AUSTIN – State Supreme Court justices must decide whether to hold Entergy Gulf States responsible for injuries house mover Nicholas Traxler suffered when he brushed a live wire while riding atop a house on a street in Bridge City.

The Justices set oral arguments for Nov. 10, on a division of opinion between Orange County District Judge Patrick Clark and Ninth District appellate judges in Beaumont.

Clark entered judgment on a jury verdict finding Entergy 44 percent responsible for Traxler's fall to pavement about 17 feet below, but the Ninth District reversed Clark last year.

Chief Justice Steve McKeithen wrote, "Generally, one is under no legal duty to control the conduct of others, even if one has the practical ability to do so."

Traxler sued Entergy and his employer, Burkhart House Moving Co.

At trial, employer Henry Burkhart testified that Entergy representative Kyle Todd told a group of house movers to use their judgment as to whether a line might cause a problem.

Burkhart said he believed he didn't need to call Entergy if a house was shorter than 17 feet.

He said he planned to move a house 16 feet, 10 inches tall.

He claimed Todd told him that if he contacted Entergy, they would send someone even if a house was short of 17 feet.

Burkart testified that he warned Traxler about the wire and told him to get down and avoid it.

Todd testified that when he met with movers, he didn't know they put people on top.

He said, "I told them 17 is a good number."

Traxler claimed Texas utility code requires 22 feet clearance for transmission lines.

He claimed chapter 752 of the code requires a utility company to guard anyone working within 6 feet of a line, and imposes liability on a utility if a violation results in contact.

Jurors assigned 46 percent liability to Burkhart, who had settled the claim against his company.

They assigned 44 percent to Entergy and 10 percent to Traxler.

On appeal, Entergy argued that the 22-foot rule applies to transmission lines crossing state and county roads, but not to distribution lines across municipal streets.

Entergy argued it owed no duty under Chapter 752.

Ninth District judges agreed with Entergy on both points.

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

"Nothing in Chapter 752 imposes a duty upon the owner or operator of a power line to ensure that persons or entities performing work, functions or activities within 6 feet of power lines comply with the requirements of that chapter.

"Rather, Chapter 752 imposes duties upon persons or entities performing work, functions, or activities within 6 feet of power lines."

Jacqueline Stroh represents Entergy, and Jane Leger represents Traxler.

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