Louisiana Case Law
HANKS v. ENTERGY CORP., 06-C-477 (La. 2 Cir. 12-18-06) H.
H. HANKS, ET AL. v. ENTERGY CORPORATION, ET AL. No.
06-C-477. Supreme Court of Louisiana, Second Circuit.
December 18, 2006.
KNOLL, Justice.
This case concerns a lightning strike during an electrical
storm that ultimately caused the destruction of an
electrical transformer at the pole and the fire of an
adjacent residence. The case was tried by judge alone and
the determination of liability rested almost completely on
expert testimony. The primary issue is whether the district
court’s finding of breach and causation as to the
defendant, Entergy Louisiana, Inc. (“Entergy”), was
manifestly erroneous.
The plaintiffs filed the instant suit against Entergy,
alleging Entergy’s negligence in installing and maintaining
its electrical equipment servicing their lake house,
specifically the lightning arrester attached to the
transformer in this case, caused the damage to the house.
In its answer, Entergy pled the affirmative defense of
force majeure, maintaining the lightning strike was an
overwhelming act of God relieving Entergy of any liability.
The district court found Entergy breached its duty of
reasonable care and this breach was a cause in fact of harm
to the plaintiffs. The court of appeal reversed, finding
the circumstantial evidence established by a preponderance
of the evidence the damage was caused by the act of God
force of an unusual and massive lightning strike, and
rendered judgment in favor of Entergy. We granted this writ
to review the correctness of the court of appeal’s
decision. Hanks v. Entergy Corp., 06-477 (La. 6/16/06), 931
So.2d 359. For the following reasons we reverse, finding
the court of appeal erred in reversing the district court’s
determination of liability.
FACTS AND PROCEDURAL HISTORY
On the morning of April 3, 2000, lightning from a
thunderstorm occurring near Lake D’Arbonne in Union Parish,
Louisiana, destroyed the electrical transformer serving a
lake house resulting in a fire that consumed the house.
According to lightning verification data submitted into
evidence,[fn1] during the storm, at approximately 6:17:46
a.m., an intense lightning strike measuring 87.9 kiloamps
(“KA”) occurred. No one disputed the magnitude of this
recorded strike. A strike of this magnitude is in the upper
2% range of lightning strikes. This as well is not
disputed. The evidence from the lightning data network
indicated the lightning struck within 3/10 of a mile of the
lake house, owned by plaintiffs, James B. Hanks, Lewis
Hanks, William Hanks, and Tracy Hanks (the “Hanks”) and
insured by Encompass Insurance Company (formerly CNA
Insurance Company). The exact location of the strike,
however, is disputed and is one of the main issues of
disagreement among the experts. While other lightning
strikes of lesser intensity also occurred, the experts all
agree this massive strike was the probable cause of the
damage to the lake house.
Electrical service to the lake house was provided by
Entergy, which owned and maintained the transformer and
lightning arrester located on a pole 90 feet from the lake
house and attached to the Entergy distribution lines
leading to the house. A transformer reduces the higher
voltage (8 to 20 kilovolts) from the distribution line to
allow standard (120/240) volt service for the dwelling. The
higher voltage enters the transformer through the
high-voltage or H1 lead, and the reduced voltage leaves the
transformer through the low voltage lead on the tank of the
transformer and travels down the service drop into the
service location. The surge arrester, which is at the center
of this dispute, is a large vertical cylindrical porcelain
passive device, which is bolted by brackets to the side of
the transformer on the high side of the bushing[fn2] and
protects the transformer from high voltage surges by
diverting the excess voltage to the ground away from the
transformer. When voltage greater than threshold voltage is
impressed across the arrester, the apparatus acts like a
switch and directs the high voltage current to a ground
mechanism extending down the pole to a rod driven in the
ground. When the surge ends, the device switches back to the
line, isolating it from the ground.
All experts agreed the 27 kilovolt (“KV”)[fn3] distribution
class, silicon carbide lightning arrester (surge
suppressor) installed at the location was appropriate for
the dwelling and to protect the 20KV single-phase
distribution class transformer. Entergy installed lightning
arresters with all their transformers because lightning hits
nearly all transformers on an average of twice a year in
Louisiana. The arresters are also required to work for
protection against unexcepted surges of power along the
distribution system. The transformer at issue had been
placed on the utility pole to service the dwelling in 1996,
and Entergy had received neither requests for repairs nor
complaints about the device during that time.
Entergy employees who visited the location for the first
time on April 8, 2000, found significant damage to the
transformer. The bottom of the steel tank had been blown
out, and the lid was blown off. Experts on both sides
agreed such destruction of the tank by lightning was as
great as they had ever witnessed. A photograph taken during
the initial site visit showed the arrester, however,
sustained no apparent damage.[fn4] This photograph is the
only remaining evidence of the arrester preserved for
trial. Critically, while the damaged transformer was
retained, Entergy failed to physically examine or retain
the arrester.[fn5]
Encompass paid the Hanks policy proceeds in accordance with
the terms and provisions of its policy and was subrogated
to the Hanks’ claims. The cost to reconstruct the dwelling,
however, significantly exceeded the policy proceeds.
Consequently, on March 26, 2001, the Hanks and Encompass,
as subrogee, filed this action for damages against Entergy
and Howard Industries, Inc., the manufacturer of the
transformer. Howard Industries, Inc. was later dismissed
because the parties agreed no defect in the transformer or
internal failure of the transformer caused the damage in
this case. Encompass sought to recover the amounts it paid
to the Hanks pursuant to its policy. The Hanks sought to
recover the uninsured portion of their loss.
Plaintiffs alleged in their petition the fire was caused by
a lightning strike on a power line owned, operated, and
maintained by Entergy and high voltage from the strike
entered the structure igniting a fire. Plaintiffs further
alleged Entergy committed certain negligent acts or
omissions, which caused or contributed to the fire,
including: (1) failure to properly maintain and inspect the
power lines and electrical equipment servicing the lake
house; and (2) failure to properly place, maintain, and
employ surge protectors or arresters at the power pole
adjacent to the dwelling.[fn6] On June 21, 2001, Entergy
filed its answer generally denying liability and raising the
affirmative defense of force majeure.[fn7] Trial by judge
was commenced on March 4, 2004, continued on March 5, 2004,
and concluded on October 5, 2004. After trial, counsel
submitted their memoranda, and the matter was taken under
advisement.
On the morning of trial, the parties stipulated to the
following facts (1) the fire occurred on or about April 2,
2000;[fn8] (2) the electrical pole and the equipment
attached thereto providing electrical service to the lake
house was owned, operated, and maintained by Entergy; (3)
the Encompass insurance policy was in effect insuring
against fire losses on the date of the fire; (4) pursuant
to the policy, sums were paid to the Hanks by Encompass,
and Encompass was legally subrogated to the Hanks’ claims
to that extent. The parties subsequently reached an
agreement as to quantum.
