Beall v. Lo-Vaca Gathering Co.

NYE, Chief Judge

(dissenting on motion for rehearing).

I respectfully dissent. Appellant in his motion for rehearing points out the error of this Court in not recognizing that the Supreme Court of Texas has not adopted the Restatement of Torts, Sections 352 or 353, and the error of this Court in not recognizing that the Supreme Court has expressly held contrary to the holdings of this Court. A general statement of the facts exists in the majority opinion and, therefore, a detailed statement of the facts becomes unnecessary. However, a short summary of the pertinent facts is set forth as follows.

Lo-Vaca Gathering Company (hereafter referred to as Lo-Vaca) leased ten (10) acres of land from Edwin Wilde on October 21, 1970. Lo-Vaca’s purpose for leasing the property was for storing and welding pipe. While on the property, Lo-Vaca strung a cable or wire between two utility poles for the purpose of keeping trucks from driving between the two poles. The lease expired in April, 1971. Lo-Vaca returned the property to the owner with the wire still strung between the two utility poles. It can be assumed for summary judgment purposes that the wire created a dangerous situation to users of the land.

Wilde accepted the property in this condition and was aware of the existence of the cable between the two utility poles at the time he accepted the property back from Lo-Vaca. After Wilde had come into possession of the property, the plaintiff Larry Beall, Jr. was injured when he struck the wire cable while riding his motorbike on Wilde’s property.

This Court in our original opinion affirmed the trial court’s action in granting Lo-Vaca’s motion for summary judgment and held that: 1) Lo-Vaca, upon transferring the property back to Wilde, had a duty to disclose to Wilde the existence of the “dangerous condition”; 2) that Lo-Vaca had satisfied that duty; and, 3) that in view of such disclosure by Lo-Vaca and the acceptance of the property by Wilde, Lo-Vaca’s liability to the plaintiff ceased as a matter of law at that time. I am now convinced that we were in error.

The law in Texas raises a question with respect to the legal effect given by Wilde’s knowledge or awareness of the existence of the dangerous condition at the time he accepted the property back. The majority continues to assert that the existence of such factors (as knowledge and acceptance) causes Lo-Vaca’s liability to plaintiffs, to cease as a matter of law at the time Wilde took possession of the property. The rule in Texas is that such factors do not cause Lo-Vaca’s liability to cease, as a matter of law. On the contrary, such factors are material only to the fact question of whether it was Lo-Vaca’s creation of the dangerous condition, or Wilde’s negligence in accepting the property in this condition and failing to remedy the condition, that was the proximate cause of the plaintiff’s injuries.

*368The majority applies Sections 352 and 353 of the Restatement of the Law of Torts (Second) and holds that Lo-Vaca was under a duty to disclose the dangerous condition (wire strung between the poles) to Wilde at the time Wilde retook possession, and having done so, its liability to plaintiff terminated ipso facto as a matter of law.

Although I believe that the law as set out in the Restatement of Torts, Sections 352 and 353, should be the law, I must also recognize the rule that when a principle, rule or provision of law has been decided by the highest court of the state having jurisdiction of the particular case, such decision is binding precedent on courts of lower rank when the same point is again presented in a subsequent suit. Swilley v. McCain, 374 S.W.2d 871 (Tex.Sup.1964); Morriss-Buick Co. v. Pondrom, 131 Tex. 98, 113 S.W.2d 889, 890 (1938, opinion adopted); Metal Structures Corporation v. Plains Textiles, Inc., 470 S.W.2d 93 (Tex.Civ.App.—Amarillo 1971, writ ref'd n. r. e.).

The Supreme Court of Texas has not as yet adopted the Restatement of Torts, Sections 352 or 353 as the law in Texas. In fact, it has actually held contrary to it. Section 352 of the Restatement of Torts (Second) is like the “accepted work” doctrine. This doctrine which is yet to be adopted in Texas is to the effect that although a contractor is found to have performed negligent work or left premises in an unsafe condition and such negligence is found to be a proximate cause of injury, he must nevertheless be held to be immune from liability, solely because his work has been complete and has been accepted in the unsafe condition. See T. J. Mansfield Const. Co. v. Gorsline, 288 S.W. 1067 (Tex.Comm’n App.1926). Such rule, like Section 352 of the Restatement, is not the law in Texas yet.

