Court: Louisiana Court of Appeal; July 12, 2017; Louisiana; State Appellate Court
A utility company, Entergy Gulf States Louisiana, LLC (EGSL), appeals a jury's award in a wrongful death and survival action following the electrocution of Aaron Dan Thompson (Dan) on September 6, 2013. During a conversation with Jenkins Brent Armstrong and Shane Courrege on the roof of the Spanish Moon bar, Dan reached for an electrical wire, which was in violation of the National Electrical Safety Code. The wire delivered nearly 8,000 volts of electricity, resulting in Dan's death. Charles James Thompson, Dan's father, filed a lawsuit against EGSL and others, eventually proceeding solely against EGSL after dismissing claims against other defendants.
EGSL stipulated to liability before the trial, which focused on fault allocation and damages. The jury found EGSL 65% at fault and Dan 35% at fault, awarding $450,000 in survival action damages, $1,350,000 for wrongful death (including loss of felicity, love, affection, and companionship), and $6,068.80 for funeral expenses. The total judgment against EGSL amounted to $1,173,944.70.
On appeal, EGSL argues three main errors: (A) the trial court incorrectly ruled that EGSL had a duty to admit responsibility, allowing prejudicial evidence that influenced the jury's decision; (B) alternatively, the court abused its discretion in awarding $1,350,000 in wrongful death damages; and (C) the court also abused its discretion in awarding $450,000 in survival-action damages. The appeal primarily questions the appropriateness of allowing evidence regarding EGSL's negligence in relation to the positioning of the electrical wire.
At trial, the plaintiff presented evidence that shortly after Dan's electrocution, EGSL was aware that the electrical wire Dan touched was in violation of the National Electrical Safety Code (NESC) due to insufficient clearance from the building. Mr. Thompson testified regarding EGSL's potential negligence and alleged attempts to conceal this information. The trial court permitted this testimony, emphasizing that the pleadings demanded damages for wrongful conduct. Although EGSL admitted liability, it maintained that the plaintiff must prove fault, causation, and damages, as established in Gaspard v. Safeway Insurance Company.
In civil cases, the duty to disclose information is usually triggered by specific discovery requests, as per Wright v. Louisiana Power and Light. EGSL admitted to the clearance violation in response to a request for admissions. While there are circumstances where a tortfeasor must disclose known wrongdoing, as discussed in Bunge Corporation v. GATX Corporation, no such requirement was established in this case. The Bunge decision outlined that failure to disclose known dangers can lead to misrepresentation claims when the other party relies on the appearance of safety. Additionally, a duty to disclose typically arises in confidential or fiduciary relationships, which are broad and include various associations of trust, such as attorney-client or principal-agent relationships.
Evidence presented at trial indicated that EGSL became aware of a NESC violation only after Dan’s electrocution. Mr. Thompson claimed, and the trial court agreed, that EGSL had a duty to disclose this knowledge. However, Mr. Thompson did not face any danger from the wire post-accident, did not rely on an appearance of safety, and lacked a confidential relationship with EGSL that would necessitate such a duty under Louisiana law. The trial court erred by allowing the jury to consider arguments and evidence suggesting EGSL failed to disclose its negligence. This improper admission of evidence tainted the jury's verdict, necessitating a de novo review of the case. Additionally, improper witness examinations and arguments by plaintiff’s counsel appealed to passion and prejudice, further affecting the jury's damage assessment.
Survival and wrongful death actions, while arising from the same tort, are distinct and address different injuries. A survival action exists from the time of the tort and allows recovery for the victim's damages until death, while a wrongful death action arises upon the victim's death to compensate beneficiaries for their losses. Louisiana Civil Code article 2315.2(A)(2) permits parents to sue for damages if the deceased leaves no spouse or children. Wrongful death damages include loss of love, affection, companionship, services, support, and related expenses.
