1 District Judge of the Northern District of Ohio, sitting by

designation.

1 

### REVISED

United States Court of Appeals,

Fifth Circuit.

No. 96-30062.

BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Appellee,

v.

JOHNSON BROTHERS CORPORATION OF LOUISIANA, et al., DefendantsAppellants.

Feb. 26, 1997.

Appeal from the United States District Court for th e Eastern

District of Louisiana.

Before DAVIS and DUHÉ, Circuit Judges, and DOWD, 1 District Judge.

PER CURIAM:

Plaintiff-Appellee filed suit against Defendants-Appellants to

recover for damage to two buried telephone cables which occurred

during excavations conducted pursuant to a contract with the State

of Louisiana Department of Transportation and Development. The

district court granted summary judgme nt on the question of

liability and subsequently did not permi t submission of the

question of comparative fault to the jury. Following a jury trial

on the question of damages, a monetary judgment was entered in

favor of plaintiff. Defendants appealed.

I. BACKGROUND

On August 11, 1994, BellSouth Telecommunications, Inc.

("BellSouth") filed suit against Johnson Brothers Corporation of2 Utility Plat No. F2, in effect si nce June 24, 1991, is the

particular plat upon whic h Johnson Brothers relied to locate the

cable and conduit. This plat depicts the cable and conduit run

between manholes J-11 and J-111/2 along Carondelet Street as being

located within the actual street and not on the curb side of the

2 Louisiana, Ohbayashi Corporation, Johnson Brothers Corporation and

Ohbayashi Corporation (A Joint Venture) (hereafter collectively,

"Johnson Brothers") for damage to BellSouth's underground conduit

and cables. The damage occurred on August 13, 1993, during an

excavation which Johnson Brothers was per forming pursuant to a

contract with the State of Louisiana Department of Transportation

and Development ("DOTD") for work on the Greater New Orleans Bridge

Project No. 2.

In its Answer filed on October 4, 1994, Johnson Brothers

admitted that it had not complied with Louisi ana's Underground

Utilities and Facilities Damage Prevention Law ("Damage Prevention

Law" or "the Act"), La.Rev.Stat.Ann. §§ 40:1749.11, e t seq., but

disput ed that this violation provided the basis for recovery by

BellSouth. Johnson Brothers also averred comparative fault on the

part of BellSouth for its failure to provide accurate and reliable

information with respect to the location of its cables.

Following initial discovery, BellSouth filed a motion for

summary judgmen t contending that Johnson Brothers' failure to

comply with the Damage Prevention Law made it liable to BellSouth

for the damages incurred. In opposition, Johnson Brothers argued

that BellSouth was precluded from recovery by its own negligence in

submitting to the DOTD erroneous plats upon which Johnson Brothers

relied in performing the excavation. 2street. That depiction turned out to be erroneous, a fact admitted

by BellSouth. (Response to Defendants' Request for Admissions,

Nov. 1 and 2).

3 Johnson Brothers had presented its argument on this point in

its original opposition to BellSouth's motion for summary judgment.

Although the argument was not crystal clear, it appeared to be as

follows: BellSouth violated § 38:2223 by providing inaccurate

plats to the DOTD when the two entered into a contract at the

outset of the bridge project. Therefore, since the Damage

Prevention Law itself provides, at § 40:1749.21(A), t hat the Act

"shall not affect any civil remedies for personal injury or property damage, including damage to underground facilities or

utilities[,]" Johnson Brothers should not be precluded by its own

violation of the Act from relying upon § 38:2223 as the basis for

a defense of comparative negligence under § 40:1749.21(A).

3 On May 25, 1995, the district court granted summary judgment

in favor of BellSouth on the question of liability. BellSouth then

filed a motion for reconsideration or, in the alternative, motion

in limine seeki n g clarification of the court's ruling.

