Last week, the Amarillo Court of Appeals affirmed the trial court’s grant of summary judgment in favor of an employer sued for gross negligence in connection with its employee’s death, caused by the employee’s contact with an energized light pole. In Isabel De La Hoya Moreno v. K-Bar Texas Electric, Inc., No. 07-18-00377-CV, 2020 WL 1161097 (Tex. App.—Amarillo, March 10, 2020, mem. op.), K-Bar was tasked with replacing fifteen light poles on a school playground. Employees of K-Bar were attempting to loosen the bolts on the concrete bases of the light poles to determine whether the bolts could be removed or whether it would be necessary to remove the entire base. While leaning to push on the wrench to loosen a second bolt, employee Anthony Moreno fell toward the pole. Upon contact with the pole, he was electrocuted and died.  It was later determined that the light pole was improperly energized due to initial improper installation and subsequent improper modification and repair, none of which was performed by K-Bar, that allowed a live current to come in contact with the frame of the light pole itself. 

At the time of the tragic incident, K-Bar was a workers' compensation subscriber. In accordance with Texas law governing wrongful-death claims against employers who subscribe to workers' compensation insurance –which requires that the legal representative of a deceased employee prove that the employer was grossly negligent in causing the employee's death– Anthony's family filed suit against K-Bar alleging Anthony's death was caused by the gross negligence of K-Bar. 

Subsequently, K-Bar filed a no-evidence motion for summary judgment.  K-Bar argued there was no evidence that (1) the job of loosening the bolts involved an extreme degree of risk, because no electrical work was being performed and (2) it did not have actual, subjective awareness that the light pole was energized.   

The trial court granted K-Bar's motion and the court of appeals affirmed.  The court of appeals concluded that “there was no evidence of a well-known risk of electrocution when loosening bolts on the base of a light pole or any evidence of K-Bar's subjective awareness of the risk of electrocution in performing that particular task.” The court of appeals reasoned that “nothing about what Anthony was doing . . . was considered to be electrical work which would have required electrical standards and safety protocols to be followed.” Further, “K-Bar was not aware of any electrical danger inherent in the performance of loosening bolts in preparation for the removal of light poles.”

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