Because the arrester undisputably did not protect the
transformer from the lightning, the primary question in
this litigation is why the arrester failed to protect the
transformer. The plaintiffs contend that, if the arrester
had been properly functioning or correctly connected, the
arrester would have performed the task for which it was
created, that being to protect the transformer by
redirecting extra voltage caused by the lightning strike
away from the transformer and into the ground through a
ground conductor. According to the plaintiffs, this process
did not occur, and as a result, arcing occurred at the
circuit panel box of the house, causing the fire. Because
Entergy disposed of the arrester before the parties could
examine it, the question of liability at trial turned on
expert testimony presented by both the plaintiffs and the
defendant. To understand the respective positions of the
parties, it is necessary that we set forth the expert
testimonies of each side in the factual recitation of this
case, which tends to be lengthy, but important. We will
first present plaintiffs’ expert testimony, which the
district court accepted in ruling in favor of the
plaintiffs.
In their case in chief, plaintiffs tendered Lacie Gene
Smith as an expert in electrical engineering concerning the
cause and/or origin of the fire, particularly as it relates
to the significance, if any, of lightning strikes as a
causative effect, and also as to the damage to the
electrical apparatus of Entergy and damage to the Hanks
dwelling. Essentially, Smith opined a lightning strike
caused the failure of the transformer, resulting in the
house fire. The failure of the lightning arrester to
perform properly led directly to the failure of the
transformer, which in turn led to the fire. Smith confirmed
the lightning strike was a positive cloud-to-ground strike,
which did not involve electrons, but rather positive ions
descending from the cloud to the ground in an almost direct
path. Smith explained the strike was positive because the
report did not contain a negative sign preceding the KA
reading and cloud-to-ground because it was reported, as the
reporting agency only reported cloud-to-ground strikes.
Ground-to-cloud strikes are very rare and do not cause the
type of damage in this case. Moreover, Smith explained, in
a negative strike, negative charges come down the
ionization path from the cloud with multiple return
strokes, whereas positive strikes have only one to two
strokes.
He further explained the path of the positive strike in
this case led from the highest line of the distribution
service system down through a line to the arrester, and
then through the line called the H1 (high voltage) lead
into the top of the transformer tank. The current
encountering resistence, built up voltage beyond the
transformer’s capacity. Once it exceeded the capacity, the
energy went through first the ground clips to the static
shield, punched through[fn9] the winding in the primary
into the secondary of the transformer, which connected to
the low voltage lead on the tank of the transformer and
traveled down the service drop into the home. Upon meeting
the resistence of the windings, the over voltage caused
arcing through the transformer and the explosion.
A tubular bushing device situated directly on the top of
the tank contained the H1 lead as it entered the tank. This
device was blown off the top of the tank by the explosion
and could be seen hanging from the wires connecting the
device to the arrester as depicted in the only photograph
of the arrester taken after the fire and prior to removal
of the transformer from the pole. Significantly, the
photograph showed no visible damage to the arrester.
Smith testified that, despite the intensity of the
lightning strike, no damage to the arrester or the ground
pole along the line of the ground wire occurred. Smith
opined that, with such an intense surge, one would expect
to have an internal pressure build up in the arrester that
would blow off the top and bottom of the arrester as well as
the ground connection. Also, with the magnitude of the
current, one would expect to see overheating along the
ground wire, which served as the drain wire from the
arrester to the ground. Smith identified photographs
attached to his report admitted into evidence, which
revealed a lack of overheating on the grounding conductor
on the side of the transformer pole and explained that, had
the arrester been properly connected and functional, the
large strike would have produced heating on the ground wire
and evidence thereof. He also explained a photograph of the
connecting clamp on the side of the transformer tank where a
ground line connection for the arrester was located and
testified he saw evidence of arcing at the connection,
indicating to him the connection to ground was loose. As a
result, Smith concluded the arrester either did not
function or was not properly connected. He further opined
the arrester did not properly function because of a defect
in its switch device or because its grounding conductor
line was not connected. He further opined prior functioning
of the switch device, which depleted the internal operation
of the arrester, was the most probable cause of the
arrester’s failure.
Although admittedly it was virtually impossible to
determine the point of origin of the fire, Smith testified
the only evidence of electrical activity in the remains of
the home was found on the circuit breaker, which contained
evidence of arcing in the circuit breaker panel, connected
to the meter box. He could say with a reasonable degree of
electrical engineering certainty the current entered the
circuit breaker panel through the meter base, causing the
arcing. The panel, which Smith alleged contained evidence
of arcing in the form of a hole through the panel, would
have been located on the inside wall of the house directly
opposite where the meter box was located on the outside
wall, which was the electrical service entrance to the
house. Smith also identified a photograph of the meter base
at the house, which depicted melting of aluminum service
drop conductors that indicated an overload.
Present at the destructive testing and analysis of the
damaged transformer conducted at Howard Industries for the
purpose of determining the damage to the transformer, Smith
identified photographs of the process, which revealed
damage to the various levels of the windings within the
transformer and the H1 lead, opining the surge of
electricity, which destroyed the transformer, entered
through the H1 lead. He opined the strike most likely hit
the distribution line because of the magnitude of damage to
the transformer and because cloud-to-ground strikes will
hit the highest object first, in this case the distribution
line. He further opined that, with the positive
cloud-to-ground strike, the electrical current took a
downward path beginning from the H1 lead into the arrester
and the transformer.
Additionally, based on Entergy’s design manual and the laws
of science, Smith opined the full 87.9KA magnitude of the
electrical current from the positive strike could not have
been impressed upon the transformer, but more likely, 10,
20, or even 60% of the current reached the transformer,
which the 65KA capacity arrester could have handled had it
been functioning, resulting in no damage to the transformer.
As authority, Smith testified to the design of Entergy’s
electrical distribution lines, which act as infinite busing
of energy on the line. If an electrical strike hits a
distribution line, the line is designed so the current will
spread or dissipate in two directions to allow the excess
energy to bleed or drain off the line at other arresters
along the line. Although the strike would have hit towards
the end of the line in this case, the distribution line in
its busing capacity should have directed the current in two
directions therefore most probably only 60% of the 87.9KA
current could have reached the transformer. Moreover, Smith
opined the arrester had a minimum 65KA capacity based on an
Institute of Electrical and Electronic Engineers’ report and
further there was no distinction between the standard
capacity of a distribution class and station class arrester
to which the report referred. In his opinion, no other
logical explanation existed to describe the cause of
destruction of the house by fire other than defective
equipment or improperly maintained equipment.
