Opinion issued September 26, 2013
In The
Court of Appeals
For The
First District of Texas
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NO. 01-10-01123-CV
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ONCOR ELECTRIC DELIVERY COMPANY, LLC, Appellant
V.
MARCO MURILLO , Appellee
On Appeal from the 165th District Court
Harris County, Texas
Trial Court Case No. 2008-64374
DISSENTING OPINION
The trial court erred in submitting a general negligence charge to the jury
with respect to Oncor, an electricity-carrier defendant. Oncor’s position in this
case is unlike AAA (Murillo’s employer), Basic Industries, Inc. (the project
manager) or even Hunt Realty Investments, Inc. (the property developer)—who
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were also found to have been negligent. Oncor did not control Murillo’s salvage
work, nor was Oncor’s negligence, found by the jury, based on Oncor’s
contemporaneous negligent acts. Rather, the case against Oncor was that it failed
to adequately warn about a dangerous condition (energized transformers in an
electrical easement) and failed to exercise reasonable care to make its premises
safe (by reasonably protecting others from contact with energized transformers in
its electrical easement). At the trial court charge conference, Oncor objected that
there was no evidence to support a general negligence claim against it, and Oncor
adopted Basic’s request that the trial court instruct the jury on a premises-liability
theory of negligence rather than a negligent activity.
Because an existing energized transformer within an electrical easement is a
condition of the premises, and not a contemporaneous negligent activity, the trial
court did not submit the proper legal duty with respect to Oncor in the jury charge;
it thus erred in rendering judgment against Oncor on a negligence claim. We
should reverse the case.
I. Defining a premises owner or occupant for claims in negligence.
Oncor (also referred to as TXU Electric Delivery Company in the testimony
and trial exhibits) adduced evidence that the transformers stood on its electrical
utility easement, an easement filed in the real property records of Dallas County in
1971 and initially granted to Dallas Power & Light Company. The easement
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granted Oncor use of the property within its bounds “for the construction,
maintenance, and operation of an electrical transmission.” Oncor exercised this
right in constructing the cement pads and in placing and operating transformers on
them.
Murillo responds that Oncor, as an easement holder, does not own the
property on which the transformers stood, and therefore, it could not be held liable
under a premises-liability theory. See Marcus Cable Assocs. v. Krohn, 90 S.W.3d
697, 700 (Tex. 2002) (explaining that easement is a “non-possessory interest that
authorizes its holder to use the property for only particular purposes.”) (citing
RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d). Thus, Murillo
argues, Oncor cannot rely on the more limited scope of duty applicable to a
premises owner not actively engaged in any activity.
An easement holder who controls or occupies the easement, however, may
be liable in tort as an occupier of the property. The question of legal title for real
property purposes does not define whether a possessor of property has a legal duty
to answer in tort for premises defects it creates. For tort claims like this one, a
“possessor of land” is different than in the property rights context. A “possessor of
land” for the purposes of defining a legal duty in tort is:
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(a) a person who is in occupation of the land with intent to control it,
or,
(b) a person who has been in occupation of land with intent to control
it, if no other person has subsequently occupied it with intent to
control it, or
(c) a person who is entitled to immediate occupation of the land, if no
other person is in possession under Clauses (a) and (b).
RESTATEMENT (SECOND) TORTS § 328E (1965). “The important thing in the law of
torts is the possession, and not whether it is or is not rightful as between the
possessor and some third person.” Id. cmt. a.
