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FOR IMMEDIATE NEWS RELEASE NEWS RELEASE # 68

FROM: CLERK OF SUPREME COURT OF LOUISIANA

The Opinions handed down on the 29th day of November, 2006 , are as follows:

BY WEIMER, J. : 2006-C -0983 JEREMY DEAN FOLEY AND JOY DAWN FOLEY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, NIKOLAS FOLEY AND DYLAN FOLEY v. ENTERGY LOUISIANA, INC., FELICIANA, A LOUISIANA PARTNERSHIP IN COMMENDAM AND LATTER & BLUM, INC. (Parish of Orleans) For the reasons expressed above, we affirm the conclusion of the court of appeal insofar as it assesses Entergy with at least partial responsibility for the damages incurred by the plaintiffs and assigns no fault to either WFMFT or Latter & Blum. However, we reverse the judgment of the court of appeal insofar as it amends the district court's judgment with respect to allocation of fault. That portion of the district court judgment allocating thirty-five percent of the fault for this accident to Entergy and twenty percent to Jeremy Foley is reinstated. AFFIRMED IN PART; REVERSED IN PART AND RENDERED. VICTORY, J., dissents and assigns reasons. TRAYLOR, J., dissents and assigns reasons and additionally concurs.

11/29/06 SUPREME COURT OF LOUISIANA No. 06-C-0983 JEREMY DEAN FOLEY AND JOY DAWN FOLEY, INDIVIDUALLY AND ON BEHALF OF THEIR MINOR CHILDREN, NIKOLAS FOLEY AND DYLAN FOLEY VERSUS ENTERGY LOUISIANA, INC., FELICIANA, A LOUISIANA PARTNERSHIP IN COMMENDAM AND LATTER & BLUM, INC.
ON WRIT OF CERTIORARI TO THE COURT OF APPEAL, FOURTH CIRCUIT, PARISH OF ORLEANS

WEIMER, Justice This case arises out of a suit for personal injuries sustained when twenty-fouryear-old roofer Jeremy Foley ("Foley") and a co-worker raised a twenty-foot aluminum ladder into an overhead, uninsulated 8,000 volt electric power distribution line owned and operated by Entergy Louisiana, Inc. ("Entergy"). catastrophically injured and requires life-long institutionalized care. Following a bench trial, the district court rendered judgment in favor of plaintiffs and against defendant Entergy, awarding damages totaling $4,735,297.70 to Foley, his wife, and their two minor children.1 In rendering its judgment, the district court found that Foley; his employer, Robertson Roofing and Siding, Inc. ("Robertson Roofing"); his co-worker, Jason Rodriguez ("Rodriguez"); and the power company, Entergy, each negligently contributed to the accident, and apportioned responsibility as follows: 20% to Foley, 5% to Rodriguez, 40% to Foley was

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The amount of damages awarded has never been contested on appeal and, thus, is not before us.