Specifically, BellSouth sought clarification as to whether Johnson

Brothers' defense of comparative negligence r emained viable. On

June 27, 1995, treating BellSouth's motion as one in limine, the

district court granted the motion and clarified that BellSouth's

pre vious provision of erroneous plats to the DOTD under

La.Rev.Stat.Ann. § 38:2223 could not form the basis for comparative

fault.

Johnson Brothers then filed a motion for reconsiderat i on

and/or for leave to present evidence of BellSouth's comparative

fault. 3 BellSouth filed a motion for summary judgment on the

quantum of damages to which it was entitled. On October 11, 1995,

the district court denied BellSouth's motion, concluding that there

were genuine issues of material fact which precluded summary4

judgment on damages. It also denied Johnson Brothers' motion,

making clear that it had already found t hat § 38:2223 could not

serve as a basis for comparative fault under the Damage Prevention

Law.

Following trial to a jury on the question of damages, a

judgment in the amount of $54,092.18 was entered in favor of

BellSouth.

Johnson Brothers appea led from the various rulings of the

district court and from the final judgment, raising essentially two

issues on appeal: (1) whether the district court erred by refusing

t o allow Johnson Brothers to submit evidence to the jury o n the

issue of BellSouth's comparative fault; and (2) whether the

dis trict court improperly instructed the jury on the issue of

damages.

II. DISCUSSION

A. The District Court's Ruling on Summary Judgment, as Clarified by

Subsequent Rulings

We review grants of summary judgment de novo, guided by the

standards of Federal Rule of Civil Procedure 56, whi ch provides

that sum mary judgment is appropriate "if the pleadings,

depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine

issue as to any material fact and that the moving party is entitled

to judgment as a matter of law." Fed.R.Civ.P. 56(c).

In this case, the material facts are undisputed: (1) Johnson

Brothers damaged BellSouth's cables; (2) BellSouth's Utility Plat

No. F2 purporting to show the location of the cables was erroneous;5

(3) Johnson Brothers relied on Utility Plat No. F2 as it proceeded

with the excavation on August 13, 1993; and (4) Johnson Brothers

did not comply with Louisiana's Damage Prevention Law.

The question which the district court had to re solve was a

question of law, specifically: whether Johnson Brothers' violation

of the Damage Prevention Law precluded introduction of evidence of

comparative fault on the part of BellSouth.

"It is well-established that this court revi ews de novo

questions of law raised in summary judgment appeals. S ee Eugene v.

Alief Indep. Sch. Dist., 65 F.3d 1299, 1303 (5th Cir.1995). More

specifically, we revi ew a district court's interpretation of a

state statute de novo. S ee Transcontinental Gas Pipe Line Corp. v.

Tran sportation Ins. Co., 953 F.2d 985, 987 (5th Cir.1992)."

Occidental Chemical v. Elliott Turbomachinery Co., 84 F.3d 172, 175

(5th Cir.1996).

Thus, on review, this court must determine whether the

district court correctly con strued the Damage Prevention Law to

preclude Johnson Brothers' comparative negligence claim.

Louisiana's Damage Prevention Law provides, in pertinent part:

A.

... [N]o person shall excavate or demolish

... near the

location of an unde rground facility or utility, ... without

having first ascertained in the manner prescribed in

Subsection B of this Section, the approximate location of all

underground facilities or utilities in the area which would be

affected by the proposed excavation or demolition.

B. (1) Except as provid ed in R.S. 40:1749.15 [emergency

exc a vation], prior to any excavation or demolition, each

excavator

... shall serve telephonic notice of the intent to

excavate or demolish to the regional notificati o n center

serving the area in which the proposed excavation or

demolition is to take place. Such notice shall be given to

the notification center at le ast forty-eight hours, but not6

more than one hundred twenty hours, excluding weekends and

h olidays, i n advance of the excavation or demolition

activity....

La.Rev.Stat.Ann. § 40:1749.13 (West Supp.1997) (emphases added).