Turning now to Entergy, it presented two expert witnesses
also in the field of electrical engineering. Entergy
tendered John K. Owens, Ph.D, as an expert in the field of
electrical engineering as it relates to the damage to the
Entergy service equipment and the manner, if any, in which
the damage was related to the fire, with specialized
expertise in the field of lightning protection and fire
origin and cause investigation. Owens also testified the
lightning was a positive cloud-to-ground strike, but with a
negative electron flow from the ground to the cloud.
Negative charged electrons flowed from the earth beneath the
house through the electrical service drop, which comprises
three wires leading to the transformer. He opined the
electron flow was from the ground up from various locations
in the house, including the water, gas, and electric lines.
As the negative electrons flowed, voltage generated from
these ground neutral poles at the house produced arcing at
various locations in the house. Additionally, negative
charged electrons flowed from the earth around the pole
where the transformer was mounted. The physical damage to
the transformer, according to Owens’ observation, proceeded
up from the bottom of the tank to the high voltage lead,
instead of in a downward path from the distribution line
through the high voltage lead as testified to by Smith.
Owens testified the lightning struck at the top of the pole
and the arrester received the full current of the strike.
He also did not agree a loose ground clamp on the
transformer tank caused the fire because a lightning strike
of this magnitude would have arced across any gap in the
connection seeking ground at the pole. Any evidence of
arcing around the grounding clamp was irrelevant, and the
lack of burned wiring on the pole was explained by the
short duration of the strike event and the use of copper
wiring, which would not have had enough time to burn. Thus,
he concluded there was no evidence the transformer or
arrester was not functional and testified the lightning
strike overwhelmed both devices.
On cross-examination, Owens admitted the strike could have
been within 1/4 of a mile of the pole and that, if the
strike was far enough away, there would have been some
dissipation. Due to the damage to the transformer, however,
Owens concluded the strike was close to the transformer,
“an almost direct strike to the top of that transformer.”
Entergy also tendered Frederick M. Brooks as an expert in
the field of electrical engineering, electric utility
operating practices, and fire cause and origin
investigation. Brooks concluded the probable cause of the
fire was a large scale lightning strike hitting at or near
the transformer pole, which created an over-voltage
condition in the electrical wiring at the house. He also
opined there was no evidence suggesting the lightning
arrester did not work as he did not see any evidence of
deficiency in Entergy’s equipment. Brooks characterized the
strike as a positive lightning strike with electron flow
from ground to cloud.
Brooks testified the different classes of arresters, such
as the distribution, intermediate, and station classes,
have varying capacities to conduct levels of surge energy
caused by lightning or otherwise. The distribution-class
arrester employed in this case was the standard of the
industry to protect the distribution equipment at the pole.
When a surge event occurs and the switch in the arrester is
triggered for the grounding of the current, the capacity of
the arrester to drain off the excess current can be reached
and exceeded. If this happens, the current spills over into
the transformer and causes damage. The capacity range for
handling a lightning event is dependent not only upon the
magnitude of the strike current, but also its duration.
With such an event, the arrester has not failed in a strict
sense, but it is not able to conduct the energy to ground
fast enough.
He also explained why no explosive damages occurred at the
arrester and it was not unusual to have an undamaged
arrester despite damage to a transformer. Damage to the
arrester would result because of heat, and the heat is
generated by the magnitude of the current over time. He
described the function of the isolator or end cap device at
the bottom of the arrester, which operates like a fuse and
disengages by a heat build-up on the line leading to
ground. After a surge event, follow-through current from
the distribution system can continue. If the grounding
function of the arrester persists for a period of time,
heat then builds and the end cap or isolator blows. If the
arrester encounters a higher-than-normal magnitude of
current but of short duration with no follow-through
current, then the isolator would not disengage to ground.
In the photograph of the arrester, the device was not shown
to have been triggered, and Brooks cited the blown H1 lead
connection at the top of the transformer tank as the break
in the circuit, which prevented follow-through current from
flowing through the arrester for any lengthy period of
time.
He concluded the magnitude of the strike simply overwhelmed
and damaged the equipment because the 87.9KA strike was
outside the 65KA range of the arrester. With that type of
surge, the arrester was not able to conduct enough energy
fast enough to limit the voltage rise. Because of the
extent of damage to the transformer, he believed lightning
hit close to the pole. He added that, under plaintiffs’
theory, the arrester did not work and the lightning hit down
the line, with dispersion, the transformer would have
received only 10 or 20% of the current, which, in his
opinion, would not have been enough to blow the
transformer. He referred to the Entergy standards in
concluding that, if lightning hits directly on a facility,
the facility might be subject to the entirety of the
lightning energy, rather than the normal distribution,
which occurs if the strike is not direct. Finally, in
answer to questions by the district court over the
cloud-to-ground versus ground-to-cloud path of the strike
controversy, Brooks explained the ground-to-cloud flow made
a difference as to a fire-cause scenario, but not as to the
arrester function, because the arrester does not care from
which direction the electrons are flowing. When the voltage
exceeds 27KV, the arrester is going to close the switch and
conduct the excess to ground, regardless of which direction
the electrons are flowing.
After considering this matter and the evidence presented,
the district court entered judgment in favor of Encompass,
awarding the insurer $179,643.51, together with interest
thereon at the legal rate from the date of judicial demand
until paid. The court further awarded the Hanks $145,353.35
together with legal interest thereon at the legal rate from
date of judicial demand until paid. Assigning written
reasons, the court addressed whether the plaintiffs proved
by a preponderance of the evidence defendant, Entergy, was
liable under a duty/risk analysis.
Agreeing the primary issue in the case was why the arrester
did not protect the transformer, the district court stated
three possibilities that could explain why the arrester
failed: (1) the arrester was defective and malfunctioned,
or (2) the arrester was not properly connected, or (3) the
lightning was of such a force and magnitude the capacity of
the arrester was overwhelmed, rendering the arrester
incapable of performing its intended function. The court
explained that, if the arrester malfunctioned or was
improperly connected, Entergy breached its duty of care and
that breach was a cause in fact of the fire at the house.
The court commented upon the unfortunate fact the arrester
was disposed of and not available for inspection or
analysis and reasoned that, if the arrester had been
preserved, the major factual issue of this case probably
would have been resolved, one way or the other.
After carefully reviewing the evidence, the court found the
testimony of plaintiffs’ expert, Smith, more credible than
the testimony of defendant’s experts, Owens and Brooks, and
that common sense supported Smith’s opinion an undamaged
arrester next to a totally destroyed transformer indicated
the arrester was defective in operation or attachment.