Robertson Roofing, and 35% to Entergy. On appeal, the court of appeal affirmed the district court's finding of negligence on the part of Entergy, but reversed the court's allocation of fault, reducing Foley's percentage of fault to 5% and increasing Entergy's fault to 50%. We granted certiorari to review the court of appeal's judgment affirming the district court's liability determination, but reversing the apportionment of fault between the respective actors by the trier of fact. Finding no error in the court of appeal's conclusion assessing the defendant power company with at least partial responsibility for the damages occasioned by the accident, we nevertheless conclude that the court of appeal erred in reversing the district court's assessment of the percentages of fault attributable to the respective actors. Finding no clear or manifest error in apportionment of fault by the trier of fact, we reverse the decision of the court of appeal regarding apportionment and reinstate the judgment of the district court. FACTS AND PROCEDURAL HISTORY The accident that gives rise to this litigation occurred on the afternoon of November 12, 1998, at the Feliciana Apartments, located on Manhattan Boulevard in Harvey, Louisiana. The Feliciana Apartments are adjacent to and identical in layout to their sister apartments, Alouette. The Feliciana/Alouette complex consists of approximately 23 three-story apartment buildings that receive electric power through overhead transmission lines owned and operated by Entergy. For approximately two months preceding the accident, Foley and his coworker, Jason Rodriguez, both employees of Robertson Roofing, had been performing repairs to the roofs at the Alouette Apartments. In order to access the roofs of the apartment buildings, Foley and Rodriguez used an aluminum "threestory" extension ladder supplied by their employer. While capable of being extended
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to a length of 40 feet, when unextended the ladder measured 20.25 feet in length.2 Foley and Rodriguez followed the same procedure each time they positioned the ladder. The men would slide the ladder off the rack of the company's pick-up truck and lay it flat on the ground, perpendicular to the apartment building on which they planned to work. One of the men would then "foot" the ladder by placing his foot against the bottom rung, while the other individual would "walk" the ladder up by walking toward the building, raising the ladder rung by rung as he passed under it, until it was upright and leaning against the side of the building. By the morning of the accident, Foley and Rodriguez had employed this same procedure to position the ladder at the apartment complex at least 60 to 70 times, each time raising the ladder without incident, and, more specifically, without making contact with any overhead power lines. On November 12, 1998, Foley and Rodriguez had completed their work at the Alouette Apartments and had moved on to the Feliciana buildings. An overhead transmission line runs in front of Buildings A, C, and D of the Feliciana complex, which are adjacent to each other. On the morning of the accident, Foley and Rodriguez performed repairs to the roofs at Feliciana Buildings A, B, and C, raising their ladder under the transmission line in front of Buildings A and C without incident. Following a lunch break, the two men proceeded to Building D of the complex to begin repairs to the roof of that building. In front of Building D, Foley and Rodriguez followed the same procedure they had followed on 60 to 70 previous occasions, and in particular, that very morning, under the same transmission line that also runs in front of Buildings A and C. Positioning the base of the ladder approximately 9.4 feet from the wall of Building D, on the grass between the
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The ladder was raised in its unextended state. 3

sidewalk and the building, Rodriguez "footed" the rung closest to the building, while Foley "walked" the ladder up, rung by rung, toward the building. As the top of the ladder neared the overhead transmission line, Foley became distracted and abruptly looked down, rubbing his eye as if something had become lodged in it. At that moment, the ladder contacted the power line. Rodriguez was thrown backward by the surge of the electric current running through the ladder, landing behind an air conditioning unit. Foley fell to the ground, unconscious. Entergy's sole method of insulating its live power lines at the complex of three story buildings is "insulation by isolation," a term used in the industry to signify that an uninsulated line is placed high enough to avoid contact by persons and things. There are no warning signs or instrumentalities, such as orange foam balls, on or in the vicinity of the uninsulated lines. Further, the transmission line that runs in front of Feliciana's Building D is part of an Entergy single phase line configuration that consists of two separate wires: a neutral "shield" wire that does not carry an electrical current, and a live "phase" wire that carries approximately 8,000 volts of electricity. At Building D, the neutral shield wire was strung roughly parallel and directly above the live phase wire, with a distance of approximately three feet separating the lines. At 16 of the 23 identical buildings in the Feliciana/Alouette complex, the neutral shield wire was placed directly below the live phase wire, thereby affording an extra margin of safety to those working under the transmission line. At only 7 of the 23 buildings, including Building D, was the live phase wire placed below the higher, harder to reach neutral shield wire. Moreover, an examination of ten other three-story apartment complexes in the area revealed that at all ten complexes, Entergy employed