Following the statutory notice, the r egional notification center

notifies "all member operators having underground facilities in or

near the site of the proposed excavation." § 40:1749.14(B). The

operator then must provide the excavator with the approximate

location and type of underground facilities and may visit the site

and mark the location and type of utilities involved. §

40:1749.14(C). Violators of these provisions may be fined as much

as $250 for a first violation and as much as $1,000 for subsequent

violations. § 40:1749.20.

Johnson Brothers does not dispute t hat it failed to notify

BellSouth in violation of the Damage Prevention Law. It contends,

however, that the lower court erred in finding that BellSouth's

alleged violation of § 38:2223 could not support a comparative

fault defense. Section 38:2223, which governs the commencement of

work under public contracts, provided at the time of the accident:

A. Whenever any public entity enters into a contract for the

construction, alteration or repair of any public works, the

public entity through its official representatives shall,

before the issuance of any wo rk order and before the

commencement of any work, give notice of such contract, in

writing, to all utility, communication a nd public service

companies and all public agencies and boards who furnish any

utility, gas, water, electrical, communication, sewerage or drainage services which may have underground pipes, cables or

any other undergr ound installation which may be within the

right-of-way where the public work is to be constructed,

altered or repaired....

Said written notice shall require that the person,

partnership, corporation, board or age ncy so notified shall

furnish to the public entity

... a diagram or plat showing the4 In 1995, the statute was amended to include the following

language:

This Section shall not relieve any public entity or

contractor from the responsibility to give notice

o f intent to excavate or demolish to the re gional

notification center or centers serving the area in

which the proposed work is to take place in o rder

to be in compliance with the provisions of the

"Louisiana Underground Utilities a nd Facilities

Damage Preven t ion Law" as provided for in R.S.

40:1749.11 through 1749.22.

La.Rev.Stat.Ann. § 38:2223(B) (West Supp.1997).

5 BellSouth's representatives had no in dependent recollection

or record of having provided the plats, but admitted that BellSouth

would have done so in the ordinary course of business as it relates

to the bridge project.

7 location of such underground installations within the

right-of-way, a copy of which shall be furnished by the public

entity to the contractor before commencement of the work under

the contract. If such diagram or plat is not furnished within

the time specified or any extension thereof granted by the

public entity, the work order may be issued and the work

commenced.

Should the diagram or plat not be furnished or the location of

the underground cables, pipes or other underground

installations be inaccurately shown thereon, the public entity

and the contractor shall be released from any responsibility

in connection with their damage unless such damage is caused

by the negligence of the public entity or contractor.

La.Rev.Stat.Ann. § 38:2223 (West 1989) (emphases added). 4

Apparently, BellSouth provided plats to the DOTD, as required by

this statute, in the early 1980s when Louisiana began the Greater

New Orleans Bridge Project No. 2. 5 Johnson Brothers argues that

because the plats provided to the DOTD and on which Johnson

Brothers relied were inaccurate, it should have been all owed to

sub mit to the jury the question of whether BellSouth's fault

contributed to its own damage.6 The sole Louisiana appellate court to a nalyze the Damage

Prevention Law did not impose absolute liability on the part of the

excavator-defendant e ven though the excavator had violated the

8 The district court concluded that the mandatory comprehensive

language of the Damage Preven tion Law precluded Johnson Brothers

from asserting BellSouth's comparative negligence. We find the

dis trict court's reasoning to be unpersuasive for two reasons.

First, its treatment of v iolations of the Law is irreconcilable

with judicial treatment of other analogous st atutory violations.

Second, the lower court's interpretation is inconsistent with the

L aw's penalty and remedy provisions and, as a consequence

,

improperly transforms thi s penal safety statute into a predicate

for strict civil liability.

BellSouth accurately characterizes the language of the Law as

mandatory. However, most safety statutes are compulsory in nature,

and under Louisiana case law, the violation of such a statute does

not, in and o f itself, impose civil liability. W eber v. Phoenix

Assurance Co. of New York, 273 So.2d 30, 33 (La.1973) (rejecting

concept that violation of penal statute constitutes "negligence per

se"); s ee, e.g., Nolan v. Jefferson Downs, 592 So.2d 831 (La.App.