Accordingly, “[a] premises-liability defendant may be held liable for a
dangerous condition on the property if it ‘assum[ed] control over and responsibility
for the premises,’ even if it did not own or physically occupy the property.” Cnty.
of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (concluding that, for
purposes of premises-liability claim, county assumed sufficient control over state-
owned causeway because it had maintenance contract with state that included
responsibilities over causeway’s streetlight system) (quoting City of Denton v. Van
Page, 701 S.W.2d 831, 835 (Tex. 1986)). “The relevant inquiry is whether the
defendant assumed sufficient control over the part of the premises that presented
the alleged danger so that the defendant had the responsibility to remedy it.” Id.;
see City of Houston v. Cogburn, No. 01-11-00318-CV, 2013 WL 1136553, at *5
(Tex. App.—Houston [1st Dist.] Mar. 19, 2013, no pet.) (mem. op.) (holding that
plaintiff adequately pleaded, for purposes of premises-liability claim, that city
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exercised control over site where injury occurred because of city’s right of way
over area between parking spaces and meters that customers crossed to make
payment or return to vehicle); Jenkins v. Occid. Chem. Corp., No. 01-09-01140-
CV, 2011 WL 6046527, at *11-12 (Tex. App.—Houston [1st Dist.] Nov. 17, 2011,
no pet.) (prior owner, which constructed flawed acid-addition system that caused
plaintiff’s injury, created dangerous condition; jury found that acid-addition system
was improvement to real property); Entergy Gulf States, Inc. v. Isom, 143 S.W.3d
486, 489–90 (Tex. App.—Beaumont 2004, pet. denied) (analyzing case in which
injury occurred from energized wire on utility company’s right of way as premises-
liability claim); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex.
App.—Houston [1st Dist.] 1994, writ denied) (observing that easement holder has
duty to use ordinary care regarding use and maintenance of easement); see also
Kibbons v. Union Elec. Co., 823 S.W.2d 485 (Mo. 1992) (property owner owed no
duty to construction worker who was electrocuted when truck ran into uninsulated
7200-volt power line over property; electricity provider held easement in which it
placed utility pole carrying and had exclusive control and thus duty to inspect and
maintain lines); Green v. Duke Power Co., 290 S.E.2d 593, 598 (N.C. 1982)
(defendant power company, as holder of easement allowing it to maintain ground-
level transformer on property owned by city housing authority, was solely liable
for injury that occurred when plaintiff child touched exposed and energized portion
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of unlocked transformer); Reyna v. Ayco Dev. Corp., 788 S.W.2d 722, 724 (Tex.
App.—Austin 1990, writ denied) (where city, as holder of easement, had exclusive
use and control of easement property, apartment complex property owner had no
control over and thus no duty to repair open and energized electrical switching
cabinet that caused injury to child tenant).
Oncor undisputedly controlled the transformers on the easement as of the
date of Murillo’s injury, and it introduced evidence that it was the easement holder;
it follows that Oncor had some control over the premises on that date. As the
easement holder and the party that owned and controlled the transformers, Oncor
qualified as an occupier of the premises for the purposes of creating a duty in tort.
II. A premises occupant’s scope of liability: negligent activity vs.
negligently furnishing a dangerous condition.
Texas courts have consistently recognized that negligent-activity claims and
premises-defect claims are independent theories of recovery, and a finding of one
will not suffice to create liability for the other. See Gen. Elec. Co. v. Moritz, 257
S.W.3d 211, 214–15 (Tex. 2008) (distinguishing between negligent-activity claim
and premises-condition claim); Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d
523, 527 (Tex. 1997) (noting “two types of negligence in failing to keep the
premises safe: that arising from an activity on the premises, and that arising from a
premises defect”); see also Mayer v. Willowbrook Plaza Ltd. P’ship, 278 S.W.3d
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901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“[n]egligent activity
and premises defect are independent theories of recovery”).
Although “[t]he lines between negligent activity and premises liability are
sometimes unclear, negligent activity encompasses a malfeasance theory based on
affirmative, contemporaneous conduct by the owner that caused the injury, while
premises liability encompasses a nonfeasance theory, based on the owner’s failure
to take measures to make the property safe.” Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010). A finding of liability for a negligent-activity theory
“requires that the person have been injured by or as a contemporaneous result of
the activity itself rather than by a condition created by the activity.” Keetch v.
Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); see Olivo, 952 S.W.2d at 527. In
contrast, to assess liability in negligence for a premises defect, an injury must
occur as a result of a dangerous condition that the defendant knows or should have
known of, and the defendant fails to reasonably warn of the condition or take
reasonable measures to remedy it. Mayer v. Willowbrook Plaza Ltd. P’ship, 278
S.W.3d 901, 909 (Tex. App. [14th Dist.] 2009, no pet.).
Both kinds of negligence claims require proof of the existence of a legal
duty owed by the defendant to the plaintiff, a breach of that duty, and damages
proximately resulting from the breach. See W. Invs., Inc. v. Urena, 162 S.W.3d
547, 550 (Tex. 2005); West v. SMG, 318 S.W.3d 430, 438 (Tex. App.—Houston
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[1st Dist.] 2010, no pet.). Under a premises defect theory, however, the scope of
the duty is more singularly defined: the plaintiff must establish that (1) the
premises occupier had actual or constructive knowledge of the complained-of
condition; and (2) the complained-of condition posed an unreasonable risk of
harm. Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523, 529 (Tex. 1997)
(citing Corbin v. Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983)). A claim for
an injury that resulted in a premises defect cannot stand without jury findings and
proof to support these specific elements. See id.
It is undisputed that Oncor’s last activity with respect to the transformer was
on June 11 or 12. At that time—a month before Murillo’s injury—Oncor read the
nearby temporary meter, removed it, and closed the temporary electrical account.
On June 7, Scott Shipp requested that Oncor “please cancel the Continuing Service
Agreements (CSA’s) for the following apartments as soon as possible due to their
scheduled demolition: Windfall Apartments.” Oncor responded on June 11:
“Thank you for your fax. Per your request, CSA [for the Windfall Apartments]
ha[s] been cancelled for you effective 6/11/07. If you need any of these properties
turned off, please provide a list of those addresses or account numbers.” Work
records dated June 12 indicate that this work was done.
At trial, Murillo argued that Oncor caused his injuries when it disconnected
the temporary service to the Windfall Apartments, but did not de-energize the
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transformer on Pad B, as Oncor had done at an earlier point with Pad A. On
appeal, in contrast, Murillo faults Oncor for leaving the transformer energized
when Scott Shipp had closed the temporary electricity account. But Murillo points
to no evidence that Oncor was obligated to de-energize its transformer, that it had
been instructed to do so, or that anyone from Oncor had represented that it had
done so. According to Murillo, the Oncor employees never spoke to anyone on the
AAA crew. On the day of the accident, although Murillo had noticed Oncor trucks
parked on the street outside the construction fence about 500 feet away, no Oncor
employees were present at the work site. Only AAA employees were present.
Oncor did not supervise or control Murillo’s work at the jobsite or verify to
anyone associated with the demolition work that the Pad B transformer was either
energized or de-energized. Basic hired AAA, Murillo’s employer, to demolish
one part of the project—the part associated with the Windfall Apartments. Shipp
told all contractors at the site that the Oncor had transformers located on the
property, and that these transformers “were to be left alone and treated as
energized.” The transformers were not within the scope of any demolition work.
Shipp specifically informed Leo Gomez, AAA’s owner and Murillo’s worksite
supervisor, to consider the transformers to be energized. No one at trial testified
that Oncor had represented to anyone they were not.
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Each transformer box had an exterior door and an interior door, each secured
with locks. The transformer boxes conspicuously posted safety warnings. On the
exterior doors, a sign read:
WARNING
Energized Electrical Equipment Inside
KEEP OUT
MAY SHOCK, BURN, OR CAUSE DEATH
If Unlocked or Open
Immediately Call
Your TXU Office at
[toll-free number]
On the interior doors, a sign read:
DANGER
KEEP AWAY
IMMEDIATELY CALL
DALLAS POWER & LIGHT CO.
[telephone number]
Contact with certain parts
within this box can cause
electric shock and death
KEEP AWAY
The signs included illustrations of a figure shocked by a dangerous-looking
caricature of electrical voltage.
