cut off, and/ or turn
I Six transformers were originally installed on Borden' s roof in 1983 to provide electrical service to the premises. Borden eventually stopped processing milk at the Florida Blvd. location, and Entergy reduced the number of energized transformers within its facilities. Borden continued to operate a mechanic shop and charging stations on its premises for the trucks hauling milk. One transformer remained operable within Entergy' s facilities at Borden at the time of Mr. Cunningham' s incident.
2 ACE American Insurance Company, Borden' s insurer, is also a defendant, substituted for Chubb Custom Insurance Company. 3 Mr. Cunningham' s allegations against Borden are not pertinent to this appeal and are not discussed.
2 off the electricity to Borden' s premises and was also liable for the " ruinous condition
and deterioration of its power lines and other instrumentalities" on Borden' s
premises.
On May 31, 2023, after the close of discovery, Entergy filed a motion for
summary judgment, seeking to dismiss all causes of action asserted against it.
Entergy contended that Mr. Cunningham could not satisfy " any element of any claim
against Entergy." Focusing on Mr. Cunningham' s negligence and gross negligence
causes of action, Entergy alleged no evidence exists to satisfy the duty and legal
cause elements of the duty -risk analysis.' Entergy further asserted its facilities did
not present an unreasonable risk of harm; therefore, Mr. Cunningham likewise could
not succeed on a premises liability cause of action. Entergy supported its motion
with deposition testimony from Mr. Cunningham and Richard Tholbum, Entergy' s
line superintendent at the time of Mr. Cunningham' s incident.' Entergy also relied
on an affidavit and expert report prepared by Ronald A. May, P.E., an electrical
engineer. See La. C. C. P. arts. 966( A)(4) 6 and 967( A).
Photographs of Entergy' s facilities were attached to Mr. Cunningham' s
deposition and are included with Entergy' s summary judgment evidence. These
photographs reflect the vast network of electrical lines, transformers, and specialized
electrical equipment within Entergy' s roof t-op facilities, and the fence enclosing it all:
a Both ordinary and gross negligence are analyzed under a duty -risk analysis. Listach v. West Baton Rouge Parish School Board, 2021- 0079 ( La. App. 1st Cir. 6/ 9/ 21), 328 So. 3d 450, 455, writ denied, 2021- 00982 ( La. 11/ 3/ 21), 326 So. 3d 887.
5 Mr. Tholburn' s name is also spelled " Tholborn" in the record. 6 Louisiana Code of Civil Procedure Article 966 was amended by La. Acts 2023, No. 317, § 1; La. Acts 2023, No. 368, § 1 ( eff. Aug. 1, 2023). The substance of these amendments is immaterial to our resolution of the issues presented in this appeal.
3 During his deposition, Mr. Cunningham testified that he and a friend,
Matthew Todd Kelly, saw online postings for job openings at Borden, which listed
the Florida Blvd. address. At approximately 6: 00 pm, Mr. Cunningham and Mr.
Kelly parked near Borden and saw a truck going behind the building and heard people there. Mr. Cunningham acknowledged Borden' s premises was visibly abandoned and " in disrepair," with overgrown vegetation and graffiti on the
building. Nevertheless, Mr. Cunningham and Mr. Kelly entered Borden' s premises through a " knocked -down" gate, hoping to " talk to a worker to find out about the
jobs[.]" This is Mr. Cunningham' s last memory before waking up in the hospital following his electrical shock. Mr. Cunningham does not know where he was on
Borden' s premises when he was injured, has no recollection of being on the roof or of being injured, and cannot explain why he was on the roof where Entergy' s
electrical facilities are located.
M On July 3, 2018, the day after Mr. Cunningham' s incident, Mr. May and Mr.
Tholburn inspected Entergy' s facilities. In his affidavit and attached report, Mr.
May explained that Entergy' s facilities, which he referred to as a " transformer yard,"
are accessed through Borden' s building, up a metal staircase, and through a gate at
the top of the staircase, which is usually locked. Mr. Tholburn testified that, prior
to July 2018, he was last on Borden' s premises in early October 2017. Mr. Tholburn
recalled that, when he visited in October 2017, the gate leading to Entergy' s facilities
was locked, and he locked the gate when he left. Only Entergy employees have a
key to the lock. When Mr. May and Mr. Tholburn inspected the area after Mr.
Cunningham' s incident, the gate was unlocked and unlatched. The lock was not in
the gate' s locking mechanism and was later found and observed to be cut and
discarded. Mr. Tholburn has no knowledge regarding who unlocked the gate
between his visit in October 2017 and the date of Mr. Cunningham' s incident in July
2018. 7
The gate is part of a fenced enclosure —specifically, a six-foot chain link fence
with a three -strand barbed wire extension —that houses Entergy' s roof t-op facilities.
