Opinion issued August 2, 2018
In The
Court of Appeals
For The
First District of Texas
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NO. 01-16-00963-CV
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ELAINE HALE AND KENNETH DORSEY PARKER, JR., Appellant
V.
CENTERPOINT ENERGY HOUSTON ELECTRIC, LLC, Appellee
On Appeal from the 55th District Court
Harris County, Texas
Trial Court Case No. 2015-35049
MEMORANDUM OPINION
Appellants, Elaine Hale and Kenneth Dorsey Parker, Jr., challenge the trial
court’s rendition of summary judgment in favor of appellee, CenterPoint Energy
Houston Electric, LLC (“CenterPoint”), in their suit against it for negligence
related to a transformer fire.1 In their sole issue, appellants contend that the trial
court erred in granting CenterPoint summary judgment.
We affirm.
Background
In their petition, appellants alleged that on June 20, 2013, a transformer
“owned, operated, controlled, and/or maintained by” CenterPoint “started a fire,”
which “caused damage that spread to [appellants’] property.” As a result of the
fire, in addition to the damage to appellants’ property, Hale sustained “pulmonary
complications,” “severe pain, physical impairment, discomfort, mental anguish,
and distress.”
The record reflects that appellants’ property is located at 1120 Texas Street,
Unit 4D, and the transformer fire occurred in an underground vault at 1121 Capitol
Street. Hale, who occupied the property, had been out of the country for
approximately “nine months” when the fire occurred. She returned to the property
on July 1, 2013, but did not learn of the fire until May of 2014, nearly eleven
months after it had occurred.
CenterPoint filed a no-evidence summary-judgment motion, challenging
each element of appellants’ negligence claim. In their response, appellants argued
that there is evidence raising a genuine issue of material fact on each challenged
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Although appellants also sued CenterPoint for gross negligence, they do not raise
any issues with respect to this claim on appeal.
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element. And they attached to their response an affidavit and deposition testimony
from a medical doctor, Arch Carson, and an “Inspection Report” from the
Occupational Safety and Health Administration (“OSHA”). In its reply,
CenterPoint asserted that none of the evidence provided by appellants raised a
genuine issue of material fact as to any element of their negligence claim.
The trial court, without specifying the grounds, granted CenterPoint
summary judgment. Appellants then filed a motion for new trial, asserting that the
trial court had erred in granting summary judgment. This motion was overruled by
operation of law.
Standard of Review
To prevail on a no-evidence summary-judgment motion, a movant must
allege that there is no evidence of an essential element of the adverse party’s cause
of action or affirmative defense. TEX. R. CIV. P. 166a(i); Fort Worth Osteopathic
Hosp., Inc. v. Reese, 148 S.W.3d 94, 99 (Tex. 2004). We review a no-evidence
summary judgment under the same legal-sufficiency standard used to review a
directed verdict. Gen. Mills Rests., Inc. v. Tex. Wings, Inc., 12 S.W.3d 827, 832–
33 (Tex. App.—Dallas 2000, no pet.). Although the non-moving party is not
required to marshal its proof, it must present evidence that raises a genuine issue of
material fact on each of the challenged elements. TEX. R. CIV. P. 166a(i); Ford
Motor Co. v. Ridgway, 135 S.W.3d 598, 600 (Tex. 2004). A no-evidence
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summary-judgment motion may not be granted if the non-movant brings forth
more than a scintilla of evidence to raise a genuine issue of material fact on the
challenged elements. Ridgway, 135 S.W.3d at 600. More than a scintilla of
evidence exists when the evidence “rises to a level that would enable reasonable
and fair-minded people to differ in their conclusions.” Merrell Dow Pharm., Inc.
v. Havner, 953 S.W.2d 706, 711 (Tex. 1997).
When reviewing a no-evidence summary-judgment motion, we assume that
all evidence favorable to the non-movant is true and indulge every reasonable
inference and resolve all doubts in favor of the non-movant. Spradlin v. State, 100
S.W.3d 372, 377 (Tex. App.—Houston [1st Dist.] 2002, no pet.). Because the trial
court’s order granting CenterPoint’s no-evidence summary-judgment motion does
not specify the grounds upon which the trial court relied, we must affirm the
summary judgment if any of the grounds in the summary-judgment motion are
meritorious. FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 872–73
(Tex. 2000). Moreover, we note that if summary judgment may have been
rendered, properly or improperly, on a ground not challenged on appeal, the
judgment must be affirmed. Ellis v. Precision Engine Rebuilders, Inc., 68 S.W.3d
894, 898 (Tex. App.—Houston [1st Dist.] 2002, no pet.).