Additionally, he reasoned, if the arrester had worked and
channeled some of the energy into the ground conductor, it
was “inconceivable to the Court that there would be no
scorching or burning of the pole or the ground conductor,
particularly in light of Entergy’s argument that this was a
lightning strike of overwhelming magnitude.” Consequently,
the court concluded plaintiffs demonstrated the arrester
either malfunctioned or was improperly attached, which was a
cause in fact of the fire, and established Entergy breached
its duty of reasonable care and this breach was a cause in
fact of harm to the plaintiffs.
As to Entergy’s affirmative defense of force majeure,[fn10]
the court concluded Entergy failed to establish the
lightning strike would have overwhelmed an arrester that
was functional and properly attached. Although the court
articulated the clear and convincing evidentiary standard
was required by Brannon v. Shelter Mut. Ins. Co., 507 So.2d
194, 197 (La. 1987), the district court’s reasoning
indicates the court applied a preponderance of the evidence
burden of proof in its examination of Entergy’s affirmative
defense. First, the court did not accept “the testimony of
Brooks and Owens that this was a direct strike to the
electrical apparatus servicing the lake house,” because
“[t]he exact location of the strike [was] pure conjecture”
and “the lack of damage to anything other than the
transformer [made] it inconsistent with a direct hit.”
Further, “[a]ll one can know is that the strike was within
3/10 of a mile.” Second, the court found it “improbable that
all of the energy from the strike was impressed upon the
arrester.” In support, the court stated: “[i]f only 25% of
the energy had been dissipated, the current would have been
reduced to within the capacity for the arrester.” Finally,
the court explained he found “the testimony of plaintiffs’
expert [was] as reasonable and plausible as that of
Entergy’s experts.” This reasoning is indicative of applying
a preponderance of the evidence burden of proof to the
defendant’s affirmative defense. Accordingly, he concluded
Entergy failed to establish its affirmative defense of
force majeure.
On appeal, Entergy argued plaintiffs failed to establish
the cause of the fire loss was separate from the unusual
act of God event, which in this case was a lightning strike
of extreme magnitude. Noting the doctrine of force majeure
is sometimes sufficient to excuse a defendant’s neglect of
a duty and relieve him of liability to a plaintiff where
there is a superior or irresistible force, the court of
appeal explained the force must be a providential occurrence
or extraordinary manifestation of the forces of nature,
which could not have been foreseen and the effect thereof
avoided by the exercise of reasonable prudence, diligence
and care. Caldwell v. Let The Good Times Roll Festival,
30,800 (La.App. 2 Cir. 8/25/98), 717 So.2d 1263, writ
denied, 98-2489 (La. 11/25/98), 729 So.2d 566. The court of
appeal held “this was a positive strike which, unlike a
negative lightning strike, was probably a single stroke
connecting to ground with high current, approaching in
magnitude the greatest lightning strikes which are
experienced in thunderstorms.”
From an initial overview of the dispute in this case, the
court noted three undisputed points, which could not be
overlooked. First, an overwhelming act of God strike did
occur in this case and, at least, a portion of the current
from the strike caused the loss of the house. Second, while
the exact location of the strike determined the magnitude
of the electrical force visited upon the arrester, there was
no direct evidence demonstrating where the strike
occurred-no charring of the utility pole or injury to the
distribution line. Third, because of the magnitude of the
strike, the evidence indicated a direct strike near the
utility pole would not protect the transformer or prevent
the additional surge of current through the house,
regardless of whether the arrester was in proper working
condition. Thus, the court of appeal concluded the
plaintiffs had a “formidable task of proving causation
distinct from this force of nature.”
Conducting a duty/risk analysis, the court of appeal noted
two levels of duty of care are owed by power companies:
When the risk involves electrocution, the duty is of utmost
care; in cases which involve accidents other than
electrocution, that occur on the property of the customer
and are allegedly caused by some action or inaction on the
part of the electric utility company, the utility company’s
duty is to use reasonable care in the installation,
operation, and maintenance of their electric lines. Pillow
v. Entergy Corp., 38,384 (La.App. 2 Cir. 9/18/02), 828
So.2d 83, writ denied, 02-2575 (La. 12/13/02), 831 So.2d
987. In addition, the court recognized the determination of
whether the defendant’s conduct was a substantial factor in
bringing about the harm and, thus, a cause-in-fact of the
injuries is a factual question to be determined by the
factfinder. Seeking the cause-in-fact of the fire, the
court of appeal turned to the expert testimony and observed
what it called a “lack of a detailed explanation by either
side explaining and comparing the capacity of the equipment
and the differing amounts of the voltage that may have been
generated by the 87.9-KA strike, depending on the different
scenarios suggested for the strike’s location.” Noting the
plaintiffs and the defense disputed the capacity of the
arrester and the exact location of the strike, the court of
appeal interpreted the evidence to support a conclusion the
strike in question was of such magnitude it could not be
prevented from causing damage by the exercise of reasonable
care when the location of the strike caused most of its
force to be visited upon the electrical equipment in
question. The court of appeal added the plaintiffs’ case,
relying on circumstantial evidence for the strike’s
location, did not exclude the more probable hypothesis the
location of the strike was within the area near the pole
where the act of God force overwhelmed the ability of the
equipment to ground the massive charge at the utility pole
and prevent the fire.
In reaching its conclusion, the court of appeal found fault
with Smith’s testimony regarding his reliance on Entergy’s
design manual and his failure to explain (1) where the
additional grounding relief might have occurred and (2) why
it was not equally possible 100% of the strike, rather than
merely 20%, would flow through the arrester. The court also
reasoned Smith’s location of the strike presented a
scenario that remained very close to those locations where
a catastrophic event was inevitable and that, in placing
the strike in a location away from the pole where the force
majeure might have been handled by the arrester, the Smith
scenario also had to overcome the inference the arrester,
which had previously operated for four years, could be
expected to function. Further, the court found the evidence
did not support the conclusion a catastrophic lightning
event near the pole would have caused physical damage to
the arrester, which should have been visible after the
strike. While the transformer is composed of massive
windings, which carry the current and present resistence,
the arrester did not include such windings, and thus, the
current did not meet with the same resistence in the two
devices. The court of appeal found “a comparison of the
massive explosion of the transformer with the lack of
explosion in the arrester was not shown by the evidence to
be appropriate.” Most significant, the configuration of the
electrical path demonstrated the same powerful current that
destroyed the transformer flowed through the arrester
without apparent damage. With these facts and Brooks’ more
detailed explanation of why the arrester could survive a
catastrophic strike without visible physical damage, the
court found the plaintiffs offered inconclusive proof to
isolate a cause of the loss that was more probable than the
act of God event, which unquestionably occurred near the
equipment.