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the "unshielded" configuration,3 with the neutral shield wire located below the live phase wire. The seven buildings at Feliciana using the "shielded" configuration were the only ones in the area to do so. At the point in front of Building D at which Foley and Rodriguez positioned their ladder, the live phase wire that carried 8,000 volts of electricity was strung at a vertical distance of 18.83 feet above the ground; the neutral shield wire that was strung above the live phase wire was strung at a height of 21.25 feet from the ground. It is undisputed that the energized wire in front of Building D was the only wire in the complex strung at a height of less than 20 feet above the ground. It is also undisputed that approximately 12 years prior to Foley's accident, two painters, Carl and Craig Davis, received electrical shock injuries when Craig Davis raised an aluminum ladder into the same transmission line that runs in front of Feliciana's Building D, approximately 34.45 feet from the exact site of Foley's accident. Between the time of the Davis accident and the instant accident, Entergy did not make any changes or effect any alterations to its power line. As a result of the accident, Foley sustained severe and catastrophic brain damage that has left him functioning at the level of a four year old. His cognition, intellect, memory, judgment, orientation, attention, ability to process thoughts, abstract reasoning, and emotional stability have all been severely impaired. He will require care in an institutionalized setting for the remainder of his life. At the time

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The use of the terms "shielded"configuration and "unshielded" configuration, when referring to the position of the neutral and live phase wires, is admittedly confusing. In the electric power transmission industry, the "shielded" configuration typically refers to the situation in which the neutral, shield wire is placed above the live or energized phase wire in order to protect or "shield" the live wire from lightning strikes and a possible disruption of service. The "unshielded" configuration, by contrast, is one in which the live phase wire is placed above the neutral, shield wire, thus, leaving the live wire "unshielded" from possible lightning strikes. The "unshielded" configuration, with the neutral wire below the live phase wire, provides an added margin of safety to those below the wires because one would contact the neutral shield wire before contacting the dangerous energized wire. 5

