GORDON CORMIER v. ENTERGY LOUISIANA LLC (2025)

APPEAL ON REMAND

This case returns to us on remand from the supreme court. In its appeal to this court, Entergy Louisiana, LLC, appealed a judgment of the trial court finding it liable for damages sustained by Gordon Cormier, who fell into a hole in the right of way adjacent to East Tank Farm Road in Calcasieu Parish on April 19, 2016. In Cormier v. Entergy Louisiana, LLC, 24-341 (La.App. 3 Cir. 2/5/25), 407 So.3d 17, this court reversed the judgment of the trial court.

We based our decision on two factors. First, the uncontradicted evidence in the record showed no direct evidence and insufficient circumstantial evidence that Entergy created the hole into which Mr. Cormier fell. In so finding, we reasoned that the trial court impermissibly shifted the burden of proof to Entergy to show that it did not create the hole. Second, we found that there was no evidence that Entergy had custody or garde of the premises where Mr. Cormier fell for a year prior to the incident. Citing jurisprudence from this court, we found that Mr. Cormier additionally failed to prove that the hole was created within a year of Mr. Cormier's accident, thus Entergy, as a public utility, could not be found responsible for the incident.

The supreme court granted Mr. Cormier's writ, reversed our decision, and remanded the case to this court, stating:

The Third Circuit overruled the trial court because it found “a public utility's duty to repair a hole it creates in a right of way is limited in time” and that Cormier had “failed to produce any evidence that the hole was created within a year of Mr. Cormier's fall.” Cormier v. Entergy La., LLC, 2024-341 (La. App. 3 Cir. 2/5/25), 407 So. 3d 17, 23 (citing Hartford Accident & Indemnity Co, Inc. v. South Central Bell Telephone Co., 497 So. 2d 1034 (La. App. 3 Cir. 1986)).1 There is no basis in law for the appellate court's view that a plaintiff must additionally prove the defendant caused the defect within a limited time prior to the accident. There is a prescriptive period running from a plaintiff's injury, not a peremptive period running from a defendant's negligence. This legal error interdicted the appellate court's manifest error review of the trial court's decision.

We express no opinion concerning whether this record establishes that the plaintiff met his burden to prove the defendant's negligence under La. C.C. art. 2315. This matter is remanded to the Court of Appeal, Third Circuit, for review of the trial court's decision in accordance with the views expressed herein.

1 Hartford involved pre-1996 law on strict liability. Those cases are inapplicable to the analysis under the current law. See Campbell v. Orient-Express Hotels Louisiana, Inc., 24-00840 (La. 3/21/25), 403 So.3d 573, 580. The plaintiff is required to prove the five elements outlined in the duty/risk analysis. Id. at 580-81. It was legal error to impose an additional element of proof.

Cormier v. Entergy Louisiana, LLC, 25-261, p. 1 (La. 9/16/25), 418 So.3d 890, 890.

FACTS

On April 19, 2016, Mr. Cormier was assisting with a rice-farming operation. He was directing the driver of an eighteen-wheeler as the vehicle backed into a driveway off East Tank Farm Road. As he walked backward next to the driveway, he fell into a hole. Mr. Cormier had to be lifted out of the hole and suffered injuries as a result of the fall. Mr. Cormier did not see the hole, as it was in an area where the grass was high. At the surface, the hole measured between twelve and sixteen inches and it was approximately four feet deep.

Mr. Cormier filed a timely Petition for Damages against Entergy Louisiana, LLC (“Entergy”). Mr. Cormier alleged that an unknown employee of Entergy dug the hole Mr. Cormier fell into and then failed to fill the hole when it was not used to install a pole. He sought damages for the injuries he suffered. Entergy answered, denying the allegations of the petition and asserted its right to a trial by jury.

Entergy filed a Motion for Summary Judgment arguing that it did not have a duty to the plaintiff as a matter of law. Entergy claimed that it did not have custody or garde of the premises at the site of the incident, as that property was owned and maintained by the Calcasieu Parish Police Jury (CPPJ). Thus, it was not liable under the provisions of La.Civ.Code art. 2317.

Mr. Cormier then filed a First Supplemental and Amending Petition for Damages adding the Calcasieu Parish Police Jury as a defendant. The supplemental petition alleged that the CPPJ had custody of the site, and there was a leak in the seam of the culvert below the hole which caused the hole to erode. The CPPJ denied the allegations of the petition in its answer and asserted certain affirmative defenses. It also requested a jury trial.

Mr. Cormier stipulated the value of his claim did not exceed $50,000, obviating the demand for a jury trial. See La.Code Civ.P. art. 1732(1).¹

The CPPJ filed a Motion for Summary Judgment, arguing that Mr. Cormier could not meet the essential elements of his claim. The trial court heard arguments on the motions for summary judgment filed by Entergy and the CPPJ on May 12, 2023. The trial court denied both motions for summary judgment on that date and entered signed judgments in conformity with its oral ruling on June 9, 2023.

Before trial, Entergy filed a Motion to Exclude the Testimony of Plaintiff's Expert, Matthew James Crador, alleging that he lacked the requisite knowledge, skill, experience, training, or education to give opinions about electric utility design and engineering or electric utility standards, practices or procedures. Mr. Cormier opposed the motion. After a hearing on August 28, 2023, the trial court ordered “that Matthew James Crador is not qualified as and shall not be permitted to testify as an expert regarding the installation and design of electrical distribution systems.” The trial court did state that it would allow Mr. Crador to testify “about Entergy's policies and procedures in place during Mr. Crador's employment with Entergy (2014-2017) regarding the placement and installation of utility poles.” At trial, Entergy renewed its objection to Mr. Crador's testimony as an expert, and the trial court reiterated its ruling.

