Oncor Electric Delivery Company, LLC v. Marco MurilloAppeal from 165th District Court of Harris County (opinion )
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Opinion issued March 18, 2014
In The
Court of Appeals
For The
First District of Texas
————————————
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. 0864374
OPINION ON REHEARING
In this personal injury lawsuit, appellant Oncor Electric Delivery Company,
LLC (“Oncor”) appeals a judgment rendered on a jury verdict against it and in
favor of appellee Marco Murillo, an employee of Leo Gomez d/b/a AAA
Demolishing (“AAA”).
Murillo sustained serious personal injuries from
electrocution while he worked for AAA at a demolition site in Dallas. The jury
found Oncor (the electricity provider to the site) and two of its co-defendants—
Basic Industries, Inc. (“Basic”) (the project manager) and Hunt Realty
Investments, Inc. (“HRI”) (the property developer)—liable for general negligence,
and it assessed 60% of the responsibility for Murillo’s injuries against Oncor, 10%
against Basic, and 10% against HRI. It also found AAA, a responsible third party,
to be 20% responsible for Murillo’s injuries. Of the defendants found liable to
Murillo, Basic and HRI settled with Murillo after submission of this appeal to the
panel. Only Oncor’s appeal remains pending.
Oncor challenges the judgment against it for general negligence, arguing in
six issues that: (1) Murillo’s only viable claim against Oncor was a claim for
premises-defect liability—which was not submitted to the jury and therefore was
waived; (2) even if applicable, the jury’s verdict in Murillo’s favor against Oncor
on Murillo’s general negligence claim was not supported by legally and factually
sufficient evidence; (3) Murillo’s exclusive remedy against Oncor was a claim for
premises defect liability under Civil Practice and Remedies Code Chapter 95,
which Murillo waived by not securing findings on the essential elements of
premises defect liability; (4) expert testimony is required to prove the standard of
care for power companies under the circumstances of this case, and Murillo failed
2
to establish that Oncor breached that standard; (5) Murillo’s expert was
unqualified; and (6) Oncor is entitled to remittitur for excessive damages for
disfigurement found by the jury. 1
Following the issuance of our September 26, 2013 opinion and judgment
affirming the trial court’s judgment against it, Oncor filed a motion for rehearing
and en banc reconsideration. Oncor argued that the September 26, 2013 opinion
erroneously held that Oncor owed Murillo any duty other than that owed by a
premises occupier, that Oncor exercised control over the manner in which Murillo
performed his work, and that Murillo’s injury was a result of Oncor’s
contemporaneous negligent activity. We grant the motion for rehearing, withdraw
our September 26, 2013 opinion and judgment, and issue this opinion and
judgment in their stead. Our disposition remains unchanged. We dismiss as moot
Oncor’s motion for en banc reconsideration.
We affirm.
Background
Next Block 1-Dallas, LP (“Next Block”) acquired a large tract of multiple
adjacent properties, spanning several blocks in Dallas County. At the time, the
properties housed nine dilapidated apartment complexes, including the Windfall
1
In its appellate brief, Oncor asserts six overlapping detailed issues with subparts,
which it then regroups and argues as four issues. We simplify and restate Oncor’s
six listed issues as stated above.
3
Apartments, which Next Block planned to demolish in order to redevelop the
property. Next Block retained an affiliate of HRI, HRC-MJR Development, LLC
(“HRC-MJR”), to provide development management services for the property.
HRC-MJR assigned its employee, Scott Shipp, who was also an employee of HRI,
to be the manager for the project.
A.
Oncor’s Involvement with the Project
Oncor (also referred to as TXU Electric Delivery Company in the testimony
and trial exhibits) owned electricity transformers that stood on an electrical utility
easement on the property, and it provided electric service to the apartments located
on the property. Oncor used sets of transformers housed on concrete pads—one
set for each apartment complex—to convert higher-voltage transmission line
electricity to lower-voltage residential line electricity. Two of these concrete pads
were located in front of the former Windfall Apartments. The pads, designated as
Pads A and B, each housed a set of transformers. On each concrete pad, three
opaque metal enclosures, or “boxes,” stood in a row: the first and third enclosures
housed and entirely enclosed a transformer, and the middle enclosure, known as
the secondary enclosure, housed and entirely enclosed equipment that routed the
lower-voltage electricity from the transformers into an underground line that
headed toward the individual apartment electric meters. Cables carrying electricity
4
from the power lines to the transformers were connected to the transformers inside
the metal boxes.
