Susan Singleton, Independent Executrix of the Estate of Anna May Singleton Robinson, Deceased v. Northwest Texas Healthcare System Inc. d/b/a Northwest Texas Hospital, Roy Castellion, P.T., Antoinette

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Laws-info.com » Cases » Texas » 7th District Court of Appeals » 2006 » Susan Singleton, Independent Executrix of the Estate of Anna May Singleton Robinson, Deceased v. Northwest Texas Healthcare System Inc. d/b/a Northwest Texas Hospital, Roy Castellion, P.T., Antoinette

State: Texas

Court: Texas Northern District Court

Docket No: 07-03-00552-CV

Case Date: 02/28/2006

Plaintiff: Tammy Presley, Individually and as Representative of the Estate of Kevin Lee Presley

Defendant: Gulf States Utilities Company and Entergy Gulf States, Inc.--Appeal from 172nd District Court of Je

Preview:In The

Court of Appeals Ninth District of Texas at Beaumont
____________________ NO. 09-10-00039-CV ____________________ TAMMY PRESLEY, INDIVIDUALLY AND AS REPRESENTATIVE OF THE ESTATE OF KEVIN LEE PRESLEY, Appellant V. GULF STATES UTILITIES COMPANY AND ENTERGY GULF STATES, INC., Appellee

On Appeal from the 172nd District Court Jefferson County, Texas Trial Cause No. E-180,784

MEMORANDUM OPINION This is an appeal from a summary judgment in favor of Gulf States Utilities Company, and Entergy Gulf States, Inc. Appellant argues that Chapter 752 of the Texas Health & Safety Code does not bar plaintiff from recovering against the utility company for its negligence. We affirm the judgment of the trial court.

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BACKGROUND Appellant, Tammy Presley brought the underlying wrongful death suit against Gulf States Utilities Company and Entergy Gulf States, Inc. ("Entergy") after her husband, Kevin Presley ("Presley") was electrocuted. At the time of his accident, Presley was working for Jackey Derryberry, the owner of Fairway Construction. Fairway Construction is a business that engages in hauling dirt. Presley began working for Derryberry on a Wednesday morning, three days before the accident. 1 While working for Derryberry, Presley drove Derryberrys 1988 Mack dump truck. On Presleys first day, Derryberry took the first two loads of dirt so he could show Presley how he wanted the truck shifted and then rode with Presley for several loads thereafter. According to Derryberry, Presley was a "great driver" and "knew what he was doing." On the day of the accident, Derryberry and Presley were digging a lake and hauling the dirt down the road to build a pad for a barn. Derryberry had some other lease trucks working that day and sent them back to the pit to start on a second job, but kept Presley with him. While at the work site with Derryberry, Presley raised the bed of the truck to dump and Derryberry noticed that a pin had come out of the tailgate latch on the passenger side of the truck. According to Derryberry, the pin had not been missing the day before. Derryberry told Presley, there was a ,,"tailgate latch hanging on this side, but its fine."

Entergy conceded for purposes of appeal that Presley was an employee of Derryberry at the time of his accident.
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Derryberry then told Presley, ,,"[w]ere at the pit. Were going right across the street. Ill call Jody. Hell load you in the front anyway. And I want to finish this job so we dont have to work Sunday." According to Derryberry, Presley said, ,,"Okay." Presley asked Derryberry if there was an auto parts store nearby, and Derryberry told Presley there was but they didnt carry that particular pin and to just go back to the "pit" and Derryberry would handle the repair on Monday. After Derryberry sent Presley back to the pit to help the other workers finish the second job, Derryberry stayed at the original work site to finish up there. Instead of going to the pit, Presley stopped at the NAPA auto parts store. Presley presumably raised the bed of the dump truck in the stores parking lot to better access the tailgate latch. The raised bed of the dump truck he was operating made contact with the power line, and Presley was electrocuted. It is undisputed that Presleys electrocution resulted from a contact between the raised bed of the dump truck and the power line. It is also undisputed that the power line was carrying 34,000 volts of electricity if measured between conductors and 19,000 volts if measured to ground. During his deposition, Derryberry explained that the NAPA store was on the way back to the pit. Derryberry did not ask Presley to stop at the NAPA auto parts store and did not know that Presley was going to the NAPA store. According to Derryberry, the dump truck bed did not need to be raised to look at the remaining pin or to pull out the remaining pin. Derryberry did not know why Presley raised the bed of the dump truck but
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theorized that he had done so because "if you raise the bed, its easier to get to that pin." Presley never made it into the auto parts store. Derryberry further stated that the dump truck has a cab guard that restricts the view above the bed and to the rear of the truck. Tammy Presley filed a wrongful death suit in which she asserted that Entergy was negligent in failing to: maintain the power line at a sufficient height so as not to pose a danger, respond to prior complaints regarding the need to raise the power line, implement and follow policies and procedures for responding to requests to raise a power line, maintain the power line in accordance with Federal and State statutory guidelines and industry standards, warn Presley of the dangerous condition, take reasonable precautions, perform reasonable inspections and for violating the Electrical National Safety Code. Entergy filed a motion for summary judgment asserting that pursuant to Chapter 752 of the Health and Safety Code, Presley owed Entergy indemnity for damages associated with the incident and therefore, was precluded from recovering under the asserted causes of action. The trial court granted Entergys motion for summary judgment and this appeal followed. STANDARD OF REVIEW We review the trial courts grant of Entergys motion for summary judgment de novo. Provident Life & Accident Ins. Co. v. Knott, 128 S.W.3d 211, 215 (Tex. 2003). To prevail on a traditional motion for summary judgment, the movant must establish that there is no genuine issue of material fact so that the movant is entitled to judgment as a matter of law. Tex. R. Civ. P. 166a(c); W. Invs., Inc. v. Urena, 162 S.W.3d 547, 550 (Tex. 2005).
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We must determine whether Entergy carried its burden to establish that there existed no genuine issue of material fact. Shah v. Moss, 67 S.W.3d 836, 842 (Tex. 2001). In making this determination, we assume all evidence favorable to the nonmovant is true, and indulge every reasonable inference in the nonmovants favor. IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794, 798 (Tex. 2004). DISCUSSION Chapter 752 of the Texas Health and Safety Code regulates the performance of activities near power lines. See Tex. Health & Safety Code Ann.

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