Mr. Thompson testified about significant emotional distress following his son Dan's death due to electrocution, experiencing severe insomnia and requiring medication that was ineffective. He expressed particular difficulty on Fridays, the day of Dan's death. His wife, Ping Thompson, supported his account, recalling a distressing incident where Mr. Thompson expressed a desire to die, prompting her to change her work schedule. Although it is challenging to assign a monetary value to a child's life, the legal system allows for financial compensation in cases of wrongful death due to negligence, as established in Anderson v. New Orleans Public Service, Inc. Dan was 34 years old, lived independently, and did not provide financial support to Mr. Thompson. The court awarded Mr. Thompson $450,000 for the wrongful death of his adult son.
In cases of survival actions, where a person dies due to another's fault without leaving a spouse or children, parents can recover damages for the deceased's pre-death suffering, per La. C.C. art. 2315.1(A)(2). Factors for determining survival damages include the severity and duration of pain, any pre-impact fear, and other damages the deceased experienced before death. The court can award damages even with minimal evidence of the deceased's suffering, including fear or mental anguish during the incident. Recovery in a survival action focuses on damages incurred from injury until death, such as pain, suffering, and loss of earnings, but requires evidence of conscious suffering to justify pre-death pain and suffering awards.
In Sacco v. Allred, the jury heard testimony from three key witnesses regarding Dan's mental and physical pain and suffering prior to his death from electrocution. Forensic engineer Frederick Brooks indicated that while he could comment on the physical effects of electricity, he lacked the medical expertise to precisely determine the duration it takes for a person to lose consciousness after contact with an electrical source. He noted that contact with live wires typically causes involuntary muscle contractions, which can prevent a person from releasing their grip.
Witnesses Brent and Shane, who were present during the incident, described the event in detail. Brent observed Dan's immediate reaction upon grabbing the wire, stating it happened quickly and that Dan seized up and fell back without making any sounds or showing signs of consciousness afterward. Shane did not witness Dan grab the wire but noted that when he looked, Dan's hand was on fire and he appeared very still. Shane estimated that it felt like a long time, about a minute, before Dan's hand melted off and he slumped onto the roof, clarifying that someone suggested Dan likely died instantly due to the voltage.
The legal context included comparisons to another case where witnesses described varying states of consciousness of a victim following a car accident, highlighting the complexities involved in assessing the moments leading to death.
The trial court found that the victim, Dan, "did not consciously suffer as a result of the accident," a determination upheld by the reviewing court. The evidence presented by Mr. Thompson did not sufficiently prove that Dan was conscious or suffered after grabbing the wire. An expert witness, Brooks, noted that while loss of consciousness is typically quick, he could not definitively assert that Dan's loss of consciousness was not instantaneous due to his lack of medical expertise. The severe nature of Dan's injuries suggested potential pain; however, if he died instantaneously, he could not have felt the pain from the electrocution. Consequently, the court determined that the record did not support a survival action award and vacated it. The jury's wrongful death award was reduced to $450,000. Costs of the appeal were assigned to the appellee, Charles Thompson. The Crawfords were defendants as co-owners of the property where the incident occurred. Expert testimony included insights from Brooks on electrical safety codes and practices, while Dennis Lytle from EGSL testified about securing the scene post-accident. Additionally, Mr. Thompson, an electrical engineer, observed that the electrical wire was too close to the building. The plaintiff’s counsel posed emotionally charged questions to Lytle, suggesting a deliberate appeal to the jury's emotions.
Common decency and moral obligation were questioned regarding the failure to inform a family about knowledge related to their son’s death. The trial court sustained EGSL’s objection to inquiries about this moral responsibility, deeming the question’s prejudicial effect greater than its probative value. Mr. Thompson testified about his use of medication, indicating that taking half a pill helped him initially but required another half to maintain sleep. In wrongful death cases, emotional loss is a key damage element, as established in Kennedy-Fagan, where the court ruled against multiple awards for a single emotional loss, determining that only one award should be granted. Similarly, in the current case, the jury awarded Mr. Thompson separate amounts for emotional loss, but upon review, the decision was made to consolidate this into a single award. This aligns with precedents where excessive separate awards for emotional distress were reduced by appellate courts.