After a three-day trial, the trial court found that the hole into which Mr. Cormier fell was created by an auger. The trial court further found that Entergy created the hole. The trial court assessed no fault to the CPPJ. The trial court found Mr. Cormier was entitled to medical damages of $12,883.98 and general damages in excess of the jurisdictional limit of $50,000. The trial court's judgment awarded Mr. Cormier $50,000 total.

Entergy now appeals the judgment of the trial court.

ASSIGNMENTS OF ERROR

Entergy assigns four errors in its brief to this court:

1. The trial court erred in denying Entergy Louisiana, LLC's Motion for Summary Judgment based upon lack of custody and garde of the premises as a matter of law.

2. The trial court erred in law finding Entergy Louisiana, LLC maintained garde over the premises for years after it allegedly performed work.

3. The trial court erred in finding that Entergy Louisiana, LLC created the hole in question.

4. The trial court erred in allowing Matthew Crador to testify as an expert regarding the design and installation of electric distribution lines and poles.

DISCUSSION

We first address the third assignment of error raised by Entergy. Entergy argues that Mr. Cormier presented no evidence that Entergy created the hole into which he fell. They argue that the utility pole nearest to the hole was placed in 1996, as evidenced by the markings on the pole. They further point to uncontradicted testimony in the record that the only reason Entergy ever augers a hole is to place a new pole, and no new poles had been placed in that location since 1996, so Entergy had no reason to auger a hole so close to a pole already in use. Entergy also references uncontradicted testimony in the record that the hole in question was approximately twelve to eighteen inches out of line with the remaining poles on the line. The uncontradicted testimony was that Entergy would not place a pole that far out of line with the remaining poles, as it would cause strain on the line and cause poles to lean. Further, Entergy claims that the hole measured at most fourteen inches at the top, as evidenced by the photographs entered into evidence. The evidence at trial was that the auger used by Entergy at the time the pole was installed in 1996 was sixteen inches in diameter, and it would create an eighteen-inch hole. Since the pole was installed, Entergy has transitioned to using eighteen-inch augers, which would create a twenty-inch hole. Thus, a fourteen-inch hole could not have been created by an Entergy auger. Finally, the testimony at trial indicated that holes in the area increase in size over time, they do not decrease.

We review findings of fact of the trial court under the manifest error standard of review. Stobart v. State, through the Dep't of Trans. & Dev., 617 So.2d 880 (La.1993). “[A] reviewing court must do more than simply review the record for some evidence which supports or controverts the trial court's finding. The reviewing court must review the record in its entirety to determine whether the trial court's finding was clearly wrong or manifestly erroneous.” Id. at 882 (citing Mart v. Hill, 505 So.2d 1120 (La. 1987).

After a review of the entire record, including testimonial and documentary evidence presented at trial, we note that there is no direct evidence that Entergy created the hole into which Mr. Cormier fell. Mr. Cormier presented a circumstantial case. He argued that despite Entergy's lack of records about the work performed on the pole specifically and in the area generally, it was clear that Entergy did work in the right of way near the pole. Mr. Cormier argued that many poles were damaged in hurricanes in the years between when the pole was installed in 1996 and the accident in 2016, so either Entergy or contractors working for Entergy could have created the hole in the ground.

In its reasons for ruling, the trial court stated, “Entergy has offered no reasonable hypothesis as to the existence of the hole into which Cormier fell.” In fact, Entergy offered at least two hypotheses: that the hole was a sink hole caused by the failure of the seam between the concrete culvert and the metal culvert, or that the hole was dug by an unknown party while using a smaller auger. The trial court here impermissibly shifted the burden of proof to Entergy. It was up to Mr. Cormier to prove that Entergy created the hole. After reviewing the record in its entirety, we find that he failed to meet that burden. The trial court committed manifest error in finding Entergy liable.

In Campbell, the supreme court, set forth five elements that a plaintiff must prove to determine if liability exists:

(1) the defendant had a duty to conform his conduct to a specific standard (the duty element); (2) the defendant's conduct failed to conform to the appropriate standard (the breach element); (3) the defendant's substandard conduct was a cause-in-fact of the plaintiff's injuries (the cause-in-fact element); (4) the defendant's substandard conduct was a legal cause of the plaintiff's injuries (the scope of duty element); and (5) proof of actual damages (the damages element).

Id. at 580-81 (quoting Malta v. Herbert S. Hiller Corp., 21-00209, p. 11 (La. 10/10/21), 333 So.3d 384, 395.)

As we noted in our previous opinion, the trial court found that the owner of the property, the Calcasieu Parish Police Jury, who undisputably did have custody and control of the premises, did not have a duty to find the hole and correct it. That finding has not been appealed. The evidence presented at trial does not support the trial court's finding that Entergy had custody or control of the premises. Therefore, while Entergy would owe a duty to Mr. Cormier if there was evidence to support the assertion that it created the hole, we find there is no such evidence in the record. Thus, the scope of the duty owed to Mr. Cormier does not extend to this case, where there is no evidence that Entergy's activities caused the hole in question or contributed to the formation of the hole. Further, there is no evidence that Entergy knew or should have known that the hole existed because there is a lack of evidence that Entergy had worked in the area and failed to notice the existence of the hole.

CONCLUSION

The judgment of the trial court is reversed. Mr. Cormier failed to prove that Entergy is legally responsible for the accident which caused his injuries. Costs of this appeal are assessed to Mr. Cormier.

REVERSED AND RENDERED.

FOOTNOTES

1.   Article 1732 was amended by 2020 La. Act No. 37, § 2, to lower the threshold for a jury trial to $10,000.

ELIZABETH A. PICKETT CHIEF JUDGE