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McFann v. Southwestern Power Electric Co.12/14/2005
Otis McFann due to its negligence in handling the power lines.
Appellant contends that it is entitled to a de novo review because the court couched the decision as a credibility determination. Counsel requests that this court conduct a de novo review and base its decision on the medical record.
In reviewing the record of trial, an appellate court is not in a position to ascertain the tone in which a witness responds to questions, nor his or her demeanor. These factors and others play a critical role in a fact finder's evaluation of a witnesses' credibility. For this reason, great deference is afforded the trier of fact in determinations of credibility, and accordingly, the "manifest error" or "clearly erroneous" standard was established to preclude any de novo review of the factual findings of a trial court by a court of appeal. Mount Mariah Baptist Church, Inc. v. Pannell's Associated Electric, Inc., 36,361(La. App. 2 Cir. 12/20/02), 835 So. 2d 880, writ denied, 2003-0555 (La. 5/2/03), 842 So. 2d 1101.
Appellant argues that "but for the negligence of SWEPCO, Otis McFann would not have been injured." Counsel contends that Mr. Lindsey negligently placed the power line on the utility pole only three feet from the ground instead of 12 to 15 feet and told Carolyn McFann that the wire was dead and presented no danger to them, and it was Lindsey who told Carolyn McFann that it was her responsibility to cut the branches that had fallen near the wires. Counsel contends that even if Lindsey did not tell Ms. McFann the lines were dead, SWEPCO would be comparatively at fault because the lines were placed too low to the ground in violation of SWEPCO's own practices. Hence, even if Otis was negligent or intended to cut the line, the accident would not have occurred but for SWEPCO's negligence.
On the one hand, counsel argues SWEPCO, through its employee Lindsey, breached its duty by placing the wires on the pole too low to the ground. The problem with this view is that, even though Lindsey's act of placing the power line three feet above the ground may have violated company protocol, it was not this breach of company policy that caused the harm. The service line hanging on the pole did not cause the injury to Otis and posed no risk to Otis. In fact, because the wires were insulated, they posed no greater risk to Otis than an ordinary household electrical extension cord lying within easy reach of a person. Both Lindsey and Huelett testified that one could handle the wires without being shocked because they are insulated.
On the other hand, counsel for appellant argues that the cause of the accident, that is, the reason why Otis cut the wires instead of a branch, was because the wires were placed among or in close proximity to the branches of the fallen limb such that Otis could not see them. The problem with the latter position is that the photographs of the accident scene reveal that the wires were, in fact, not hidden from plain view and not really mingled with the tree branches. Although they were near some of the branches, it appears that one would have to make an effort to cut the wires. Otis stated that he saw the wires before he started cutting. The trial court found, based upon the pictures of the accident scene and the testimony, that Otis intentionally cut into the wires. We find no manifest error in this finding.
Although the appellant does not argue that the wires presented an "attractive nuisance," we conclude that the doctrine will not apply here even though electricity, in some circumstances, such as uninsulated power lines, can be "inherently dangerous." The attractive nuisance doctrine requires that the condition or agency causing injury m
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