of the accident, Foley was a twenty-four year old married male, with two small sons, Nikolas and Dylan. Foley and his wife, Joy, individually and on behalf of their two minor children, brought a suit for damages against Entergy and two other entities: WMFMT Real Estate Limited Partnership ("WMFMT"), the owner of the Feliciana Apartments; and Latter & Blum Property Management, Inc. ("Latter & Blum"), the agency that managed the property. Robertson Roofing and its insurer filed a petition of intervention, seeking to recover amounts paid to Foley pursuant to the Worker's Compensation Act. Both WMFMT and Latter & Blum were dismissed from the case on summary judgment, prior to trial. The case was subsequently tried as a bench trial. At the commencement of the proceedings, the district court ruled that it would not allow Entergy to introduce evidence of fault on the part of previously dismissed codefendants, WMFMT and Latter & Blum. Entergy submitted a proffer. At the conclusion of trial, the district court rendered judgment in favor of plaintiffs and against Entergy, awarding Jeremy Foley $4,735,297.70 in general and special damages. Joy Foley was awarded $105,000.00 for loss of consortium, and Nikolas and Dylan Foley were each awarded $70,000.00. Robertson Roofing and its insurer were awarded $575,673.87 on the intervention claim. In reaching its verdict, the district court found that Entergy was responsible for several negligent acts or omissions that caused Foley's injuries. In particular, the court found that the injury to the Davis brothers nearly 12 years prior to Foley's accident, at virtually the same spot in front of Building D and by the same unmodified instrumentality, made this accident foreseeable. Despite Entergy's actual knowledge that an injury had occurred at virtually the same exact spot at which Foley's injury occurred, the district court found that Entergy took no action to make that power line
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safer for people passing in proximity to the line. Entergy did not adequately inspect its line, raise the line, adjust the final sag in the line and/or invert the neutral shield wire with the live phase wire. The court concluded that Entergy's lack of uniformity in stringing its lines at the Feliciana complex contributed to the accident. It specifically rejected Entergy's explanation that use of the shielded configuration, with the neutral wire above the live phase wire, was reasonable as a means of protecting against lightning strikes, noting that only 7 of the 23 buildings in the complex used this configuration. The court found that, at only 18.83 feet above the ground, Entergy's live phase wire in front of Building D presented an unreasonable risk of harm. This conclusion was based on a number of factors: (1) the prior accident at the same site; (2) the presence of tenants and other persons regularly traversing under the live phase wire; (3) the fact that the power lines in front of Building D are substantially below the highest points of wires strung in the immediate area, including the roof line of Building D, and below the other phase lines at the complex; and (4) the minimal cost to Entergy of remedying the condition. While the district court found Entergy responsible for fault that was a cause-infact and legal cause of Foley's injuries, the court did not find Entergy to be the only negligent actor. The court found that Foley's employer, Robertson Roofing, was also negligent in failing to properly train and supervise Foley and Rodriguez and in failing to provide the men with a safe work environment. The court determined that Foley himself was negligent in using an aluminum ladder in the vicinity of live power lines, and that his co-worker, Jason Rodriguez, was also at fault because he was clearly aware of the danger of overhead power lines and the risks attendant on raising an aluminum ladder in the vicinity of power lines and, nevertheless, proceeded to assist Foley in raising the ladder. Based upon the court's assessment of their relative
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degrees of culpability, the court assigned to each negligent actor the following percentages of fault: Robertson Roofing, 40%; Jeremy Foley, 20%; Jason Rodriguez, 5%; and Entergy, 35%. Both Entergy and Foley appealed the district court judgment. On February 15, 2006, a five-judge panel of the Court of Appeal, Fourth Circuit handed down its opinion in this matter. Foley v. Entergy Louisiana, Inc., 04-1967 (La.App. 4 Cir. 2/15/06), 925 So.2d 638. The court first addressed Entergy's contention that the district court erred in denying Entergy the right to introduce evidence at trial of the fault of Latter & Blum and WFMFT, entities that had been dismissed from the suit prior to trial on motions for summary judgment as statutory employers of Foley. Citing this court's decisions in Keith v. United States Fidelity & Guaranty Company, 96-2075 (La. 5/9/97), 694 So.2d 180, and Dumas v. State, Department of Culture, Recreation & Tourism, 02-0563 (La. 10/15/02), 828 So.2d 530, the court of appeal held that LSA-C.C. art. 2323 requires that the fault of every person responsible for a plaintiff's injuries be compared, whether or not such person is a party, and regardless of the legal theory of liability asserted against such person. Accordingly, the court concluded that the district court erred in depriving Entergy of the opportunity to present evidence of third party fault. However, after reviewing the evidence proffered by Entergy, the court of appeal concluded that Latter & Blum and WFMFT were not in any way at fault in causing Foley's accident, and therefore declined to assign a percentage of fault to these entities. The court of appeal next reviewed the percentages of fault assigned to the various negligent actors by the district court. Evaluating the conduct of the parties pursuant to the factors outlined in Watson v. State Farm Fire and Casualty Insurance Co., 469 So.2d 967 (La. 1985), the court of appeal concluded that the
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district court was "clearly wrong" in its apportionment of fault. The court reasoned that because Entergy had knowledge of the danger presented by the wires as a result of the previous accident and did little if anything to take corrective action, and because it was the superior actor with the duty to exercise "utmost care" to reduce hazards to life, it should bear a greater percentage of the fault for this accident. Because Foley was the party with the inferior capacity to avoid and/or correct the hazardous condition, the court found that he should bear a lesser percentage of fault. Accordingly, the court of appeal increased the fault assigned to Entergy to 50% and reduced the percentage of fault assigned to Foley to 5%. The fault assigned to the others was left unchanged. Upon Entergy's application, we granted certiorari to review the liability determination in this case, and the court of appeal's action in reversing the district court's allocation of the percentages of fault attributable to the respective actors. Foley v. Entergy Louisiana, Inc., 06-0983 (La. 6/30/06), 933 So.2d 130. STANDARD OF REVIEW The Louisiana Constitution provides that our jurisdiction in civil cases extends to both law and facts. LSA-Const. art. V

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