A 13, 200/ 7, 620 -volt, 3- phase distribution line is routed overhead to a pole adjacent
to Borden' s building. From this pole, the distribution is routed with underground
conductors through a rigid metal conduit across the roof to the fenced area containing
six transformers. The energized buswork is approximately 10 feet above the ground,
more than the applicable National Electrical Safety Code (NESC) requirement. Mr.
Tholburn explained the buswork ties all six transformers together to provide the
proper electrical load to the customer ( Borden).
A sign that reads " DANGER HIGH VOLTAGE" is posted on the gate and on
each side of the fenced area. According to Mr. May, " DANGER" is written in white
7 During his July 3, 2018 investigation, Mr. Tholburn observed that copper wires were cut and missing from within Entergy' s facilities. Mr. May similarly observed what he believed to be e] vidence of copper theft" from Borden' s premises and Entergy' s facilities on July 3, 2018. Various copper buswork had been cut and removed from Entergy' s facilities. Mr. May also observed hand tools and other items " associated with copper theft" inside Entergy' s fenced area. 5 with a red background, and " HIGH VOLTAGE" appears in black letters with a white
background. A black and white photo of the described warning sign is included in
Entergy' s summary judgment evidence as an attachment to Mr. Cunningham' s
deposition:
Mr. May confirmed the enclosures surrounding Entergy' s equipment are consistent
with the type of construction around a substation and meet applicable NESC
requirements for enclosed equipment.
Mr. May explained Mr. Cunningham had to get within one- fourth inch of the
high voltage distribution line, because this voltage level will only arc through the air at less than one- fourth inch. Mr. May opined Mr. Cunningham entered Entergy' s
fenced area through the gate with the posted " DANGER HIGH VOLTAGE" sign,
climbed onto Entergy' s equipment (either the buswork and/or the transformers), then
raised his head into the 7, 620 -volt distribution line in the buswork above the
transformers. After the electric shock, Mr. Cunningham fell and sustained injuries
to his face and mouth. Mr. May observed the injuries to the crown of Mr.
Cunningham' s head and balls of his feet are consistent with one " raising up" and
contacting a high voltage distribution line with the crown of his head. Mr.
Cunningham' s contact with the energized line caused current to flow through his
body and out of his feet and left side.
Mr. Tholburn similarly testified that someone must make physical contact
with the lines to sustain an electrical shock. He stated there is no way to contact the
0 lines without gaining access to the fenced area and getting higher than the
transformers, much taller than a standing man.
Mr. Tholburn testified concerning Entergy' s knowledge of the condition of
Borden' s building before Mr. Cunningham' s incident. Mr. Tholburn visited
Borden' s premises in early October 2017 to check on the condition of the building,
which Entergy' s employees had to access to work on Entergy' s facilities. Mr.
Tholburn observed that Borden' s building was in " bad shape." It was abandoned;
there were " water leaks everywhere," lots of trash, and the appearance of homeless
people living there. Mr. Tholburn noticed that Entergy' s employees had to " walk
through a pretty good chunk of the building to get to stairs that lead up to the roof."
Based on these observations, Mr. Tholburn deemed the building unsafe for Entergy' s
employees and instructed employees not to return to the property to look at ( work
on) Entergy' s facilities.
Afterward, on October 9, 2017, Mr. Tholbum emailed several Entergy
employees from various departments to schedule an on- site meeting the next day on
Borden' s premises to view and discuss an " electrical / environmental hazard at the
customers [ sic] location." Mr. Tholbum' s email explained that the feed for the
abandoned building is located on the roof and through the years it has become " very hazardous for employees to access and maintain. On top of that hazard[,] it is also
an ongoing environmental hazard." Mr. Tholbum suggested " putting [ their] heads
together" to come up with a plan to " correct these hazards[.]"
During his deposition, Mr. Tholburn explained his observation regarding an electrical / environmental hazard" referred to the physical condition and location of
Borden' s building. On the " environmental side," Mr. Tholburn noticed the drainage
was clogged inside the fenced area where Entergy' s transformers were located; he
observed standing water with an oil sheen. Mr. Tholbum testified this needed to be
cleaned but was not hazardous to Entergy' s employees " unless you swim in it." As
far as the electrical hazard, Mr. Tholbum explained, " it' s not more so the electrical
7 hazard, just the access to - - to work on it." Mr. Tholburn confirmed, other than the
problems with Borden' s property and the difficulty and hazards with accessing
Entergy' s facilities, nothing else was dangerous or hazardous to Entergy' s
employees. Mr. Tholburn believed Borden' s property itself, not Entergy' s facilities,
to be a hazardous place to work. Entergy presented plans to Borden for alternative
sources of power in December 2017; however, for reasons not established in the
summary judgment record, the plan was never implemented.