Oncor’s failure to turn off an existing energized electrical transformer was
not contemporaneous with Murillo’s injury, and is insufficient to create liability for
general negligence. Without evidence of contemporaneous conduct, Murillo’s
claim against Oncor is “a nonfeasance theory, based on [Oncor’s] failure to take
measures to make the property safe,” and not an activity “based on affirmative,
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contemporaneous conduct by [Oncor] that caused the injury.” See Del Lago
Partners, 307 S.W.3d at 776. Oncor did not energize the transformer while
Murillo worked, or tell anyone that the transformer had been switched off, when in
fact it was not. Absent some affirmative act, no general duty to recognize and
prevent electrical contact during a construction project arises against an electricity
provider. See Houston Lighting & Power v. Brooks, 336 S.W.2d 603, 606 (Tex.
1960) (holding that, where electricity supplier had its employees on construction
site from time to time in connection with supplying temporary electricity, any
knowledge supplier’s employees had of building construction was incidental to
supplying electricity; thus, construction worker who was injured when he
contacted live high-voltage electrical transmission lines “wholly failed to establish
any reason” why electricity supplier should have foreseen injury, and “no duty
arises to act to prevent such unanticipated injury”).
Murillo identifies no other negligent act with respect to Oncor. Neither
Murillo nor anyone else testified that Oncor authorized Gomez or the demolition
crew to enter its transformer boxes. Murillo stated that he saw Oncor trucks
parked on Rambler Street—the street that the Windfall Apartments faced—in the
two days before the incident, about 500 feet away, but he never interacted with an
Oncor employee. The evidence raises no reasonable inference that Oncor engaged
in a contemporaneous act of negligence that caused Murillo’s injury. See Brooks,
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336 S.W.2d at 606 (power company employees in the vicinity of construction
project creates no duty in general negligence to project’s construction workers).
Murillo was injured by the activities of others on the premises, coupled with
Oncor’s energized transformers. Murillo’s non-feasance liability theory, that
Oncor did not de-energize the transformers a month earlier, must be evaluated in
light of premises-liability requirements that consider the risk of harm, warnings,
and reasonable efforts to reduce or eliminate the danger. Compare Tex. Dep’t of
Transp. v. Ramming, 861 SW 2d 460, 465–66 (Tex. App.—Houston [14th Dist.]
1993, writ denied) (car accident that occurred at intersection where employee had
turned off traffic signal during ongoing repair resulted from negligent activity) with
Kroger Co. v. Persley, 261 S.W.3d 316, 320–21 (Tex. App.—Houston [1st Dist.]
2008, no pet.) (pleadings did not present negligent-activity claim where plaintiff
slipped on water near freezer display, evidence showed that freezer’s stocker had
left the area at least fifteen minutes before, and plaintiff admitted she did not see
stocker near display when she slipped); see also Brooks, 336 S.W. 2d at 603
(electrical supplier owed no duty to construction worker who was injured by
contact with live high-voltage electrical transmission lines on construction site).
The record lacks evidence that Oncor engaged in any negligent activity
contemporaneous with Murillo’s injury at the jobsite, or that Oncor controlled the
details of Murillo’s work, or that it had a hand in salvaging cable or that it
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authorized entry into the transformers it operated within its electrical easement, or
that it represented to anyone the status of its transformer as de-energized. Without
such evidence, Oncor’s duty was, at most, that of an occupier of the premises. As
a premises defendant, Oncor was entitled to standard jury instructions that would
have defined the scope of Oncor’s duty to Murillo in light of the warnings to those
who came near its energized transformers and the efforts Oncor made to keep its
premises safe.
Conclusion
The jury’s findings in general negligence, rather than premises liability, do
not support a judgment against Oncor. Olivo, 952 S.W.2d at 529–30 (submission
under negligent-activity theory did not address essential premises defect elements
about knowledge and risk of harm and thus could not support deemed findings
under TEX. R. CIV. P. 279). Because we should sustain Oncor’s appellate
challenge, I respectfully dissent from our judgment affirming the trial court.
Jane Bland
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
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