Jury Finds Entergy Half at Fault for Lineman's Electrocution During Hurricane Gustav Repairs

On September 14, 2008, two weeks after Hurricane Gustav came ashore, Buddy Scarberry, a 47-year-old lineman for Oklahoma Gas and Electric, was working a downed power line in a swampy stretch of countryside near Jennings, Louisiana. His crew was one of several Oklahoma volunteer crews sent to restore power for Entergy and other Louisiana utilities after the storm.

The crew had been told the line was dead. It was not. A worker from another Oklahoma crew, seeing a blown fuse on a nearby pole with no warning tag, grounding wire or pole wrap on it, closed the fuse and re-energized the line. By Scarberry's account, a crewmate near the wire was shocked first, and when Scarberry pushed him clear, the line jumped up and struck him in the chest with 7,600 volts; the crewmate testified instead that Scarberry was holding the line himself when it came alive. The current threw Scarberry into the air and into a pond, where co-workers pulled him out. He was flown to Lake Charles Memorial Hospital.

Scarberry spent a month in the hospital with second and third degree burns to his arms, chest, hands and feet. Doctors performed a partial amputation of his left foot and several skin graft operations. Later he was diagnosed with a traumatic brain injury and a delayed-onset neurological syndrome with symptoms resembling ALS, including hours-long muscle spasms and seizures that left him falling several times a month. His doctors also diagnosed post-traumatic stress disorder and major depression. By trial he relied on his wife for basic care, and his physicians testified he would eventually need round-the-clock attendant care.

He sued Entergy Gulf States Louisiana and Entergy Services in Civil District Court for Orleans Parish. His lawyers from Herman, Herman & Katz, including Russ Herman and Jed Cain, argued that Entergy's circuit boss and crew leader on site, Larry Moore, was responsible for the safety of the crews working under him. Moore admitted he never grounded the line, tagged the fuse, wrapped the pole, held a safety briefing or filled out clearance forms. An industry-standards expert testified that Entergy also overextended Moore and never told him or trained him on what the role required. Entergy countered that downed lines are an obvious hazard and pointed to photographs of Scarberry bicycling and riding horses.

The jury found Entergy 50 percent at fault, Scarberry 30 percent and Oklahoma Gas and Electric, his employer, 20 percent. It awarded $4.75 million in general damages, $3 million in past and future medical expenses and $300,000 for lost earning capacity, a total of $8.05 million. Reading an indemnity clause in the utilities' mutual assistance agreement, the trial judge also made Entergy answer for Scarberry's own 30 percent share.

The Louisiana Fourth Circuit Court of Appeal ruled on February 19, 2014. It upheld the fault split and the general damages, noting Entergy offered no medical testimony to dispute Scarberry's injuries. It found the $300,000 earning capacity figure unsupported by any evidence and raised it to $1,872,030, the amount of the uncontradicted economist's testimony. It also removed the trial judge's order shifting Scarberry's own 30 percent share to Entergy under a mutual assistance agreement. The court entered judgment against Entergy for $4,811,015, half of the amended damages: $2,886,609 against Entergy Gulf States Louisiana and $1,924,406 against Entergy Services, with legal interest from the date of demand.

On May 16, 2014, the Louisiana Supreme Court denied the writ applications filed by both Scarberry and Entergy, leaving the Fourth Circuit's judgment in place.