5th Cir.1991), writ denied, 596 So.2d 559 (La.1992); W uest v.

Fosco Enterprises, Inc., 544 So.2d 1328 (La.App. 4th Cir.1989).

"Civil responsibility is imposed only if the act in violation of

the statute is the legal cause of damage to another." F aucheaux v.

Terrebonne Consol. Gov't, 615 So.2d 289, 292-93 (La.1993). Nothing

in the language of the Damage Prevention Law indicates that it was

meant to disturb these principles of Louisiana tort law. 6not ification provision. S outh Central Bell Telephone Co. v.

Sewerage and Water Ltd. of New Orleans, 652 So.2d 1090 (La.App. 4th

Cir.), writ denied, 634 So.2d 1090 (La.1995). Instead, the court

analyzed the claim under general negligence principles and looked

to statutes and case law only to establish the excavator's duty to

inform himself of the location of underground cables. No

comparative negligence defense was asserted.

9 Nor does the mandatory language of the statute foreclose the

assertion of comparative fault in a negligence claim. I d. at 294-

9 5 (applying comparative fault analysis where defendant violated

regulation but plaintiff's negligence contributed to harm).

Louisiana's comparative fault statute provides that "[w]hen

contributory negligence is applicable to a claim for damages," the

amount of dam ages recoverable is reduced in proportion to the

degree of negligence attributable to the plaintiff. La.Civ.Code

art. 2323. In turn, contributory negligence "is applicable" when

there is evidence of plaintiff's fault. N ealy v. LeBlanc, 654

So.2d 468, 471 (La.App. 1st Cir.1 995). Defendants asserted that

BellSouth violated § 38:2223 in providing inaccurate plats and that

the violation of BellSouth's statutory du ty caused the damage to

its underground cables and related equipment. While the factfinder

may conclude that BellSouth's statutory violation was not a legal

cause or cause in fact of the accident, the district court, on this

summary judgment record, was not entitled to bar consideration of

BellSouth's comparative fault.

This conclusion is further supported by Damage Prevention Law

provisions that suggest that the legislation is intended to act as

a penal safety provision and nothing more. Under § 40:1749.20,

violators of the Law may be fined as much as $250 for a first10

violation and as much as $1,000 for subsequent violations; this

penalty can b e imposed whether or not damages have occurred.

Furthermore, the Damage Prevention Law itself, at § 40:1749.21(A),

expressly negates any intent to provide a comprehensive civil

liability scheme to the e xclusion of Louisiana tort principles.

That section provides:

This Part shall not affect any civil remedies for personal

injury or property damage, including dama ge to underground

facilities or utilities.

§ 40:1749.21(A).

The above provision is not a unique Louisiana statute. We

find an almost identical provision in the Louisiana Criminal Code,

which provides:

Nothing in this Code shall affect any civil remedy provided by

the law pertaining to civil matters, or any legal power to

inflict penalties for contempt.

La.Rev.Stat.Ann. § 14:6 (West 1986). The Louisiana Supreme Court

has applied this same principle to penal safety statutes located

outside the Criminal Code itself and held that those provisions may

provide evidence of a duty, but nothing more. S ee Laird v.

Travelers Ins. Co., 263 La. 199, 267 So.2d 714, 717 (1 972) ("

"Criminal statutes are not, in and of themselves definitive of

civil liability' and do not set the rule for civil liability, but

they may be guidelines for the court in fixing civil liability."

(quoting Pierre v. Allstate Ins. Co., 257 La. 471, 242 So.2d 821,

829 (1970)); s ee also Boyer v. Johnson, 360 So.2d 1164 (La.1978).

After considering the language of the entire Damage Prevention

Law, we see no reason to treat th is act differently from other11

penal safety statutes. The Louisiana courts have consistently held

that those statutes may be used to demonstrate a duty but are not

designed to impose strict civil liability.