Finally, regarding the defense view of the event, the court
noted Entergy’s experts held to the opinion there was some
grounding of the lightning current at the utility pole.
Yet, even with the lack of a ground function by the
arrester as opined by Smith, Smith offered no explanation
why the surge experienced by the transformer, even at only
20% of the lightning’s strike, was not grounded entirely at
the pole because of the grounding of the transformer
itself. Thus, with the evidence showing the current, which
arced through the windings in the transformer, could have
been conducted through the ground connection on the
transformer’s steel tank, the court found the undisputed
ground source was apparently overwhelmed by the magnitude
of the strike, solidifying its conclusion the damage was
caused by an act of God.
Accordingly, the court of appeal concluded the district
court’s conclusion was erroneous and reversed the district
court’s judgment. Hanks v. Entergy Corp., 40,486, p. 24
(La.App. 2 Cir. 2/1/06), 921 So.2d 1130, 1143. From this
opinion, the plaintiffs sought writs from this court.
LAW AND ANALYSIS
In their application, the plaintiffs argue the court of
appeal improperly concluded its own evaluations and
inferences were more reasonable than the district court’s
evaluations, when the district court’s findings clearly
were not manifestly erroneous or clearly wrong.[fn11] We
agree.
Manifest error
In an action to recover damages for injuries allegedly
caused by another’s negligence, the plaintiff has the
burden of proving negligence on the part of the defendant
by a preponderance of the evidence. Benjamin ex rel.
Benjamin v. Housing Authority of New Orleans, 04-1058, p. 5
(La. 12/1/04), 893 So.2d 1, 4; Cangelosi v. Our Lady of the
Lake Regional Medical Center, 564 So.2d 654, 664 (La.
1989). Proof is sufficient to constitute a preponderance
when the entirety of the evidence, both direct and
circumstantial, shows the fact sought to be proved is more
probable than not. Benjamin, 04-1058 at p. 5, 893 So.2d at
4-5; Cangelosi, 564 So.2d at 664. Thus, the plaintiff in
this type of action must produce evidence from which the
factfinder can reasonably conclude his injuries, more
probably than not, were caused by the negligence of the
particular defendant. Cangelosi, 564 So.2d at 664. The
plaintiff, however, does not have to conclusively exclude
all other possible explanations for his injuries, because
the standard is not proof beyond a reasonable doubt.
Cangelosi, 564 So.2d at 664; Boudreaux v. American
Insurance Co., 262 La. 721, 736-38, 264 So.2d 621, 626-27
(1972). Placing the burden of proof on the plaintiff
requires him ultimately to persuade the factfinder
concerning the defendant’s negligence, and if the
factfinder is undecided after all the evidence has been
presented, the plaintiff loses because of the failure of
his evidence. Cangelosi, 564 So.2d at 664; Boudreaux, 262
La. at 736-38, 264 So.2d at 626-27.
As previously noted, the proof may be by direct or
circumstantial evidence. Benjamin, 04-1058 at p. 5, 893
So.2d at 4; Cangelosi, 564 So.2d at 664. A fact established
by direct evidence is one which has been testified to by
witnesses as having come under the cognizance of their
senses. Cangelosi, 564 So.2d at 664. Circumstantial
evidence, on the other hand, is evidence of one fact, or of
a set of facts, from which the existence of the fact to be
determined may reasonably be inferred. Cangelosi, 564 So.2d
at 664-65. Use of circumstantial evidence and the
deductions and inferences arising therefrom is a common
process for establishing liability in negligence cases.
Id., at 665. However, the inferences drawn from the
circumstantial evidence must cover all the necessary
elements of negligence, and the plaintiff must still
sustain the burden of proving his injuries were more likely
than not the result of the defendant’s negligence. Id., at
665. If, as in this case, circumstantial evidence is relied
upon, that evidence, taken as a whole, must exclude every
other reasonable hypothesis with a fair amount of
certainty. Benjamin, 04-1058 at p. 5, 893 So.2d at 5. This
does not mean, however, that it must negate all other
possible causes. Id.
In this case, plaintiffs have alleged Entergy was negligent
in maintaining and connecting the lightning arrester and
its negligence caused the damage to the Hanks residence.
Under Louisiana jurisprudence, most negligence cases are
resolved by employing a duty/risk analysis, which entails
five separate elements: (1) whether the defendant had a
duty to conform his conduct to a specific standard (the duty
element); (2) whether the defendant’s conduct failed to
conform to the appropriate standard (the breach element);
(3) whether the defendant’s substandard conduct was a
cause-in-fact of the plaintiff’s injures (the cause-in-fact
element); (4) whether the defendant’s substandard conduct
was a legal cause of the plaintiff’s injuries (the scope of
liability or scope of protection element); and (5) whether
the plaintiff was damaged (the damages element).[fn12]
Lemann v. Essen Lane Daiquiries, Inc., 05-1095, p. 7 (La.
3/10/06), 923 So.2d 627, 633; Bonin v. Ferrellgas, Inc.,
03-3024, p. 5 (La. 7/2/04), 877 So.2d 89, 94. A negative
answer to any of the inquiries of the duty/risk analysis
results in a determination of no liability. Lemann, 05-1095
at p. 7-8, 923 So.2d at 633.
The threshold issue in any negligence action is whether the
defendant owed the plaintiff a duty, and whether a duty is
owed is a question of law. Lemann, 05-1095 at p. 8, 923
So.2d at 633; Benjamin, 04-1058 at p. 6, 893 So.2d at 5. It
is well established Louisiana courts require a high duty of
care by those dealing in the manufacture and distribution
of electricity. Northern Assurance Company v. Louisiana
Power & Light Company, 580 So.2d 351, 358 (La. 1991).
Electric transmission companies, which maintain and employ
high power lines, are required to exercise the utmost care
to reduce hazards to life as far as practicable, provided
the utility is not required to guard against situations,
which cannot reasonably be expected or contemplated. Hebert
v. Gulf States Utilities Company, 426 So.2d 111, 114 (La.
1983); Simon v. Southwest La. Elec. Membership Corp., 390
So.2d 1265, 1267 (La. 1980). However, when the utility
company is not the owner of the electrical facility, which
causes damage, but merely passes its electricity through
this facility, a lesser standard applies. Northern
Assurance Company, 580 So.2d at 358; Sibley v. Gifford Hill
and Co., Inc., 475 So.2d 315, 319 (La. 1985). In such cases
where injury or damage occur on the property of a customer
and are allegedly caused by some action or inaction on the
part of the electric utility company, the duty is to use
reasonable care in the installation, operation, and
maintenance of their electric lines. See Northern Assurance
Company, 580 So.2d at 358-59; Hughes v. Louisiana Power &
Light Co., 94 So.2d 532, 534-35 (La.App. 1st Cir. 1957). In
this case, the district court and the appellate court found
Entergy owed a duty of reasonable care in the installation,
operation, and maintenance of their electric lines.
