A Louisiana state appeals court has affirmed a lower court ruling in favor of Bordon Dairy Company in a liability case.
In a December 6 ruling, the Louisiana First Circuit Court of Appeal agreed East Baton Rouge District Court Judge Beau Higginbotham was correct in ruling for Borden Dairy, Entergy Louisiana and others.
Jared Arthur Cunningham had sued the defendants in 2019, later changing Borden’s liability insurer to Ace American Insurance Company and later adding Liberty Mutual Underwriters as an additional defendant and dismissing DFOA without prejudice.
Cunningham was seriously injured by electrical shock on July 2, 2018, while on the roof of an abandoned building in Baton Rouge. The building was part of the former site of a Borden processing plant. Defendants did not dispute the building was in poor condition, including a partially collapsed roof.
Several electrical transformers owned and maintained by Entergy were located on the roof of the building and were enclosed in a six-foot chain link fence with three strands of barbed wire. There was a sign on the fence stating, “DANGER HIGH VOLTAGE,” and the gate to the enclosure normally was locked. Sometime in 2017, Entergy said it no long would service the transformers because of safety concerns for its workers.
Cunningham said he and friend Matthew Todd Kelly went to the property to inquire about an online posting for various jobs and entered the property through a knocked down gate. Kelly testified that he and Cunningham went to the roof to “get a better view of the property’s layout to aid them in finding someone to talk to about a job.”
Kelly said he heard “this really loud like thunderous lightening [sic] crack,” and then saw Cunningham falling down face first. He says he grabbed Cunningham’s ankle and pulled him to the stairs, but Cunningham went into seizures and rolled down the stairs. Kelly called 911 and led responders to Cunningham, who then was taken to a local hospital for treatment.
The defendants filed a motion for summary judgment on the issue of liability, saying they were entitled to immunity since Cunningham was trespassing at the time and could not prove all of the essential elements of his claim.
Borden then filed a second motion for summary judgment based on an order issued in federal bankruptcy proceedings. Cunningham filed a cross-motion for summary judgment and also filed an exception of lack of subject matter jurisdiction regarding Borden’s bankruptcy motion.
The lower court signed a judgment on September 25 granting both the motion for summary judgment filed by the defendants on liability and the motion for summary judgment regarding bankruptcy filed by Borden, dismissing all of Cunningham’s claims against defendants with prejudice. Cunningham appealed that ruling.
“A negligence claim typically focuses on whether the defendant’s conduct in allowing an unreasonably dangerous condition to exist on his premises is negligent, while a premise liability claim focuses on whether the thing itself is defective i.e. unreasonably dangerous,” the December 6 appeals court opinion states. “Defendants pointed out that plaintiff failed to identify any specific unreasonably dangerous condition or defect causing his injury, but instead broadly alleged the condition of the Borden property posed an unreasonable risk of harm.”
The ruling also says the defendants note Cunningham was unable to establish the cause-in-fact element because he was unable to recall how the accident occurred. The defendants also noted that Kelly didn’t see how the accident occurred. The defendants also used testimony from a longtime Entergy line supervisor who said he never had seen a primary conductor arc eight to 12 feet, meaning Cunningham had to have been inside the gate in the fenced area to be “electrocuted.”
“We find defendants successfully pointed out an absence of factual support for the cause-in-fact element of plaintiff’s claims,” the ruling states. “At that point, the burden shifted to plaintiff to produce factual support sufficient to satisfy his evidentiary burden of establishing cause-in-fact at trial.”
In his filing, Cunningham alleged his injuries were caused by an arc flash from the rooftop transformers. His attorneys also presented no expert testimony or other evidence to support his “speculative allegation.”
“Plaintiff herein presented no evidence to establish the cause-in-fact of his injuries beyond his speculative allegation that his injuries were caused by an arc flash,” the ruling states. “There is no genuine issue of material fact regarding this issue.”
Judges Theriot, Chutz and Hester heard the appeal, and Chutz authored the ruling.
Louisiana First Circuit Court of Appeal case number 2024-CA-0104