Thus, in its motion for summary judgment, Entergy maintained the only
evidence that establishes how Mr. Cunningham sustained an electrical shock shows
he trespassed into Entergy' s secured, restricted area and came within one- fourth inch
of Entergy' s overhead energized line. Entergy asserted, when an electrical contact
cannot be reasonably anticipated, it is not within the scope of any duty owed by
Entergy because there is no ease of association between the risk presented by its
conduct under the overall circumstances and resulting injuries. See Fleniken v.
Entergy Corp., 2000- 1824 ( La. App. 1st Cir. 2/ 16/ 01), 780 So. 2d 1175, 1184, writs
denied, 2001- 1268, 2001- 1. 305, 2001- 1317 ( La. 6/ 15/ 01), 793 So. 2d 1250, 1253,
1254. Entergy also argued its facilities were secured and inaccessible to any person
acting reasonably and with due regard for his own safety. Considering its
compliance with all NESC safety measures and Mr. Cunningham' s actions, Entergy
asserted Mr. Cunningham could not prove its facilities were defective or posed an
unreasonable risk of harm. See La. C. C. arts. 2315, 2316, 2317, and 2317. 1; Miller
v. Albertson' s Companies, LLC, 2023- 0527 ( La. App. 1st Cir. 12/ 27/23), 381 So. 3d
Mr. Cunningham opposed Entergy' s motion, asserting a genuine issue of
material fact remains as to whether he was an invitee, which Mr. Cunningham
maintained is " fatal" to Entergy' s motion for summary judgment. Mr. Cunningham
asserted Entergy " knew about the dangerous condition of the transformer and the
property itself' but did not take any action to prevent his injuries. Mr. Cunningham further asserted Entergy had a duty to warn of the unreasonably dangerous and
hidden dangers related to its transformers and had actual knowledge of the
imminent danger from the condition of the property." Yet, Entergy failed to warn
Mr. Cunningham, took no action, and continued to supply electricity to Borden' s
premises. Mr. Cunningham asserted Entergy showed an " extreme" lack of care with
the electrical and environmental hazards on the property. To support his opposition,
Mr. Cunningham pertinently relied on Entergy' s responses to his requests for
admission and focused on Mr. Tholburn' s October 9, 2017 email wherein he noted
the " electrical / environmental hazard" on Borden' s premises. See La. C. C.P. art.
KOICH
The trial court granted Entergy' s motion for summary judgment in August
2023 at the conclusion of the contradictory hearing, finding Entergy did not owe a
duty to Mr. Cunningham and took steps to secure its facilities. A judgment in
conformity with this ruling was signed on September 25, 2023, dismissing all claims
asserted by Mr. Cunningham against Entergy with prejudice.' Mr. Cunningham
timely filed this appeal.
DISCUSSION
In a single assignment of error, Mr. Cunningham asserts the trial court erred
by granting Entergy' s motion for summary judgment, because genuine issues of
material fact remain " concerning the cause of the accident, particularly regarding
hazardous transformers owned by Entergy[.]"' However, there is no evidence to
establish that a genuine issue of material fact remains regarding how Mr. Cunningham sustained an electrical shock. Entergy offered the only evidence on
8 Borden also filed a motion for summary judgment, which was granted in a judgment signed on September 25, 2023. Mr. Cunningham' s appeal from the judgment in favor of Borden was allotted to a different panel of this court and assigned docket number 2024- 0104.
9 A fact is material if it potentially ensures or precludes recovery, affects a litigant' s ultimate success, or determines the outcome of the legal dispute. A genuine issue is one as to which reasonable persons could disagree; if reasonable persons could reach only one conclusion, there is no need for trial on that issue and summary judgment is appropriate. Seal v. Louisiana Farm Bureau Mutual Ins. Co., 2021- 0988 ( La. App. 1st Cir. 3/ 16/ 22), 341 So. 3d 659, 662. E this issue, which establishes Mr. Cunningham entered the fenced area where
Entergy' s facilities were located and came within one- fourth inch of Entergy' s
overhead electrical distribution line. Thus, we consider whether the trial court
properly granted summary judgment, dismissing Mr. Cunningham' s premises
liability, negligence, and gross negligence causes of action against Entergy.
