Appellate justices recently declined to reinstate an electrocution case against Entergy, opining that the Texas Health & Safety Code bars the plaintiff from recovering against the utility company.

In November 2007, the Southeast Texas Record reported on a wrongful death suit filed by the widow of Kevin Lee Presley.

Tammy Presley had filed her lawsuit in Jefferson County District Court, claiming her husband was performing repairs on a dump truck owned by Jackey Derryberry at the NAPA Auto Parts Store in Montgomery.

Court papers show Presley died from electrocution on June 9, 2007, when the bed of the truck came into contact with a high voltage electric line owned and controlled by Entergy.

On Thursday, Oct. 28, justices seated on the Ninth Court of Appeals of Texas issued a memorandum opinion, ruling that "only Presley controlled the details of his activities at the time of his accident."

According to the suit, Presley was working for Derryberry on a trial basis in Cut and Shoot, Texas.

Three days prior to the incident, Presley had convinced Derryberry to let him drive the dump truck on the condition that he would not have to pay him if Derryberry was not satisfied with his job performance.

Against Derryberry's implicit instruction, Presley drove the dump truck to NAPA to purchase a missing truck pin. For reasons unknown, Presley raised the bed of the truck, causing it to come in contact with Entergy's power lines.

"The dump truck did not need to be raised to look at the remaining pin or pull the pin out," court papers say.

Shortly after the suit was filed, Entergy filed a motion for summary judgment, arguing that Presley violated the Texas Health & Safety Code when he made the decision on his own to take the truck to the store.

Judge Donald Floyd, 172nd District Court, granted the motion Jan. 10, leading Tammy Presley to appeal the court's ruling.

Tammy Presley argued in her appellate brief that Entergy negligently failed to raise the power line to a sufficient height and "failed to conclusively disprove" her cause of action.

Conversely, Entergy contended that Presley was in violation of the code, and therefore unable to claim an action.

"Assuming, without deciding, that Presley was acting in the course and scope of his employment at the time of his injury, the record establishes that he was not acting at the direction, and was in fact acting against the direction, given by his employer," opined Justice Charles Kreger.

"Only Presley controlled the details of his activities at the time of his accident, and only Presley could have complied with the Act by not performing the activity which resulted in his electrocution or by performing it a sufficient distance from the power line. We affirm the judgment of the trial court."

Tammy was suing for survival and punitive damages.

She is represented by attorney Sandee Hart of Orange.

Entergy is represented by Beaumont attorney Christine Kibbe.

Trial case No. E180-784
Appeals case No. 09-10-00039-CV

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