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3/23/01 (Revised 4/10/01)

SUPREME COURT OF LOUISIANA
No. 00-C-1372 DON PERKINS, ET AL. versus ENTERGY CORPORATION, ET AL. consolidated with No. 00-C-1387 JOSEPH BUJOL, III, ET AL. versus ENTERGY CORPORATION, ET AL. consolidated with No. 00-C-1440 ROBERT HRACEK, ET AL. versus ENTERGY CORPORATION, ET AL. On Writ of Certiorari to the Court of Appeal, First Circuit, Parish of Iberville

KIMBALL, J.* On April 6, 1994, three employees at an air separation plant near Plaquemine, Louisiana, owned and operated by Air Liquide America Corporation ("ALAC"), were severely injured in an oxygen flash fire. One of those employees, Ray Hracek, died of his injuries several days after the incident. The other two injured employees, Joseph Bujol and Don Perkins, sustained 90% third degree burns. The flash fire occurred James C. Gulotta, Justice Pro Tempore, sitting for Associate Justice Harry T. Lemmon.
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after the ALAC facility unexpectedly shut down due to a power disturbance and while the three employees were assisting in restarting the plant. Don Perkins, Joseph Bujol, their families, and Ray Hracek's surviving family members filed suit against several defendants, but proceeded to trial against only Entergy Services, Inc. ("ESI"), Gulf States Utilities Company ("GSU"), and Louisiana Power and Light, Inc. ("LP & L").1 The plaintiffs allege that the power disturbance was partially to blame for the occurrence of the flash fire. PROCEDURAL HISTORY After a bench trial, the trial court concluded that the negligence of ESI, LP & L, and GSU was a cause of the accident. The court assessed the electric utility companies with 40% of the fault for the plaintiffs' injuries. Additionally, the court determined that ALAC and Big Three were at fault and assessed those defendants with 40% and 20% of the fault, respectively. Total damages determined by the trial court were $22,728,450.00 (subject to reduction for fault allocations). The electric utility companies appealed. Determining that the trial court was manifestly erroneous in holding the electric utility companies liable for plaintiffs' damages, the court of appeal reversed. The court of appeal found: (1) that the trial court imposed the wrong legal duty on the utility companies; (2) that even under a less stringent standard of care, the defendants breached their duty to properly operate and maintain their power lines; but (3) that the plaintiffs had not proved by a preponderance of the evidence that the power disturbance was a cause in fact of the

Originally the plaintiffs also named ALAC; Big Three Industries, Inc., the plant's prior owner, and its insurers; Exxon Corporation; and Dresser Industries, Inc., the manufacturer of the automatic pressure control valve at the site of the fire, as defendants in this suit. Both the trial court, the court of appeal, and the plaintiffs, in their brief to this court, indicated that the plaintiffs settled all their claims with these other defendants prior to the beginning of trial.
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flash fire; and (4) that the plaintiffs had not established that the power disturbance was a legal cause of the plaintiffs' injuries. The plaintiffs filed a writ application with this court, assigning as error (1) the court of appeal's failure to allow them to reargue the case in front of a larger appellate panel; (2) the court of appeal's application of a less stringent legal duty to the defendants;2 (3) the court of appeal's reversal of the trial court's finding of factual causation; and (4) the court of appeal's finding of no legal causation. We granted the plaintiffs' writ application primarily to address the issue of causation in this case and to ensure that the court of appeal performed its review of the case under the proper standard. After a thorough examination of the record, we find that the court of appeal correctly applied the manifest error standard of review to find that the plaintiffs failed to establish by a preponderance of the evidence the first step in causation, that the defendants' conduct was a cause-in-fact of the plaintiffs' injuries. FACTS At 1:52 a.m. on April 6, 1994, a static shield wire, suspended above three transmission conductors at the Exxon refinery in Baton Rouge, broke as a result of a

