                                    REVISED
                     United States Court of Appeals,
                              Fifth Circuit.


                                No. 96-30062.

     BELLSOUTH TELECOMMUNICATIONS, INC., Plaintiff-Appellee,

                                      v.

 JOHNSON BROTHERS CORPORATION OF LOUISIANA, et al., Defendants-
Appellants.

                               Feb. 26, 1997.

Appeal from the United States District Court for the 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     judgment    on    the   question    of

liability   and     subsequently    did    not   permit     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 of


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

                                       1
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 performing 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 Louisiana's Underground

Utilities and Facilities Damage Prevention Law ("Damage Prevention

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

disputed 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 judgment 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.2

     2
      Utility Plat No. F2, in effect since June 24, 1991, is the
particular plat upon which 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
     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   seeking    clarification    of     the   court's      ruling.

Specifically, BellSouth sought clarification as to whether Johnson

Brothers' defense of comparative negligence remained viable.            On

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

district court granted the motion and clarified that BellSouth's

previous   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 reconsideration

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 summary



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

making clear that it had already found that § 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 appealed 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

to allow Johnson Brothers to submit evidence to the jury on the

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

district 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, which provides

that    summary   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;

                                   4
(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 resolve 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 reviews de novo

questions of law raised in summary judgment appeals. See Eugene v.

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

specifically, we review a district court's interpretation of a

state statute de novo.     See Transcontinental Gas Pipe Line Corp. v.

Transportation    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 construed 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 underground 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 provided in R.S. 40:1749.15 [emergency
     excavation], prior to any excavation or demolition, each
     excavator ... shall serve telephonic notice of the intent to
     excavate or demolish to the regional notification 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 least forty-eight hours, but not

                                      5
      more than one hundred twenty hours, excluding weekends and
      holidays, in advance of the excavation or demolition
      activity....

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

Following the statutory notice, the regional 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 that 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 work order and before the
      commencement of any work, give notice of such contract, in
      writing, to all utility, communication and 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 underground 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 agency so notified shall
      furnish to the public entity ... a diagram or plat showing the

                                    6
     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 allowed to

submit to the jury the question of whether BellSouth's fault

contributed to its own damage.


         4
      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
                  of intent to excavate or demolish to the regional
                  notification center or centers serving the area in
                  which the proposed work is to take place in order
                  to be in compliance with the provisions of the
                  "Louisiana Underground Utilities and Facilities
                  Damage Prevention 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 independent 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
     The district court concluded that the mandatory comprehensive

language of the Damage Prevention Law precluded Johnson Brothers

from asserting BellSouth's comparative negligence.                 We find the

district court's reasoning to be unpersuasive for two reasons.

First, its treatment of violations of the Law is irreconcilable

with judicial treatment of other analogous statutory violations.

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

Law's       penalty   and   remedy   provisions   and,   as    a   consequence,

improperly transforms this 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 of itself, impose civil liability.                Weber 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");       see, e.g., Nolan v. Jefferson Downs, 592 So.2d 831 (La.App.

5th Cir.1991), writ denied, 596 So.2d 559 (La.1992);                  Wuest 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."              Faucheaux 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.6

        6
       The sole Louisiana appellate court to analyze the Damage
Prevention Law did not impose absolute liability on the part of the
excavator-defendant even though the excavator had violated the

                                        8
      Nor does the mandatory language of the statute foreclose the

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

95 (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 damages 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.              Nealy v. LeBlanc, 654

So.2d 468, 471 (La.App. 1st Cir.1995).             Defendants asserted that

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

the violation of BellSouth's statutory duty 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 first


notification provision.     South 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
violation and as much as $1,000 for subsequent violations;    this

penalty can be 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 exclusion of Louisiana tort principles.

That section provides:

     This Part shall not affect any civil remedies for personal
     injury or property damage, including damage 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.        See Laird v.

Travelers Ins. Co., 263 La. 199, 267 So.2d 714, 717 (1972) ("

"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));   see 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 this act differently from other


                                 10
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 erroneous 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 charge as a
     whole creates "substantial and ineradicable doubt whether the
     jury has been properly guided in its deliberations."
     [citation omitted]. Second, even if the jury instructions
     were erroneous, we will not reverse 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 threshold matter that the proposed
     instruction correctly stated the law. Treadway 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 that

                                       11
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 company undertakes its own ... repairs and/or

replacement[.]"   Id., 343 So.2d at 368.      In LP & 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 was the sole issue on appeal.      The court concluded, not

surprisingly, that only those damages are recoverable 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 been caused by a defendant's wrongful

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

This is similarly true with respect to the determination and

application of depreciation 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     have   three   specific

instructions included in the jury charge.7

     7
      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
     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 appropriate


          affect 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 appropriately reduce or
          reject its rate for calculating damages 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
     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 damages 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 the assessment of
     property damage. Each case must rest on its own facts and
     circumstance as supported by the proof in the record.

          The plaintiff 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 result of a tort are
     recoverable items of damages.

          I instruct you that "overhead" can be allowed as a proper
     item 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 damages.      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 tests applied in
     proof of damages.


                                14
          You may award compensatory damages only for injuries that
     the plaintiff proves 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 for the damage which the
     plaintiff has actually suffered.

          If you decide to award compensatory damages, you should
     be guided by dispassionate common sense. 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 find them
     appropriate from the facts and circumstances in evidence.

          You should consider any damages to 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

creates "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.


                                   15
16
