Valiant Ins. Co. v. City of Lafayette

574 So. 2d 505, 1991 WL 13006
CourtLouisiana Court of Appeal
DecidedFebruary 6, 1991
Docket89-888
StatusPublished
Cited by5 cases

This text of 574 So. 2d 505 (Valiant Ins. Co. v. City of Lafayette) 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
Valiant Ins. Co. v. City of Lafayette, 574 So. 2d 505, 1991 WL 13006 (La. Ct. App. 1991).

Opinion

574 So.2d 505 (1991)

VALIANT INSURANCE COMPANY and American General Fire & Casualty Company Plaintiffs-Appellees,
v.
CITY OF LAFAYETTE Defendant-Appellant.

No. 89-888.

Court of Appeal of Louisiana, Third Circuit.

February 6, 1991.

*506 Onebane, Donohoe, Bernard, Torian, Diaz, McNamara & Abell, Roger E. Ishee, Lafayette, for plaintiffs-appellees.

Voorhies & Labbe, Michael D. Hebert, Lafayette, for defendant-appellant.

Before DOMENGEAUX, C.J., and LABORDE, and YELVERTON, JJ.

LABORDE, Judge.

This suit arises out of a fire occurring in the early morning hours of August 16, 1985, at the residence of Henry and Caritta Boutte. The Bouttes live at 517 East Demanade Drive in Lafayette, Louisiana. Plaintiffs, Valiant Insurance Company and American General Fire and Casualty Company, as subrogees of the Bouttes, instituted this action to recover damages caused by the fire from defendant, City of Lafayette (City). Judgment on the merits was rendered by the trial court in favor of *507 plaintiffs for the amount of $73,365.42. The City now appeals. We affirm.

On August 15, 1985, Hurricane Danny was slowly moving out of the Lafayette area, although the City was still experiencing some intermittent storms. The East Demanade Drive area, where the Bouttes' house is located had been without electricity for an extended period during the hurricane. On the morning of the 15th, the City attempted to restore power to Demanade Drive. The attempt was not wholly successful, for, approximately an hour later, all three fuses at the Pinhook Road and River Road substation blew. As a result, City engineers, Ronald Gary and James Richard, were instructed to canvass the Demanade Drive area for down lines. Mr. Gary testified at trial that he discovered no primary lines down in the Demanade Drive area during his inspection.

The testimony of James Daigle contradicted that of Mr. Gary. Mr. Daigle resides at 512 Demanade Drive. Sometime during the morning of the 15th, Mr. Daigle noted that a primary line strung between 421 Demanade Drive and 517 Demanade Drive was down. Mr. Daigle testified that the line had fallen over a gas stub in front of the home located at 421 Demanade Drive. He further explained to the court that despite the fact that City utility personnel passed up and down the road several times, the line remained down all day.

In the early morning hours of the next day, August 16, 1985, Mr. Daigle, was in his front yard, when he came across an individual who represented that he was with the City. This individual informed Mr. Daigle that the City was about to restore power to the Demanade Drive area. At that time, Mr. Daigle pointed out the down primary line. The individual then tried to notify someone from the City on his walkie-talkie but was unsuccessful. Mr. Daigle testified that the unidentified individual then left and was not seen again.

Richard Chappuis was in front of his house on 417 Demanade Drive when the City restored power. Mr. Chappuis testified that he was walking down the street with an unidentified employee of the City utility department, when he noticed the down primary line located on 421 Demanade Drive, i.e. the same line that Mr. Daigle had observed earlier. Mr. Chappuis stated that the line was flashing and sparking which caused several bushes to ignite around the gas stub. As he and the City employee made their way down Demanade Drive, they noticed that the Bouttes' house was on fire. The City employee radioed the fire department which responded immediately and ultimately extinguished the blaze.

The testimony of the City utility department personnel who repaired the line that was down revealed that the 7,000 volt primary line was completely severed into two pieces. Their testimony also established that part of the line extended down from the utility pole into the bushes which surrounded the gas stub.

The City argues that plaintiffs have failed to meet their burden of proving that it is liable for the fire at the Bouttes' residence. A supplier of electricity, such as the City in this case, is required to recognize that its conduct involves a risk of causing harm to another if a reasonable person would do so while exercising such attention, perception of the circumstances, memory, knowledge of other pertinent matters, intelligence and judgment as a reasonable person would have. If the electric utility has in fact more than a minimum of these qualities, it is required to exercise these superior qualities in a manner reasonable under the circumstances. Levi v. Southwest Louisiana Electric Membership Cooperative, 542 So.2d 1081 (La.1989). Electric utilities who utilize and maintain high power lines are required to exercise the utmost care to reduce hazards to life as far as practicable. Vincent v. Beauregard Electric Cooperative, Inc., 536 So.2d 798 (La.App. 3d Cir.1988), writ denied, 546 So.2d 164 (La.1989). However, an electric utility is not required to guard against situations which cannot be reasonably expected or contemplated. Vincent, supra. In order for a violation or breach of duty to constitute negligence, it must be shown that the utility had knowledge, actual or *508 constructive, of the danger and that it failed to correct the same or warn of the danger. Horton v. Valley Electric Membership Corp., 461 So.2d 375 (La.App. 2d Cir.1984). A utility will be considered to have constructive knowledge of an electrical hazard which has existed for a period of time which would reasonably permit discovery had the utility adequately performed its duties. Levi supra.

After careful consideration of the record in this case, we determine that the City had the responsibility not to re-energize the line when it knew or should have known that the down primary wire on Demanade Drive would cause an immediate danger. Mr. Daigle testified positively that the line had been down since the morning of the day before the fire occurred. He also stated that he informed a City employee that the line was down and that that individual attempted to contact the utility before it re-energized the system. While we realize that the City engineer, Ronald Gary, testified that there were no lines discovered to be down during his inspection on the afternoon of the 15th, the trial court obviously chose to believe Mr. Daigle's testimony as to the fact that the line was down all day and as to the fact that a City employee had knowledge of the dangerous condition prior to re-energization. A reviewing court may not set aside the lower court's finding of fact in the absence of manifest error and where there is a conflict in testimony reasonable evaluations of credibility and reasonable inferences of fact should not be disturbed on review, even though the reviewing court may feel that its own evaluations and inferences are as reasonable. When findings are based on determinations regarding the credibility of witnesses, the manifest error standard demands great deference to the trier of fact's findings; for only the fact finder can be aware of the variations in demeanor and tone of voice that bear so heavily on the listener's understanding and belief in what is said. Rosell v. ESCO, 549 So.2d 840 (La.1989); Canter v. Koehring, 283 So.2d 716 (La.1973). We find no manifest error in the trial court's finding that defendant had knowledge that its down primary wire would create an immediate danger if the system was re-energized.

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