Whether the defendant breached that duty and whether that
breach was a cause in fact of plaintiff’s injuries are
factual questions to be determined by the factfinder.
Benjamin, 04-1058 at p. 7, 893 So.2d at 6; Toston v.
Pardon, 03-1747, p. 11 (La. 4/23/04), 874 So.2d 791, 799. A
reviewing court may not set aside a district court’s finding
of fact in the absence of manifest error or unless it is
clearly wrong, and where there is conflict in the
testimony, inferences of fact should not be disturbed upon
review, even though the reviewing court may feel that its
own evaluations and inferences are as reasonable. Rosell v.
ESCO, 549 So.2d 840, 844 (La. 1989); Stobart v. State,
Though DOTD, 617 So.2d 880, 882 (La. 1993). In order to
reverse a district court’s determination of a fact, a
reviewing court must review the record in its entirety and
(1) find a reasonable factual basis does not exist for the
finding, and (2) further determine the record establishes
the factfinder is clearly wrong or manifestly erroneous.
Bonin, 03-3024 at p. 6-7, 877 So.2d at 94-95; Stobart, 617
So.2d at 882. “To perform its constitutional duty properly,
an appellate court must determine whether the trial court’s
conclusions were clearly wrong based on the evidence or
clearly without evidentiary support.” Perkins v. Entergy
Corp., 00-1372, p. 11 (La. 3/23/01), 782 So.2d 606, 613;
Benjamin, 04-1058 at p. 7, 893 So.2d at 6; Bonin, 03-3024
at p. 7, 877 So.2d at 95. Nevertheless, the issue to be
resolved by the reviewing court is not whether the
factfinder was right or wrong, but whether the factfinder’s
conclusion was a reasonable one. Stobart, 617 So.2d at 882.
If the findings are reasonable in light of the record
reviewed in its entirety, an appellate court may not
reverse even though convinced that, had it been sitting as
the trier of fact, it would have weighed the evidence
differently. Carter v. Haygood, 04-0646, p. 9 (La.
1/19/05), 892 So.2d 1261, 1267; Stobart, 617 So.2d at 882.
Where there are two permissible views of the evidence, the
factfinder’s choice between them cannot be manifestly
erroneous or clearly wrong. Bonin, 03-3024 at p. 7, 877
So.2d at 95; Rosell, 549 So.2d at 844. When findings are
based on determinations regarding the credibility of
witnesses, the manifest error-clearly wrong standard
demands great deference to the trier of fact’s findings,
for only the factfinder can be aware of the variations in
demeanor and tone of voice that bear so heavily on the
listener’s understanding and belief in what is said. Bonin,
03-3024 at p. 7, 877 So.2d at 95; Rosell, 549 So.2d at 844.
However, where documents and objective evidence so
contradict the witness’s story, or the story itself is so
internally inconsistent or implausible on its face, that a
reasonable factfinder would not credit the witness’s story,
the reviewing court may well find manifest error or clear
wrongness even in a finding purportedly based upon a
credibility determination. Rosell, 549 So.2d 844-45. But
where such factors are not present, and a factfinder’s
finding is based on its decision to credit the testimony of
one of two or more witnesses, that finding can virtually
never be manifestly erroneous or clearly wrong. Id.
Moreover, the rule that questions of credibility are for
the trier of fact applies to the evaluation of expert
testimony, unless the stated reasons of the expert are
patently unsound. Lasyone v. Kansas City Southern R.R.,
00-2628, p. 13 (La. 4/3/01), 786 So.2d 682, 693; Lirette v.
State Farm Ins. Co., 563 So.2d 850, 853 (La. 1990).
Credibility determinations, including the evaluation of and
resolution of conflicts in expert testimony, are factual
issues to be resolved by the trier of fact, which should
not be disturbed on appeal in the absence of manifest
error. Lasyone, 00-2628 at p. 13, 786 So.2d at 693.
Application of the foregoing principles to the conflicting
expert testimony and other evidence lays bare the court of
appeal’s error in its employment of the manifest
error-clearly wrong standard. After considering the record
viewed in its entirety in the present case, we conclude the
court of appeal failed to properly apply the appellate
review standard.
We do not find the district court committed manifest error
in its finding that the plaintiffs established Entergy
breached its duty of care and this breach was a cause in
fact of harm to the plaintiffs. As noted by the district
court, the evidence in this case boils down to the
conflicting testimony of the experts and their
interpretation of the photographic evidence. The district
court made a credibility call, finding the plaintiffs’
expert testimony more credible than the testimony of
Entergy’s experts. Because we find no documents or
objective evidence in the record that so contradicts the
testimony of plaintiffs’ expert or that his testimony is so
internally inconsistent or implausible on its face a
reasonable factfinder would not credit his testimony, we
cannot find manifest error or clear wrongness. Because
these factors are not present in this case and the district
court’s finding of breach and causation is based on his
decision to credit the testimony of Smith, it is virtually
impossible for us to find the court’s factual conclusions
manifestly erroneous or clearly wrong. Under these
circumstances, these evaluations and inferences are entirely
the function of the trial court in its fact-finding mission
and the appellate court cannot impinge upon this function,
even though the appellate court is convinced that had it
been sitting as the trier of fact, it would have weighed
the evidence differently. It was in this manner that the
court of appeal fell into error.
Smith opined the arrester was either non-functional or
improperly connected, basing his opinion on several
factors. First, the photograph of the arrester after the
lightning strike showed the arrester was intact and had no
visible evidence of damage, whereas the transformer was
destroyed. He opined if the arrester had been operational,
it would have been damaged considering the severe damage of
the transformer. Second, his examination of the power pole
revealed no evidence of burning or scorching along the path
of the grounding conductor, and he believed if the arrester
had worked and “bled off” excess voltage via the ground
conductor, some evidence thereof would have been
observable. Smith concluded the arrester was defective or
improperly attached and Entergy had failed to properly
maintain and inspect its distribution apparatus.
The district court agreed, reasoning common sense supported
Smith’s opinion that an undamaged arrester next to a
totally destroyed transformer indicates the arrester was
defective in operation or attachment. The court further
found it inconceivable that there would be no scorching or
burning of the pole or the ground conductor if the arrester
had worked and channeled some energy into the ground
conductor, given Entergy’s argument this was a lightning
strike of overwhelming magnitude that directly struck the
transformer or very near it.
