Linnear v. Centerpoint Energy Entex/Reliant Energy

945 So. 2d 1, 2006 La. App. LEXIS 1619, 2006 WL 2193082
CourtLouisiana Court of Appeal
DecidedAugust 4, 2006
DocketNo. 41,171-CA
StatusPublished
Cited by5 cases

This text of 945 So. 2d 1 (Linnear v. Centerpoint Energy Entex/Reliant Energy) 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
Linnear v. Centerpoint Energy Entex/Reliant Energy, 945 So. 2d 1, 2006 La. App. LEXIS 1619, 2006 WL 2193082 (La. Ct. App. 2006).

Opinions

STEWART, J.

hThe plaintiffs, Dronzy and Charles Lin-near, sued for damages after Mrs. Linnear fell in her yard in an area where the defendant, CenterPoint Energy Arkla (“CenterPoint”), had recently placed a new gas line. The Linnears alleged that Cen-terPoint’s failure to restore the property to its pre-repair condition caused the accident. A jury found no fault on the part of CenterPoint, and the trial court denied motions for a new trial and a judgment notwithstanding the verdict (“JNOV”). The Linnears appealed. Finding legal error in the trial court’s failure to include an instruction on res ipsa loquitur in the charge to the jury and finding liability established by application of that doctrine, we reverse the trial court’s judgment, award damages, and render judgment in favor of appellants.

FACTS

On July 8, 2002, the Linnears noticed a gas leak at their home. CenterPoint dispatched a crew to investigate.1 The crew located the leak, turned off the gas, and placed a temporary line to maintain service at the residence. CenterPoint’s crew returned to the Linnears’ home a couple of days later to install a new gas line measuring 80 to 90 feet in length and running from the meter in the back of the Lin-nears’ house to the street in the front of the house. The crew dug a trench measuring 4 inches wide and 18 inches deep for the new gas line. Part of the trench ran [6]*6parallel to the Linnears’ driveway, with about two or three feet of distance between it and |¡¡the trench. The Linnears used the area alongside their driveway as a path for walking to and from their vehicles.

After digging the trench and placing the line in it, the crew backfilled the trench with dirt. According to testimony, the crew added up to 4 inches of dirt at a time and packed it down by stepping on it. Once the trench was full, they used a 30-pound steel tamper to further pack the ground. A backhoe was also driven over some areas. The crew leader, Herbert Randy Burkins, tested the compaction of the dirt by inserting a screwdriver into the ground. Burkins also did a visual inspection of the area. The crew did not replace sod or asphalt in areas where the trench had been dug.

The accident at issue occurred on July 16, 2002. It had rained sometime that night or during the early morning hours prior to Mr. Linnear leaving for work at 6:30 a.rm Around mid-morning, Mrs. Lin-near prepared to run an errand to her church with her granddaughter. Mrs. Linnear walked to her vehicle to place some items in the backseat on the driver’s side. As she stepped back around the open rear door to return to her porch to get her granddaughter, Mrs. Linnear’s right foot sank into the ground, and she fell forward. She felt a sharp pain in her lower back. She used the door handle on her vehicle to pull herself up and was able to continue on her errand. She called Mr, Linnear to tell him about the accident. He returned home around noon to find Mrs. Linnear in pain. He photographed the area of the fall where Mrs. Linnear claimed that her right leg sunk into the ground up to her knee.

LMrs. Linnear sought treatment for her injury and was diagnosed as having a herniated disk. She underwent surgery in December 2003. However, the injury continues to cause her pain for which she remains in treatment.

The Linnears sued CenterPoint for damages alleging that the crew’s failure to restore their property to its pre-repair condition by properly backfilling the trench and replacing .sod caused Mrs. Lin-near’s accident. According to their trial testimony, the Linnears had lived at their residence for 23 years with no accidents occurring in their yard. They also testified that after Mrs. Linnear’s accident, CenterPoint sent the crew to restore their property by replacing the sod and asphalt and spreading dirt on the ground. No further accidents happened after the restoration of their property.

The record shows that the trial court did not include an instruction on res ipsa lo-quitur as requested by the Linnears. Their counsel objected and proffered the rejected instruction into the record. The jury rejected the Linnears’ claim for damages by a vote of 10 to 2, finding no liability on the part of CenterPoint.

The Linnears filed motions for a new trial and JNOV. They argued that the verdict was clearly contrary to the law and the evidence. They specifically contended that the jury disregarded their undisputed evidence and improperly credited the testimony of the crew members, whose testimony contained inconsistencies and should have been considered unreliable. The trial court denied both motions. In its oral reasons, the trial court found that the photographic evidence belied Mrs. Linnear’s claim that | ¿she stepped into a sinkhole up to her knee. The trial court found that the photograph depicted only a footprint in a muddy area and that the evidence showed only that Mrs. Linnear slipped in the mud on a rainy day. The trial court concluded [7]*7there was no proof of how CenterPoint was responsible for the accident.

DISCUSSION

In this appeal, the Linnears argue that the jury was manifestly erroneous in finding no fault on the part of CenterPoint and that the trial court erred in not granting either the JNOY or a new trial. However, our review of the record convinces us that legal error impeded the fact-finding process as will be explained.

The manifest error standard applicable on appellate review provides that a jury’s verdict cannot be reversed unless the court, after reviewing the record in its entirety, finds there to be no reasonable factual basis for the jury’s findings and determines them to be manifestly erroneous or clearly wrong. Stobart v. State Through DOTD, 617 So.2d 880 (La.1993). However, where legal error interdicts the fact-finding process, the manifest error standard no longer applies. Ferrell v. Fireman’s Fund Ins. Co., 94-1252 (La.2/20/95), 650 So.2d 742. In such instances, if the record is complete, the appellate court is charged to make its own independent de novo review of the record. Id.

Although the Linnears did not assign as error the failure of the trial court to instruct the jury on res ipsa loquitur, this court is charged to render any judgment which is just, legal, and proper upon the record on appeal. La. C.C.P. art. 2164. The article empowers us to do justice on the record regardless of whether a particular legal point or theory was made, argued, or passed upon by the lower court. Rachal v. Rachal, 35,074 (La.App. 2d Cir.10/12/01), 795 So.2d 1286.

The Linnears’ counsel had requested inclusion of the following jury instruction by the trial court:

Res ipsa loquitur is a rule of circumstantial evidence which allows a court to infer negligence on the part of the defendant if the facts indicate the defendant’s negligence, more probably than not caused the injury. Spott v. Otis Elevator Co., 601 So.2d 1355 (La.1992).

The trial court did not include the instruction. Counsel objected and tendered the instruction as a proffer in the record, thereby preserving the issue for review.

Adequate jury instructions are those which fairly and reasonably address the issues and provide correct principles of law for the jury to apply to the issues. Smart v. Kansas City Southern R.R., 36,-404 (La.App. 2d Cir,11/6/02), 830 So.2d 581; Kennedy v. Thomas, 34,530 (La.App. 2d Cir.4/4/01), 784 So.2d 692.

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Bluebook (online)
945 So. 2d 1, 2006 La. App. LEXIS 1619, 2006 WL 2193082, Counsel Stack Legal Research, https://law.counselstack.com/opinion/linnear-v-centerpoint-energy-entexreliant-energy-lactapp-2006.