In sum, we conclude that the district court erred in

precluding Johnson Brothers from arguing that BellSouth's

comparative negligence in submitting erroneou s plats to the DOTD

contributed to this accident.

B. The Jury Instructions

Johnson Brothers also asserts as error the district court's

instructions to the jury on the question of compensatory damages.

Specifically, Johnson Brothers argues that the district court erred

in not fully explaining the legal principle set forth in Louisiana

Power & Light Company v. Smith, 343 So.2d 367 (La.App. 4th

Cir.1977).

We have established a two-part test for challenges to jury

instructions:

First, the challenger must demonstrate that the ch arge as a

whole creates "substantial and ineradicable doubt whether the

jury has been properly guided in its de liberations."

[citation omitted]. Second, even if the jury instructions

were erroneous, we will not rev erse if we determine, based

upon the entire record, that the challenged instruction could

not have affected the outcome of the case. [citation

omitted]. If a party wishes to complain on appeal of the

district court's refusal to give a proffered instruction, that

party must show as a thresho ld matter that the proposed

instruction correctly stated the law. T r eadway v. Societe

Anonyme Louis-Dreyfus, 894 F.2d 161, 167 (5th Cir.1990).

F.D.I.C. v. Mijalis, 15 F.3d 1314, 1318 (5th Cir .1994) (quoting

Bender v. Brumley, 1 F.3d 271, 276-277 (5th Cir.1993)).

In Louisiana Power & Light Co. v. Smith ("LP & L"), the case

relied upon by Johnson Brothers as support for its argument that7 Proposed Jury Charge No. 9:

Damages—Calculation

The fact that plaintiff herein is a public utility

and subject to a governmental regulatory agency does not

12 the trial court's instructions on damages were erroneous, the

Fourth Circuit Court of Appeal of Louisiana discussed the elements

which can properly be included in an award of compensatory damages

"when a utility co mpany undertakes its own ... repairs and/or

replacement[.]" I d., 343 So.2d at 368. In L P & L, the utility

company sued the owner and insurer of an automobile which had

collided with a 40-foot wooden utility pole. The amount of damages

awarded wa s the sole issue on appeal. The court concluded, not

surprisingly, that only those damages are recov erable which are

proven to have been proximately caused by the defendant's actions.

In other words, to the extent an element such as overhead cost is

actually proven to have b een caused by a defendant's wrongful

actions, that element can be included in the damages calculation.

This is simil arly true with respect to the determination and

application of depre ciation as an offset. The court rejected

inclusion in the damages calculation of any portion of general

operating expenses, such as fixed salaries of office personnel,

which are "remote matters from the accident" and which "would have

been paid [even] if the defendant had not

... damaged the connected

facilities." Id. at 369.

Johnson Brothers had sought to ha ve three specific

instructions included in the jury charge. 7affect the rule of damages to be applied in this case. A tortfeasor should not be penalized because of the

public character of the corporation which seeks to recover. The

accounting procedure cannot change established principles of tort

liability. The tortfeasor is liable for the value of the asset at

the time of the damage, and any change in this liability resulting

from bookkeeping methods is unwarranted.

Proposed Jury Charge No. 11:

Damages—Unrelated Factors

Under BellSouth's internally-generated operating

procedures, certain costs of doing business have been

allocated in the method it used in this case to calculate

its damages. However, if you find that certain of those

allocated expenses would have been incurred independent

of the damage to its cable caused by Johnson [Brothers]

then those expenses cannot be awarded. If, for example,

you find that the "overhead factors" made up of costs of

doing business such as headquarters-type expenses, land

and building expenses, vehicle use, headquarters-type

staff personnel expenses, position and benefits, costs of

supervision and costs of office support or anything else;

[sic] would have been incurred by BellSouth regardless of

the cable damages, you should approp riately reduce or

reject its rate for calculating damag es by eliminating

such unrelated factors.