The “accepted work” doctrine was specifically overruled by the Supreme Court in an opinion written by Justice Norvell in Strakos v. Gehring, 360 S.W.2d 787 (Tex.Sup.1962). There, the court held that the fact that one who assumes control over a dangerous condition left by a contractor may be liable for injuries resulting therefrom does not mean that he who creates the danger should escape liability. The Supreme Court held that the question of liability should be determined or controlled by the fact of causation (foreseeability). The court stated: “Absence of proximate cause is not established as a matter of law simply because premises in a dangerous condition or a contractor’s defective work have been accepted.” (Emphasis supplied.)

The Supreme Court in Strakos, by expressly rejecting the “accepted work” doctrine, refused to follow and made applicable the rule of law as set out in Section 352 of the Restatement of Torts (Second).

The majority, although agreeing that under the Strakos ruling that Lo-Vaca could not escape liability for the offending instrumentality simply by returning possession of the land to Wilde, added the exception that under the Restatement of Torts (Second), Sections 352 and 353, Lo-Vaca had a duty at the time of transferring the property back to Wilde to disclose any dangerous condition existing, and having done so, its liability ceased as a matter of law at that time. Lo-Vaca’s disclosure may have mitigated its damages, or the disclosure may have raised the fact issue that the proximate cause of plaintiff’s injuries rests with Wilde, the landowner, but such disclosure did not exonerate Lo-Vaca from its original mischief as a matter of law.

The factor of disclosure (or awareness) of the dangerous condition by the lessor (Wilde) and its effect was discussed in the Strakos opinion. There the court said:

“The employer’s (Wilde’s) awareness of the danger has no bearing on the contractor’s (Lo-Vaea’s) duty of care. It could, of course, be material to the question of proximate cause or to the employer’s negligence in accepting the work and failing to remedy a dangerous condition.”

It is clear from the Strakos opinion that the Supreme Court did not intend that someone *369in Lo-Vaca’s position would be relieved of all liability merely by disclosing to Wilde the existence of the dangerous condition, but I believe that the Supreme Court intended that such disclosure or awareness would be a factor in considering the question of proximate cause; that is, was it Lo-Vaca’s negligence in erecting the cable between the two utility poles that was a proximate cause of plaintiff’s injuries; or was it Wilde’s negligence in accepting the property with the dangerous condition and failing to remedy such dangerous condition before plaintiff became injured, that was a proximate cause of plaintiff’s injuries?

The majority relies on the United States Court of Appeals case [United States v. Inmon, 205 F.2d 681 (CCA 5th Cir. 1953)] as controlling the law under the facts of this case. The Inmon case approves the general rules in Sections 352 and 353 of the Restatement of Torts, but that court’s approval of the restatement does not bind the Texas Supreme Court or this Court. The Restatement of Torts, Sections 352 and 353, was in existence at the time the Supreme Court handed down the Strakos decision. The court had ample opportunity to then adopt the restatement, but declined to do so. Sections 352 and 353 of the restatement are in substance identical with the “accepted work doctrine” which was specifically rejected by the Supreme Court.

Before the Supreme Court’s decision in Strakos the rule was that an independent contractor was not liable for injuries sustained by third parties after the contractor had completed the work and it had been turned over and accepted by the owner. See Nedler v. Neece Lumber Company, 63 S.W.2d 403 (Tex.Civ.App.—Waco 1933, no writ). To alleviate the harshness of this rule numerous exceptions developed in the Texas decisions. The primary exception to the general rule was stated by the San Antonio Court in Hartford v. Coolidge-Locher Company, 314 S.W.2d 445 (Tex.Civ.App.—San Antonio 1958, no writ). The court stated that “the liability of the contractor is continued even after he has parted with his control over a stipulated work, where the work is turned over to the owner in a manner so negligently defective as to be inherently dangerous to third [parties].”

The majority has, therefore, announced a new rule not in accord with a single Texas case, by holding that Lo-Vaca, by giving notice to Wilde of the dangerous condition existing on the property at the time the property was returned to Wilde, excused itself of liability as a matter of law.

If the prevailing rule is to be abrogated, it is the exclusive prerogative of the Supreme Court of Texas to announce the modification. I would apply the prevailing rule; that a fact issue exists as to whether Lo-Vaca’s negligence in erecting the wire between the two utility poles was a proximate cause of the plaintiff’s injuries. I would reverse the trial court’s granting of the summary judgment and remand the case for trial.