The plaintiffs argue that the court of appeal erred by finding that the trial court imposed the wrong standard of care on the defendants in this case and by then proceeding to apply a lesser duty. The plaintiffs, while acknowledging that the court of appeal still found that the defendants breached even the less onerous duty, claim that the court of appeal's "duty mistake" led the court to believe erroneously that the case was suitable for a de novo review. We first note that we do not reach the question of what legal standard of care should have been applied in this case, because, as discussed in the body of the opinion, we find that the first necessary question--whether the defendants' conduct was a cause-in-fact of the plaintiffs' injuries--is answered negatively, thereby ending our inquiry as to whether the defendants are liable. Nor do we reach the question of whether a de novo review would have constituted reversible error, because, contrary to the plaintiffs' assertion, the court of appeal did not discuss whether a de novo review was appropriate when the duty was erroneously defined in the first instance. Rather, the court of appeal determined that the trial court was clearly wrong under the manifest error standard.
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ten-knot wind and fell onto the transmission wires below it. Prior to its breaking, the static shield wire was improperly held together with only one of its original seven strands. The initial breakage of the shield wire caused a circuit breaker to open the line, producing an "A phase to ground" fault, or a fault in the uppermost wire. This electrical fault was cleared in seven cycles, or 7/60 of a second, which was normal. However, shortly thereafter, when Entergy personnel attempted to reclose the breaker manually in order to reenergize the line, the electrical fault was reinitiated and escalated to a full three-phase fault, or a fault in all three wires. The escalation occurred because the first three levels of GSU's automatic relay equipment failed to operate properly and isolate the fault. This resulted in a 58-cycle (58/60 of a second), three-phase electrical fault that caused a significant loss of voltage to be felt by all entities connected to the grid, which is the utility alignment that allows for a large number of customers to be serviced simultaneously. ALAC suffered a 47.5% voltage sag, which was one of the most serious experienced in the Entergy system. The voltage sag at ALAC caused the facility's major equipment to automatically shut down. While the plant never completely lost power, the voltage sag triggered protective devices on the compressor motors designed to prevent them from burning up during an extended period of low voltage operation. Those protective devices shut off all four of the facility's air compressor motors automatically. Shortly after the shutdown, the plant manager, Ray Hracek, and several additional employees, including Jeb Bujol, were summoned to the plant to assist in restarting the air compressors. By approximately 4:45 a.m., two of the four compressors were up and working.3 However, an operating problem developed in an oxygen pipeline, pressure

The No. 3 plant was not yet up by this time due to the failure of a synchronizer pack to function properly. No one has alleged that the problem with the synchronizer pack had anything to do with the power disturbance.
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regulating, automatic control valve located in the ALAC "letdown station." The valve regulated the differential pressure between a 700 PSIG pipeline, supplying gaseous oxygen to Exxon, and a 400 PSIG pipeline, supplying oxygen to other plants. The problem was discovered because the pressure to Exxon in the 700 PSIG pipeline was low. When Mr. Tony Mabile, the plant's assistant manager, passed by the letdown station, he saw the automatic valve was wide open, when it should have been closed. Upon learning of the problem with the valve, the three plaintiffs proceeded to the letdown station to close a manual block valve located near the automatic valve. As they were attempting to discover the source of the problem with the automatic valve, a large flash fire occurred at the letdown station. Mr. Bujol testified that immediately preceding the explosion, he had told Mr. Hracek that he thought the valve had closed. Then he saw the valve begin to "stroke up" and open again before "it just dropped, slammed, and exploded." The force of the explosion threw Mr. Perkins and Mr. Bujol against the surrounding wall. A second explosion followed. Mr. Hracek died on April 11, 1994, as a result of his injuries. Mr. Bujol and Mr. Perkins suffered extensive burns, permanent scars, and permanent disabilities. LAW AND ANALYSIS First, the plaintiffs argue that the court of appeal denied them their constitutional right to reargument in front of a larger appellate panel. Due to the complexity of the issues, the voluminous record, and the amount of the award, this case was originally heard by a five-judge appellate panel, with the hope that potential delays inherent in having the matter initially heard by a three-judge panel could be avoided. The plaintiffs argue that, because two judges on the five-judge panel dissented, they were constitutionally entitled to reargue their case in front of a larger panel of the court of appeal, pursuant to La. Const. art. V,

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Louisiana Law