Proposed Jury Charge No. 12:

Damages—Estimated Amounts

If you find that plaintiff's evidence regarding

overhead costs, equipment costs or other aspects of its

damage claim are too vague and general then they should

not be awarded. Under Louisiana law where some

percentage factor is given for an overhead expense which

approximates or roughly estimates the actual costs, that

is insufficient to recover such an item of damages.

(Defendant's Requested Jury Charges, Docket No. 42 and 52).

13 With respect to these suggested instructions, the trial judge

stated:

I really don't have any quarrel with the principles in

these various instructions—I think they're more appropriate14

for argument—and I think the instructions we have put together

are enough guidance for the jury to make its decision. There

are other things you have in here that you can argue.

(Trial Transcript, p. 92).

The actual charge given to the jury was as follows:

Compensatory Damages

You must determine an amount that is fair compensation

for all of the plaintiff's damages. These damages are called

"compensatory damages."

The purpose of compensatory damag es is to make the

plaintiff whole; that is, to compensate the plaintiff for the

damage that the plaintiff has suffered. That is, the purpose

of compensatory damages is to place the injured person as

nearly as possible in the condition he would have occupied if

the wrong had not occurred.

When property is damaged through the legal fault of

another, the primary objective is to restore the property as

nearly as possible to the state it was in immediately

preceding the damage. The measure of damage is the cost of

restoring the property to its former condition.

No mechanical rule can be applied in th e assessment of

property damage. Each case must rest on its own facts and

circumstance as supported by the proof in the record.

The plaint iff here is seeking damages to its property

that include salary, overhead, and other expenses. It is the

plaintiff's burden to prove damages by a preponderance of the

evidence.

Under Louisiana law, "overhead" expenses, including

salaries, directly incurred as a res ult of a tort are

recoverable items of damages.

I instruct you that "overhead" can be allowed as a proper

i tem of recovery if the overhead factor has been proven. A

party seeking "overhead" as a material item of damages must go forward carrying the burden of this proof in the same manner

and with the same dignity as required for the proof of any

other item of damages. The item of "overhead" is nothing more

and nothing less than an element in the overall order of proof

of special da mages. It can be proven and disproven,

challenged and supported in the same way as any other item of

damages and must ultimately pass the same t ests applied in

proof of damages.15 You may award compensatory damages only for injuries that

the plaintiff pro ves were proximately caused by the

defendants' allegedly wrongful conduct. The damages that you

award must be fair compensation for all of the plaintiff's

damages, no more and no less. Damages are not allowed as a

punishment and cannot be imposed or increased to penalize the

defendants. You should not award compensatory damages for

speculative injuries, but only fo r the damage which the

plaintiff has actually suffered.

If you decide to award compensatory damages, you should

be guided by dispassionate common s ense. Computing damages

may be difficult, but you must not let that difficulty lead

you to engage in arbitrary guesswork. On the other hand, the

law does not require that the plaintiff prove the amount of

his losses with mathematical precision, but only with as much

definiteness and accuracy as the circumstances permit.

You must use sound discretion in fixing an award of

damages, drawing reasonable inferences where you fi nd them

appropriate from the facts and circumstances in evidence.

You should consider any damages t o the plaintiff's

property, to the extent you find it proved by a preponderance

of the evidence. You may award as damages an amount equal to

the cost of restoring the property to its condition prior to

being damaged.

(Trial Transcript, pp. 120-122).

Johnson Brothers' challenge to the district court's

instruction on compensatory damages does not meet the first test of

F.D.I.C. v. Mijalis, supra, namely "that the charge as a whole

c reates "substantial and ineradicable doubt whether the jury has

been properly guided in its deliberations.' " 15 F.3d at 1318. We

find no error.

III. CONCLUSION

For the reasons stated above, we vacate the district court's

judgment and remand this case for further proceedings consistent

with this opinion.

VACATED AND REMANDED.16