Entergy wins appeal of 2005 Bridge City case

Steve Korris Aug. 25, 2010, 3:31pm

Ninth District appeals judges wiped out an Orange County jury verdict holding Entergy Gulf States liable for a man's fall from the roof of a moving house.

The Ninth District reversed District Judge Patrick Clark, who entered judgment in favor of Nicholas Traxler for $77,387.86.

Traxler, working for Burkhart House Moving in 2005, plunged more than 16 feet to the pavement in Bridge City after contacting a power wire.

He filed a personal injury suit against Entergy, claiming state law required utilities to raise transmission lines 22 feet above roads and highways.

He argued that Entergy should have protected him.

Trial testimony focused on a meeting between house movers and Entergy representative Kyle Todd, prior to Traxler's accident.

Traxler's employer, Henry Burkhart, testified that he believed he didn't have to call Entergy if a house was 17 feet tall or less.

He said Todd told movers to use their judgment as to whether a particular line might cause a problem.

Burkhart said Todd told them that if they called, Entergy would send someone out.

Todd told jurors he wasn't aware that movers put people on top of houses. He said movers asked for the meeting out of frustration with automated responses.

"I told them 17 (feet) is a good number," Todd said. "Below 17, if they have a problem, if they think they are uncomfortable with that, please call me, but over 17, be sure to call me."

Clark instructed jurors that the 22-foot law applied to their determination of negligence on Entergy's part.

Jurors found negligence all around, assigning 46 percent to Burkhart's company, 44 percent to Entergy, and 10 percent to Traxler.

Burkhart and Traxler had settled prior to trial.

On appeal, Entergy argued that the 22-foot law for transmission lines shouldn't apply to weaker distribution lines like the one Traxler touched.

Entergy denied that Todd's meeting created a duty to protect Traxler.

The utility's logic persuaded Chief Justice Steve McKeithen and Justices David Gaultney and Charles Kreger.

"The evidence adduced at trial indicated that the line in question is a distribution line, not a transmission line," McKeithen wrote.

He quoted definitions in law dividing the two types of lines at 60,000 volts.

He wrote that nothing in the law imposes a duty on an operator of a power line to ensure that those working close to lines comply with the law.

The law imposes that duty on those performing the work, he wrote.

"The evidence concerning the meeting between Todd and Burkhart, as well as Entergy's policy with respect to when calls to it were necessary, does not establish that Entergy undertook to perform services that it knew or should have known were necessary to protect Traxler, or that Entergy failed to exercise reasonable care," McKeithen wrote.

"Absent such evidence of an undertaking, Entergy owed no duty to Traxler; therefore, Traxler failed to establish the elements of negligence," he wrote.

Jacqueline Stroh represented Entergy. Jane Leger represented Traxler.

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