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Negligence
In their sole issue, appellants argue that the trial court erred in granting
CenterPoint’s no-evidence summary-judgment motion on their negligence claim
because “[t]here exists sufficient evidence to raise a fact question with respect to
proximate cause of the [appellants’] injuries” and there can be “no doubt” that
more than a scintilla of evidence exists with respect to the remaining elements of
their claim.
The elements of a negligence cause of action consist of the “existence of a
legal duty, a breach of that duty, and damages proximately caused by the breach.”
Gharda USA, Inc. v. Control Sols., Inc., 464 S.W.3d 338, 352 (Tex. 2015);
LeBlanc v. Palmer, No. 01-15-00034-CV, 2015 WL 7261532, at *2 (Tex. App.—
Houston [1st Dist.] Nov. 17, 2015, pet. denied) (mem. op.). Because the trial court
did not provide a basis for its ruling, we may affirm if appellants failed to present
evidence raising a genuine issue of material fact on any element of their negligence
claim.
Breach
Appellants first assert that CenterPoint’s employees acted negligently when
they made a “second attempt” to place a cover on the transformer inside the
electrical vault “knowing it did not fit properly.” In response, CenterPoint argues
that appellants have not produced more than a scintilla of evidence as to the
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element of breach because they have not produced any evidence of a “witness who
was actually there when the [fire] occurred” or an “expert in the cause or origin of
the . . . fire.”
“Generally, a public utility has a duty to exercise ordinary and reasonable
care, but the degree of care is commensurate with the danger.” Cura-Cruz v.
CenterPoint Energy Houston Elec., LLC, 522 S.W.3d 565, 570 (Tex. App.—
Houston [14th Dist.] 2017, pet. filed); see also First Assembly of God, Inc. v. Tex.
Utils. Elec. Co., 52 S.W.3d 482, 491–92 (Tex. App.—Dallas 2001, no. pet). “This
‘commensurate with the danger’ standard does not impose a higher duty of care;
rather, it more fully defines what ordinary care is under the facts presented.”
Cura-Cruz, 522 S.W.3d at 570. “Expert testimony is necessary to establish the
applicable standard of care ‘when the alleged negligence is of such a nature as not
to be within the experience of the layman.’” Schwartz v. City of San Antonio ex
rel. City Pub. Serv. Bd. of San Antonio, No. 04-05-00132-CV, 2006 WL 285989, at
*2 (Tex. App.—San Antonio Feb. 8, 2006, pet. denied) (mem. op.) (quoting FFE
Transp. Serv., Inc. v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004)). “In such a case,
the expert testimony must establish both the standard of care and the violation of
that standard.” Simmons v. Briggs Equip. Tr., 221 S.W.3d 109, 114 (Tex. App.—
Houston [1st Dist.] 2006, no pet.).
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Appellants did not provide testimony from any witness that was present
when the fire occurred or any expert testimony to establish that CenterPoint’s
employees acted negligently. The only expert testimony in the record is from a
medical doctor, Arch Carson, who admitted that he is not an expert in the cause or
origin of the type of fire that occurred in this case. The remaining testimony in the
record is from the depositions of the appellants, who both conceded that they did
not witness the fire and do not have any understanding as to its cause.
In support of their argument that “[t]here can . . . be no doubt that
CenterPoint’s employees were negligent,” appellants cite to an OSHA “Inspection
Report” that they attached in response to CenterPoint’s no-evidence summary-
judgment motion. This report, however, does not explain the cause of the
transformer fire, much less purport to establish how CenterPoint violated an
applicable standard of care. See Cura-Cruz, 522 S.W.3d at 570 (explaining
“degree of care is commensurate with the danger”). It simply explains that
CenterPoint employees performed work on the transformer and the fire “occurred
when the employees reattempted to place the cover over” the “terminals of the
transformer.”