Each metal box had an exterior door and an interior door to the cylindrical
transformer itself, each secured with locks. Standard safety warnings were posted
on the metal boxes. On the exterior door to each box, 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 door to the transformer, 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 employees carried keys to open the locks to
the metal boxes and to the transformer boxes inside them.
5
B.
Oncor’s Responsibilities With Respect to the Demolition Project
In March 2007, Next Block and Oncor entered into a series of Discretionary
Service Agreements (“DSAs”) in which Oncor charged Next Block a “facilities
relocation/removal charge” for the “partial removal of dist[ribution] Services to
apt. properties.” The agreements terminated upon “completion of removal.” The
agreement identified Shipp, the project manager for HRI, as the Next Block
company customer representative and required customer notification to him in care
of HRC-MJR.
Under these DSAs, Oncor undertook the “partial removal of
dist[ribution] Services to apt. properties” in exchange for Next Block’s payment of
a “facilities relocation/removal charge.” The record indicates that Shipp had paid
for all of the removals before June 2007.
The first stage of the property redevelopment project required asbestos
abatement followed by the demolition of the old apartment buildings and removal
of all improvements, including utilities. Basic hired AAA, Murillo’s employer, to
demolish one part of the project—the part associated with the Windfall
Apartments. The demolition contractor also had salvage rights to any valuable
materials found within the scope of the demolition work. As the apartments were
very old, many had valuable copper plumbing and wiring within them. Likewise,
the cables that distributed electricity to the transformers at each complex contained
salvageable metal.
6
Next Block provided demolition plans and specifications to Basic. Pursuant
to those plans, Basic was responsible for removing the utilities associated with the
apartment buildings, including electricity and gas, except for those noted to
remain. Shipp contacted Oncor regarding the electrical disconnection work. He
testified that the contractor, Basic, had salvage rights to any copper in the cables
that remained on the property after the metal transformer boxes had been removed.
Shipp also testified that he told all contractors at the site that the Oncor
transformers located on the property and any other Oncor facilities were Oncor’s
property and were to be left alone and treated as energized. Shipp testified that he
told the contractors that the transformers were not within the scope of the
demolition work and that no one but Oncor had the right to go into the transformer
boxes. In particular, Shipp testified that he had that conversation with Leo Gomez,
AAA’s owner and worksite supervisor.2 Basic and AAA cleared the land for five
of the nine apartment complexes scheduled to be demolished.
The Windfall Apartments was the last complex to be cleared. On April 19,
2007, Shipp e-mailed Oncor and asked that it close all of the electricity accounts at
the Windfall Apartments “due to demolition of these apartments” and “remove all
meters and service from the property.” The request listed multiple individual
2
Gomez was not available to testify, and Murillo testified that he had been killed
before the trial began.
7
apartment units. The next day, on April 20, Oncor e-mailed Shipp, stating that it
would “complete the request” upon Shipp’s provision of additional information.
Oncor’s work records showed that its crews performed electrical relocation
and transformer removal work throughout the multiple apartment complexes from
April through July 2007.
However, although the apartments were now
unoccupied, the construction workers still needed electric power to operate their
equipment during the asbestos abatement. Thus, also on April 20, Shipp requested
that Oncor install a “temporary pole set” for the Windfall Apartments for
temporary electricity for the work crews. An Oncor work crew led by Keith
Albanese made the connection on April 24, reconnecting a previously de-energized
utility pole.
On May 8, one of the transformers on Pad A malfunctioned due to a blown
electricity meter. Oncor sent a crew to the scene and de-energized the transformers
on Pad A. The transformers on Pad B remained energized. The six casing boxes
in the utility easement at the Windfall Apartments were all connected to the same
utility pole.
The contractors completed the asbestos abatement work in early June 2007,
and, on June 7, 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.” TXU responded on June 11: “Thank
8
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.”
Oncor work records dated June 12 indicate that on that day Oncor read the
temporary meters, closed service on them, de-energized the utility pole, and
removed the meters from the utility poles. But Oncor did not de-energize the cable
to one of the transformers on Pad B. It remained energized. Nor did Oncor
identify and produce for deposition or trial the employee who de-energized the
utility pole on June 12. It claimed that it could not find him. Oncor did not tell
anyone that it had de-energized only one of the two live cables on the last utility
pole.