In determining whether summary judgment is appropriate, appellate courts
review evidence de novo under the same criteria that govern the trial court' s
consideration of whether summary judgment is appropriate. Corbajal v. Chris
Owens French Quarter Parade, LLC, 2024- 00191 ( La. 5/ 21/ 24), 385 So. 3d 236,
237- 38. A motion for summary judgment shall be granted if the motion,
memorandum, and supporting documents show there is no genuine issue as to
material fact and the mover is entitled to judgment as a matter of law. La. C. C. P. art.
966( A)( 3); Corbajal, 385 So. 3d at 238.' o
Applicable Legal Principles
Pursuant to La. C. C. arts. 2315, 2316, 2317, and 2317. 1, the general rule is
that the owner or custodian of property has a duty to keep the premises in a
reasonably safe condition. The owner or custodian must discover any unreasonably dangerous condition on the premises, and either correct the condition or warn
potential victims of its existence. Miller, 381 So. 3d at 90.
10 The burden of proof on a motion for summary judgment rests with the mover. However, the mover is not required to negate all essential elements of the adverse party' s claim, action, or defense if it will not bear the burden of proof at trial on the issue before the court in the motion. Instead, the mover must point out to the court the absence of factual support for one or more elements essential to the adverse party' s claim, action, or defense. La. C. C. P. art. 966( D)( 1). When a motion for summary judgment is made and supported, an adverse party may not rest on the mere allegations or denials of his pleadings, but his response, by affidavits or otherwise, must set forth specific facts showing that there is a genuine issue for trial. La. C. C. P art. 967( B); Corbajal, 385 So. 3d at 238. Once a motion for summary judgment has been properly supported by the moving party, the failure of the non-moving party to produce evidence of a material factual dispute mandates the granting of the motion. Corbajal, 385 So. 3d at 238.
10 Principles of negligence, including the duty -risk analysis, apply to cases of
injury occurring because of contact with overhead power lines." Foley v. Entergy
Louisiana, Inc., 2006- 0983 ( La. 11/ 29/ 06), 946 So. 2d 144, 154. To establish the
liability of an electric utility company using the duty -risk analysis, the plaintiff has
the burden of proving: ( 1) the defendant power company owed a duty to the plaintiff,
2) the power company breached that duty; ( 3) the power company' s conduct was a
cause -in -fact of the plaintiffs injuries; ( 4) that the power company' s substandard
conduct was a legal cause of plaintiffs injuries; and ( 5) the plaintiff suffered actual
damages. Foley, 946 So. 2d at 154. A negative answer to any of the inquiries of the
duty -risk analysis results in a determination of no liability. Lafayette Steel Erector,
Inc. v. G. Kendrick LLC, 2022- 0892 ( La. App. 1st Cir. 8/ 29/ 23), 375 So. 3d 464,
474, writ denied, 2023- 01316 ( La. 12/ 19/ 23), 375 So. 3d 414.
Given the inherently dangerous nature of electricity, electric companies that
use and maintain high voltage power lines are required to exercise the utmost care
to reduce hazards to life as far as is practicable. Foley, 946 So. 2d at 154, citing
Simon v. Southwest Louisiana Electric Membership Corporation, 390 So.2d 1265, 1267 ( La. 1980). An electric company is held to the standard of a reasonable person
with superior attributes and is required to recognize there will be a certain amount
of negligence that must be anticipated. An electric company has an obligation to
make reasonable inspections of wires and other instrumentalities to discover and
remedy hazards and defects. This duty includes the obligation to inspect its lines to
determine if uninsulated high voltage lines pose a risk of harm, and if the utility relies on insulation by isolation, it has a duty to make certain its lines remain isolated.
Foley, 946 So. 2d 154- 55.
11 In light of our finding that Mr. Cunningham cannot succeed on a negligence cause of action against Entergy, we preteimit discussion of Mr. Cunningham' s cause of action for gross negligence, which requires a heightened showing of negligence. See Listach, 328 So. 3d at 455 Z:
Gross negligence is the entire absence of care that amounts to complete neglect of the rights of others.)
11 If it should be reasonably anticipated that persons may come into contact with
electric lines, the owner and/or operator of those lines is required to insulate them or
to give adequate warning of the danger, or to take other proper and reasonable
precautions to prevent injury. Foley, 946 So. 2d at 154; Simon, 390 So.2d at 1267.