Accordingly, we hold that appellants did not present more than a scintilla of
evidence to support the breach element of their negligence claim. Therefore, we
need not address the remaining elements of appellants’ negligence claim
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challenged in the trial court. See FM Props., 22 S.W.3d at 872 (explaining “the
reviewing court must affirm summary judgment if any of the summary judgment
grounds are meritorious”); see also TEX. R. APP. P. 47.1.
Res Ipsa Loquitur
Appellants next invoke the doctrine of res ipsa loquitur to establish that
more than a scintilla of evidence exists to prove CenterPoint’s negligence. In
response, CenterPoint argues that the doctrine is inapplicable here.
The doctrine of res ipsa loquitur is a “rule of evidence by which negligence
may be inferred by the jury; it is not a separate cause of action from negligence.”
Haddock v. Arnspiger, 793 S.W.2d 948, 950 (Tex. 1990). It “is used in certain
limited types of cases when the circumstances surrounding [an] accident constitute
sufficient evidence of [a] defendant’s negligence to support such a finding.” Id.
Plaintiffs can prevail on a no-evidence challenge to their claim of negligence if
they successfully invoke res ipsa loquitur. Mobil Chem. Co. v. Bell, 517 S.W.2d
245, 251 (Tex. 1974).
“The [r]es ipsa doctrine is applicable when two factors are present: (1) the
character of the accident is such that it would not ordinarily occur in the absence of
negligence; and (2) the instrumentality causing the injury is shown to have been
under the management and control of the defendant.” Id. (emphasis added). “The
first factor is necessary to support the inference of negligence and the second factor
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is necessary to support the inference that the defendant was the negligent party.”
Id. “Courts have generally found res ipsa inapplicable where (1) the plaintiff
cannot rely on general knowledge to show that the accident would not occur
without negligence, and (2) the plaintiff has not produced expert testimony that the
injury ordinarily does not occur without negligence.” Trans Am. Holding, Inc. v.
Market-Antiques & Home Furnishings, Inc., 39 S.W.3d 640, 649 (Tex. App.—
Houston [1st Dist.] 2000, pet. denied) (res ipsa jury instruction improper where
plaintiff did not satisfy first factor); see also Rebel Drilling Co., L.P. v. Nabors
Drilling USA, Inc., No. 14-02-00841-CV, 2004 WL 2058260, at *13 (Tex. App.—
Houston [14th Dist.] Sept. 16, 2004, no pet.) (mem. op.) (res ipsa jury instruction
properly denied where no proof of general knowledge or expert testimony offered
to demonstrate “that blowouts do not occur in the absence of negligence”).
In support of the first factor, appellants merely assert that “[t]here can . . . be
no dispute that transformers [do not] normally explode and cause fires in the
absence of negligence.” However, they have not “shown that there is general
knowledge that such a fire cannot occur without negligence.” Trans Am., 39
S.W.3d at 649; see also Schwartz, 2006 WL 285989, at *5 (“[W]hat a power
company’s practices and procedures should be, or what industry standards are,
when a circuit breaker within an electrical distribution is tripped is not within a
person’s general knowledge.”). And appellants cite to no expert testimony that
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supports their assertion that a transformer fire, like the one at issue here, could not
occur in the absence of negligence. The only expert testimony in the record is
from a medical doctor, Arch Carson, who—during his deposition—admitted that
he had “no expertise in the cause and origins of fires.” Accordingly, we hold that
appellants did not satisfy the first requirement necessary to invoke the doctrine of
res ipsa loquitur.
Because appellants did not satisfy the first requirement of res ipsa loquitur,
we need not address the second factor. See Trans Am., 39 S.W.3d at 649 (both
factors are necessary to invoke res ipsa loquitur); see also TEX. R. APP. P. 47.1.
Conclusion
Having held that appellants did not produce more than a scintilla of evidence
to support the breach element of their negligence claim and did not properly invoke
the doctrine of res ipsa loquitur, we further hold that the trial court did not err in
granting CenterPoint’s no-evidence summary-judgment motion.
We affirm the judgment of the trial court.
Terry Jennings
Justice
Panel consists of Justices Jennings, Bland, and Brown.
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