Additionally, the district court correctly explained the
testimony of Brooks and Owens was that the magnitude and
proximity of the strike was such that it would have
overwhelmed any properly installed and functioning arrester
because the lightning strike was very powerful in that it
was in the top two percent of all strikes in magnitude,
which directly hit to the service apparatus, and all of the
current from the strike was impressed upon the arrester.
The experts agree it is likely the arrester was a
distribution class arrester, which could effectively handle
65KA, and the lightning strike generated 87.9KA. Thus, if
all the energy from the strike was directed to the
arrester, the capacity of the arrester was exceeded.
On the other hand, Smith contradicted the testimony of
Brooks and Owens, opining a significant portion of the
energy from the strike would have been dissipated
throughout the system, giving the infinite busing design of
the distribution lines. Thus, in his opinion, all of the
energy from the strike would not have been impressed upon
the arrester, and he further did not believe it possible to
state the exact location of the strike other than the fact
it was in close proximity to the lake house.
After carefully considering and weighing the evidence, the
district court rejected Owens’s and Brooks’s explanation
that there was a direct strike to the electrical equipment
as inconsistent with the lack of damage to anything other
than the transformer. Agreeing with Smith, the court found
it improbable the full magnitude of the electric current
was impressed upon the arrester, and the dissipated
current, even if reduced merely 25%, would have been within
the capacity of the arrester. Thus, it was more probable
than not the strike did not overwhelm the arrester and the
damage would not have been sustained had the arrester been
properly functioning or attached, as the dissipated current
would have been within the capacity of the arrester to
ground and protect the transformer. Although Entergy’s
experts highly contested Smith’s conclusions attributing
the failure of the arrester to the magnitude of a direct
strike to the electrical equipment, they did not present
objective evidence sufficient to contradict Smith’s
testimony or to establish any other reasonable hypothesis,
given the magnitude of the strike, but the lack of visible
damage to the arrester, the pole, and the ground
conductors.
Our review of the record demonstrates there was a
reasonable basis for the district court’s conclusion that
it was more probable than not Entergy’s negligence caused
the damage in this case. The record does support the
conclusion Entergy’s failure to maintain or install its
arrester more probably than not caused the damage to the
transformer, which, in turn, resulted in the over voltage
in the electrical service to the house, which led to the
fire, because, according to Smith, had the arrester been
operational, the dissipated current would have been within
the capacity of the arrester to ground and prevent over
voltage to the transformer. Accordingly, we find the
district court did not err as the evidence viewed in its
entirety does exclude any other reasonable hypothesis with
a fair amount of certainty, particularly in light of the
district court’s credibility determination of the expert
testimony.
In conclusion, we find the court of appeal erred in
reversing the district court’s determination of breach and
causation as manifestly erroneous. Our review of the record
in its entirety reveals the district court did not
manifestly err in concluding Entergy breached its duty to
the plaintiffs and its breached caused the fire, given the
court’s reasonable reliance upon the testimony of
plaintiffs’ expert.
DECREE
For the foregoing reasons, the judgment of the court of
appeal is reversed and the judgment of the district court
is reinstated in its entirety.
REVERSED.
[fn1] These included reports issued by StrikeNet and
StrikeFax, which the experts explained are generated by the
same company under different names designating the method
of delivery. The company, Vaisala, sets out a network of
antennas and grids around the country to register and
pinpoint lightning strikes. It reports only cloud-to-ground
strikes and indicates positive and negative strikes by the
use of symbols preceding the KA reading. A subtraction
symbol indicates a negative strike. Positive strikes are
reported without symbols. The strike in this case was
reported as a “87.9KA” strike.
[fn2] The tubular bushing device situated on the top of the
tank contains the H1 lead and is also connected to the
arrester. The arrester is also connected by wire to the
distribution line.
[fn3] This class of arrester will direct or bleed any
current in excess of 20 to 27KV to ground.
[fn4] This photograph was admitted into evidence and marked
as Entergy Trial Exhibit #2.
[fn5] This action became the subject of a spoliation of
evidence claim by plaintiffs raised in the lower courts.
Both the district court and the court of appeal rejected
plaintiffs’ claim to the presumption of spoliation because
Entergy explained the arrester was probably removed and
discarded in accordance with the standard operating
procedures shortly after the apparatus was removed from the
scene, and the plaintiffs did not take steps to preserve
the transformer. The courts further found no evidence
Entergy intentionally destroyed the arrester to deprive
plaintiffs of its use. At the time the arrester was
discarded, no litigation was pending.
Although the plaintiffs briefed this issue for oral
argument, this issue was not raised in the plaintiffs’ writ
application to this Court and is not properly before us,
except as to Entergy’s ability to meet its burden of proof
in its affirmative defense of force majeure. Boudreaux v.
State, Through Dept. of Transp. and Development, 01-1329,
p. 5 (La. 2/26/02), 815 So.2d 7, 11 (finding additional
questions briefed for oral argument, but not contained in
the original writ application, are not properly before the
Court). Therefore, we pretermit this interesting issue for
another day.
[fn6] Plaintiffs also affirmatively alleged the application
of the doctrine of res ipsa loquitur to the facts and
allegations of this claim. Because it seemed likely to the
district court house fires could be caused by lightning in
the absence of negligence, the court concluded res ipsa had
no application to this case. This issue was not raised in
this Court.
[fn7] On August 13, 2003, the plaintiffs filed a partial
motion for summary judgment, raising the issue of
spoliation of evidence as to the disposal of the arrester.
The district court denied the motion on September 3, 2003.
[fn8] Although the parties stipulated to the date of the
fire as occurring on or about April 2, 2000, all the
experts agree the lightning strike, which resulted in the
fire, occurred on the morning of April 3, 2000 at 6:17:46
a.m. Therefore, when we refer to the date of the fire, we
will refer to April 3, 2000, the agreed upon date of the
strike.
[fn9] “Punched through” means the energy bore a hole into
the winding of the transformer.
[fn10] The term “force majeure” means a superior or
irresistible force. Saden v. Kirby, 94-0854, p. 8 (La.
9/5/95), 660 So.2d 423, 428. The concept of force majeure
is similar to the common law concept of “act of God,” which
has been defined as a providential occurrence or
extraordinary manifestation of the forces of nature, which
could not have been foreseen and the effect thereof avoided
by the exercise of reasonable prudence, diligence, and
care, or by the use of those means, which the situation
renders reasonable to employ. Saden, 94-0854 at p. 8, 660
So.2d at 428; Southern Air Transport v. Gulf Airways, 215
La. 366, 376, 40 So.2d 787, 791(1949). An act of God in the
legal sense acts as a defense sufficient to excuse the
defendant’s neglect of a duty and relieve him of liability
for injury. Southern Air Transport, 215 La. at 376, 40
So.2d at 791. However, when a force majeure or act of God
combines or concurs with the conduct of a defendant to
produce an injury, the defendant may be held liable for any
damages that would not have occurred, but for its own
conduct or omission. Saden, 94-0854 at p. 8, 660 So.2d at
428.
