Charles E. Ross and Bill Lovett represented Entergy of Mississippi against a wrongful death claim resulting from an electrical contractor being electrocuted and killed when the light pole that he was erecting touched an overhead power line owned by Entergy.

Mr. Ross and Mr. Lovett filed several motions in limine with the trial court. Of these motions, one sought to have the jury instructed to allocate fault to the plaintiff’s immune employer who had previously been dismissed from the lawsuit, one sought to exclude any testimony or evidence pertaining to whether Entergy should or could have placed the power line underground, one sought to have an Entergy internal memorandum discussing the feasibility of underground power line installation excluded, and one sought to exclude all references to a utility company standard of care other than the exercise of reasonable care.

The trial court granted the first three motions and denied the fourth. On interlocutory appeal, the Supreme Court of Mississippi agreed with Mr. Ross’ and Mr. Lovett’s contention that Mississippi law allows fault to be assessed to immune parties; accordingly, the court affirmed the trial court’s granting of Entergy’s motion in limine regarding fault allocation.

The court also affirmed the trial court’s exclusion of the internal memorandum due to the fact that its prejudicial effect outweighed its probative value. However, the court found that the trial court was incorrect in granting Mr. Ross’ and Mr. Lovett’s motion in limine to exclude evidence pertaining to whether Entergy should have placed the power line underground.

Despite Mr. Ross’ and Mr. Lovett’s argument that the filed rate plan precluded Entergy from placing the power line underground unless the customer agreed to pay for such placement, the court concluded that the filed rate plan did not apply to the case at bar because the Policy For The Extension of Underground Electric Distribution Facilities did not prevent Entergy from placing its power lines underground at its own expense if such placement was feasible.

Finally, regarding the motion in limine pertaining to Entergy’s standard of care, the court ultimately held that the standard of care that Entergy had to meet was derived from Mississippi Code Annotated § 11-7-43, the NESC, and Mississippi case law.

Supreme Court of Mississippi
December 31, 2003