Olinde v. State

391 So. 2d 1243
CourtLouisiana Court of Appeal
DecidedOctober 6, 1980
Docket13553
StatusPublished
Cited by3 cases

This text of 391 So. 2d 1243 (Olinde v. State) 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
Olinde v. State, 391 So. 2d 1243 (La. Ct. App. 1980).

Opinion

391 So.2d 1243 (1980)

Patricia Ann OLINDE, Widow of Claiborne Olinde, Jr., Individually and as Tutrix of the Minor Children, Clarissa J. Olinde and Clayton J. Olinde
v.
STATE of Louisiana et al.

No. 13553.

Court of Appeal of Louisiana, First Circuit.

October 6, 1980.
Rehearing Denied December 15, 1980.

*1244 Fred Belcher, Jr., Lee Herrington, Baton Rouge, for Patricia Ann Olinde, Ind., Etc.

Frank Gremillion, Richard Creed, Asst. City-Parish Atty., Baton Rouge, for City Parish of Baton Rouge.

Lawrence Durant, Baton Rouge, for State of Louisiana through its Department of Highways.

Kenneth Barnette, Baton Rouge, for Louisiana Elec. Co.

*1245 Before ELLIS, COLE and WATKINS, JJ.

COLE, Judge.

Plaintiff-appellant, Mrs. Patricia A. Olinde, individually and on behalf of her two minor children, filed suit against four defendants alleged to be responsible for the wrongful death of her husband, Claiborne Olinde, Jr. Mr. Olinde was electrocuted when he touched a metal sign that had come into contact with an underground electric cable. The trial court determined that there was no negligence on the part of the State of Louisiana, through the Department of Transportation and Development. The State had designed and implemented the lighting system which was served by the underground cable. The court also found there was no negligence on the part of Louisiana Electric Company, the contractor that was hired by the state and who actually installed the lighting system. The court found the other two defendants, the City of Baton Rouge and the Parish of East Baton Rouge, had breached their duty to exercise reasonable care in the installation of the traffic sign that had become electrically charged. The City-Parish was ordered to pay plaintiff $371,215.00 plus costs.

The plaintiff and the City-Parish have both appealed. The City-Parish contests the trial court's finding of liability and challenges the damages as being excessive. Plaintiff raises three issues to be considered on appeal. She asserts the trial court erred in finding no negligence on the part of the State of Louisiana, through the D.O.T.D. Plaintiff further argues the court erred in finding no negligence on the part of Louisiana Electric Company. Finally, plaintiff argues the trial court failed to award her adequate damages. She seeks to have the amount of damages raised to $685,976.20. Because we find the trial court was not clearly wrong nor did it commit manifest error as to any aspect of the case, we affirm. Arceneaux v. Domingue, 365 So.2d 1330 (La.1978).

The details of the case tell the story of a tragic and freakish accident. On August 4, 1975, Claiborne Olinde, Jr., twenty-six years old, was walking along the sidewalk next to College Drive near the I-10 interchange. He stopped momentarily near a metal post that supported a directional traffic sign. He either intentionally touched or accidentally hit the signpost. He held the post for a moment and then fell to the ground. Police officers arrived at the scene and attempted to revive him but he was pronounced dead upon arrival at Doctor's Memorial Hospital.

A post accident investigation revealed that Mr. Olinde had been electrocuted. The sign he touched had been energized with 480 volts of electricity. This unique situation had developed when city-parish workers had installed the traffic sign some eighteen days earlier. The evidence showed that the metal signpost had pierced an underground electric cable. Only one of the two wires in the cable was cut so that the current continued to flow. The cable was a part of the lighting system that had been designed by the state and installed by Louisiana Electric Company in 1969. The lighting system was controlled by a sensing device that energized the system only when it became dark. Therefore, at the time the sign was installed (during the daytime), the underground cable was not carrying any electric current. Consequently, the city-parish workers had no indication that the metal post of the sign had pierced the underground line. Experts at the trial hypothesized that both the damp ground and the metal post were receiving current from the underground line. Mr. Olinde's body served as a conductor for this current when he touched the sign.

NEGLIGENCE OF THE STATE, THROUGH D.O.T.D.

Evidence at trial established that the underground cable was buried eighteen inches deep. All witnesses knowledgeable in the field of electricity agreed the National Electric Code is the code applicable to the work done by the state. The 1965 code, which is the code in effect at the time the lighting system was designed, required a *1246 minimal depth of eighteen inches. (It is irrelevant that the code was later changed to require a depth of twenty-four inches).

Plaintiff argues the State was negligent in not burying the cable deeper than the depth required by the code. There was much discussion of this issue at trial. Plaintiff's two expert witnesses testified that in their professional opinion the code did not establish adequate standards. The defendants' two expert witnesses said they felt constructions built in accordance with the code were sufficiently safe. In cases where there is conflicting testimony of expert witnesses the appellate court must rely on the fact finder's impressions. This finding of fact will not be overturned unless manifest error appears in the record. St. Pierre v. Gabel, 351 So.2d 821 (La.App. 1st Cir. 1977). Therefore we accept the trial court's findings that defendants' experts established the eighteen inch minimum depth was sufficiently safe, according to the practice and requirements in effect at the time the system was designed.

Plaintiff urges the accident would not have occurred if the cable had been buried twenty-four inches. This is true and unquestionably establishes the actions of the State were a cause in fact of this unfortunate accident. However, the trial court found there was no liability because there was no breach of duty. The State acted reasonably in installing the cable according to the standards of the National Electric Code.

It is well established in Louisiana jurisprudence that mere compliance with a code such as the National Electric Code or the National Electric Safety Code does not per se relieve the defendant of being found negligent. McKowen v. Gulf States Utilities, 358 So.2d 675 (La.App. 1st Cir. 1975). A determination of negligence must be made in light of the circumstances of each case. Burley v. La. Power & Light Co., 319 So.2d 334 (La.1975) rehearing denied 1975. The trial court found several circumstances which justified the State's action of burying the cable the minimum eighteen inches. One important factor is that the State delivered copies of the "as-built" plans to the City. These plans are drawings that are made as the electrical system is actually being installed. The State was reasonable in assuming the City would refer to these drawings to locate the underground cable before digging. Another factor that justifies minimal burial is the State insulated the cable to a greater extent than was called for by the code. The evidence indicates the code called for a 45 mill insulation. The State used a 65 mill insulation plus a 30 mill outer jacket. The entire line was encased in a conduit for added protection. Although this heavy-duty insulation was obviously insufficient to protect the line from the sharp edge of the metal signpost, the record reflects this amount of insulation would have been more than adequate to protect against most foreseeable disturbances.

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391 So. 2d 1243, Counsel Stack Legal Research, https://law.counselstack.com/opinion/olinde-v-state-lactapp-1980.