However, an electric company is not under a duty to safeguard against occurrences
that cannot be reasonably expected or contemplated. Operators of power lines are
not required to anticipate every possible accident that may occur and are not the
insurers of safety of persons moving around power lines in the course of everyday living. Foley, 946 So.2d at 154; Simon, 390 So.2d at 1267- 1268.
When an accident or occurrence involving an electrical line could not have
been reasonably anticipated, it is not within the scope ofthe duty owed by the electric
company to the injured party because there is no ease of association between the risk
presented by the electric company' s conduct under the overall circumstances and the
resulting injury. Foley, 946 So. 2d at 154. The determination of legal cause/ scope
of the duty involves a purely legal question. Malta v. Herbert S. Hiller Corp., 2021- 021-
00209 ( La. 10/ 10/ 21), 333 So. 3d 384, 399.
Undisputed Facts
In his appellant brief, Mr. Cunningham asserts Entergy knew Borden' s
premises, as well as the transformers located there, were " extremely hazardous."
Mr. Cunningham further asserts a genuine issue of material fact remains concerning whether he was invited onto Borden' s premises ( to apply for a job), where Entergy
had a duty of care to all employees and invitees to provide a safe electrical system on the premises." ( Emphasis omitted.) Neither argument has merit.
During his deposition, Mr. Cunningham acknowledged he had no authority or permission to be within Entergy' s secured area, and none of the potential jobs Mr.
Cunningham sought to inquire about related to electrical work. There is no genuine
issue of material fact as the evidence clearly establishes Mr. Cunningham was not Entergy' s invitee. 12 Mr. Cunningham offered no evidence to establish Entergy' s transformers or
any of its equipment were " extremely hazardous" or unreasonably dangerous,
beyond the inherent, obvious danger associated with high voltage electrical
equipment. Mr. Cunningham relies on Mr. Tholbum' s October 9, 2017 email to
support his argument; however, Mr. Tholburn testified the building, not Entergy' s
electrical facilities, presented a hazard.
Additionally, Entergy' s facilities were on the roof and secured behind a fence
and, to Entergy' s knowledge, a locked gate. Warning signs were posted on the fence
and the gate, alerting anyone who ventured onto the roof of the danger of the
electrical equipment within the fenced area. Although the photographs in the
summary judgment record are grainy and of poor quality, they show Entergy' s 7-
facilities were obviously electrical in nature and contained more than an " innocent
looking wire." See Foley, 946 So. 2d at 157, quoting Dobson v. Louisiana Power
and Light Company, 567 So. 2d 569, 572 n. 1 ( La. 1990) ( stating a high-tension
transmission wire is one of the most dangerous things known to man, and its danger
is often hidden in " an innocent looking wire ...For the average citizen there is no
way of knowing whether the wire is harmless or lethal until it is too late to do
anything about it.") Considering the undisputed evidence establishing the location
and nature of Entergy' s facilities, it could not be reasonably anticipated that someone
would disregard the posted warnings and the visible barriers to access Entergy' s isolated electrical facilities.
This is precisely what Mr. Cunningham did —disregarded the posted warning
signs and the fence and accessed a restricted area, which he knew posed a serious
risk to his safety. Although Mr. Cunningham does not recall seeing the posted
DANGER HIGH VOLTAGE" warning signs, he acknowledged such a sign
indicates " some kind of high voltage in the area" and agreed "[ i] t tells you to be extra
careful." Referring to Entergy' s facilities, Mr. Cunningham stated he " wouldn' t go
in there" because " it' s full of transformers." Mr. Cunningham was taught to " stay
13 away" from high voltage electrical lines during his previous employment with
BellSouth, which required him to work near electrical lines. Mr. Cunningham stated,
I know enough about electricity[.] I wasn' t going to touch wires on a transformer[.]"
For this reason, Mr. Cunningham " figured it had to arc." Mr. Cunningham presented
no evidence to contradict Mr. May' s opinion that he had to come within one- fourth
inch of Entergy' s distribution line, which was 10 feet above the ground.
After a de novo review of the summary judgment record, we find Entergy
satisfied its summary judgment burden of proof by establishing the absence of
factual support for one or more essential elements of Mr. Cunningham' s causes of
action. In response, Mr. Cunningham failed to produce evidence of a material
factual dispute; thus, La. C. C. P. art. 966 mandates the granting of Entergy' s motion for summary judgment. See La. C. C.P. art 966( A)(3); Corbajal, 385 So. 3d at 239.
DECREE
For the foregoing reasons, we affirm the judgment granting the motion for
summary judgment in favor of Entergy Louisiana, LLC and dismissing Jared
Cunningham' s suit against Entergy with prejudice. All costs of this appeal are
assessed against Jared Cunningham.