[fn11] Plaintiffs also argue the court of appeal failed to
correctly apply the evidentiary burden of proof, which
rested with the defendant, Entergy, to prove its defense of
force majeure. Because the district court and the court of
appeal applied the same evidentiary burden of proof, i.e.,
a preponderance of the evidence, to the affirmative
defense, we pretermit this issue.
[fn12] Because quantum was stipulated to by the parties, the
damage element will not be discussed in this opinion.
WEIMER, J., concurs.
I respectfully concur in the result reached by the
majority.
I write to express concern over the majority’s statement
that the district court “applied” the preponderance of the
evidence burden of proof to Entergy’s affirmative defense
of force majeure. See slip opinion, p. 15. The district
court specifically stated, “After carefully considering and
weighing the evidence in this case, the Court finds that
Entergy did not establish by clear and convincing evidence
that the lightning strike would have overwhelmed an
arrester that was functional and properly attached.”
Nevertheless, as noted by the majority, the court did not
accept the defense experts’ testimony that there was a
direct strike to Entergy’s electrical apparatus and found,
when evaluating the affirmative defense of force majeure
offered by the defendant, “the testimony of plaintiffs’
expert [was] as reasonable and plausible as that of
Entergy’s experts.” When a party that bears the burden of
proof presents proof which is merely equal to its
opponent’s proof, the party with the burden fails to prove
its contention by a preponderance of the evidence.[fn1]
Clear and convincing evidence is an intermediate standard
of persuasion, which requires more than a preponderance of
the evidence, but less than proof beyond a reasonable
doubt; the existence of the disputed fact must be much more
probable than its nonexistence. Louisiana State Bar
Association v. Edwins, 329 So.2d 437 (La. 1976). In
contrast, “[p]roof is sufficient to constitute a
preponderance when the entirety of the evidence, both
direct and circumstantial, establishes that the fact or
causation sought to be proved is more probable than not.”
Talbot v. Talbot, 03-0814, p. 12 (La. 12/12/03), 864 So.2d
590, 600, quoting Cay v. State, Department of
Transportation and Development, 93-0887, p. 4 (La.
1/14/94), 631 So.2d 393, 395. Thus, as in the instant case,
a party that fails to meet a preponderance of the evidence
standard a fortiori fails to meet the more stringent
standard of clear and convincing evidence.
[fn1] I note that LSA-C.C.P. art. 1005, which provides for
affirmative defenses, is silent regarding the necessary
burden of proof. However, the courts that have required
proof by a preponderance of the evidence for establishing
an affirmative defense constitute an overwhelming majority.
See, for example, Harmon v. Lumbermens Mutual Casualty
Company, 247 La. 263, 277, 170 So.2d 646, 651 (1965) (One
who sets up a special defense must sustain it by a
preponderance of the evidence.); A Better Place, Inc. v.
Giani Investment Company, 445 So.2d 728, 732 (La. 1984).
“Our jurisprudence has consistently held that a person
pleading an affirmative defense bears the burden of proving
such a defense, and of course it must be established by a
preponderance of the evidence.” Crescent Cigarette Vending
Corporation v. Toca, 271 So.2d 53, 55 (La.App. 4 Cir.
1972). Accord, Martco Partnership v. Frazier, 01-72, pp.
4-5 (La.App. 3 Cir. 6/6/01), 787 So.2d 1196, 1199; Abadie
v. Markey, 97-0684, p. 11 (La.App. 5 Cir. 3/11/98), 710
So.2d 327, 332; Confederate Welding and Safety Supply, Inc.
v. Bank of the Mid-South, 458 So.2d 1370, 1377 (La.App. 2
Cir. 1984), writ denied, 462 So.2d 1264 (1985); Womack
Brothers, Inc. v. Equipment Rental Services, Inc., 399
So.2d 661, 663 (La.App. 1 Cir. 1981).
More specifically, in Walker v. Department of
Transportation and Development, Office of Highways, 460
So.2d 1132, 1137 (La.App. 2 Cir. 1984), writ denied, 464
So.2d 1377 (1985), the court stated, although in dicta,
“The Act of God defense to strict liability is an
affirmative defense which the [defendant] is required to
establish by a preponderance of the evidence.” However, in
Brannon v. Shelter Mut. Ins. Co., 507 So.2d 194, 197 (La.
1987), this court concluded a higher burden of proof was
warranted when a party asserted the affirmative defense of
sudden unconsciousness to a negligence claim. More recently,
in Talbot v. Talbot, 03-0814 (La. 12/12/03), 864 So.2d 590,
this court rejected a requirement of clear and convincing
evidence in a community property contest and held that the
community presumption contained in LSA-C.C. art. 2340 is
rebuttable by either spouse upon a showing by a
preponderance of the evidence the separate nature of
property brought into the community. We explained:
In civil cases, a party who has the burden of proof must
prove the fact in issue by a preponderance of the
evidence, and not by some artificially created greater
standard. Only in exceptional controversies is the clear
and convincing standard applied in civil cases “where
there is thought to be special danger of deception, or
where the court considers that the particular type of
claim should be disfavored on policy.” [Citations
omitted.]
Id., 03-0814 at 9, 864 So.2d at 598.
VICTORY, J., dissenting.
I dissent from the majority opinion, which applies the
wrong standard of review in deciding this case. Because the
trial court committed legal error by applying the clear and
convincing burden of proof to Entergy’s affirmative defense
of force majeure, rather than the preponderance of the
evidence burden of proof, the manifest error standard of
review does not apply and we must determine the facts de
novo from the record. Wallmuth v. Rapides Parish School
Bd., 01-1779 (La. 4/3/02), 813 So. 2d 341, 345, n. 2.
The court of appeal, upon applying the correct burden of
proof, Hanks v. Entergy Corp., 40,486 (La.App. 2 Cir.
2/1/06), 921 So. 2d 1130, 1135, found in a well —
reasoned opinion that “[t]he plaintiffs’ case, relying on
circumstantial evidence for the strike’s location, did not
exclude the more probable hypothesis that the location of
the strike was within the area near the pole where the Act
of God force overwhelmed the ability of the equipment to
ground the massive charge at the utility pole and prevent
the fire.” Id. at 1143.
For the reasons expressed by the court of appeal, I
respectfully dissent.