Murillo testified that Gomez, the owner of AAA and his supervisor,
instructed his crew to salvage electric cables while they demolished the apartment
buildings. Murillo confirmed with Gomez that there was no electricity throughout
the project. No one on the AAA crew used a voltage tester or rubber gloves when
working inside a transformer box.
During the month of July, on Gomez’s
instruction, Murillo disconnected cables running to the transformer boxes without
incident.
Murillo testified that before he and his co-workers arrived at an area the
transformers inside the metal casing boxes were de-energized, but the electricity
9
cables still required removal and were bolted onto the metal casing boxes. During
the demolition, Murillo noticed Oncor employees in the demolition area as the
AAA crew did its work around the apartment complex. He stated that Oncor
employees were at the site every day. The Oncor employees never spoke to the
AAA crew. He stated that, at each site, Oncor waited for Murillo and his crew to
salvage the de-energized copper cables from the metal casing boxes before Oncor
lifted the metal boxes off the ground and hauled them off-site. Murillo then used a
wrench to unbolt the cable for salvage and removal. According to Murillo’s
testimony, Oncor did not salvage any de-energized copper cables itself.
On the day before the accident, Murillo and his co-workers removed the
cables from the three boxes on Pad A. On the day of the accident, July 25, Murillo
noticed Oncor trucks parked on the street outside the construction fence about 500
feet away, but no Oncor employees were present at the work site. Only AAA
employees were present. In the morning, Murillo and other members of the AAA
crew removed the cables from two of the three metal boxes on Pad B without
incident. The crew returned after lunch to remove the cables from the last of the
Pad B boxes. Murillo testified that, like other transformer boxes from which AAA
had salvaged copper cable, the exterior and interior cabinet doors on the boxes on
Pad B were unlocked and open. Murillo reached inside the left metal box on Pad
B, using work gloves and holding a wrench, to disconnect the copper cable
10
attached to the transformer. The transformer was energized. Murillo suffered a
severe electrical injury.
After the accident, an Oncor representative arrived at the scene.
The
representative testified that he discovered four Oncor company locks cut open,
lying on the ground, in front of Pad B where Murillo’s injury occurred. Neither
Murillo nor Oncor presented evidence as to who had cut off the locks. However,
Murillo testified that the locks had been cut off a month earlier when he observed
the boxes as police officers were arresting a person in front of them. And Oncor
employee Albanese testified that although he did not remember removing the
temporary pole or de-energizing the utility pole that he had previously re-energized
to provide temporary power to the site, he and other Oncor workers would cut
locks with bolt cutters “only if [he had] to” because he did not have a working key
or if he had to remove “personal locks.”
Oncor’s maintenance and construction supervisor for the project, James
Booker, testified that, prior to the day of the incident, no other Oncor crews were
ever at the site of the accident and that no Oncor crew de-energized anything prior
to the accident. He also testified that there was only one cable connection to the
utility pole. However, he was not aware that Oncor employee Albanese had deenergized and re-energized the utility pole about one month before the accident; he
was not aware that Oncor’s records showed that the boxes on Pad A and Pad B
11
should have been closed for demolition purposes; and he was not aware that two
cables had to be disconnected from the utility pole.
Larry Davis, another Oncor supervisor, testified that the utility pole at the
site of the accident had two cables that had to be de-energized, and he stated that,
although Booker might not have been aware of that fact, all Oncor work crews had
access to the plans that would show the number and types of cables involved in any
service call.
Jason Hagmeier, an Oncor employee, testified that he worked with Shipp on
removing the transformers from the work site. Shipp would contact him and tell
him which apartment buildings were slated for demolition. Hagmeier would then
check Oncor’s records regarding which transformers were involved for those
buildings and “design a sketch to remove them.” The removal plans were then
passed on to an Oncor work crew to complete the removal. In return, Shipp made
two payments to Oncor for the removal of the transformers.
Hagmeier also testified that, although he was not involved in the physical
removal of the transformers from these particular apartment buildings, he knew
Oncor’s standard procedure for removing the transformers. He testified that the
same crew would de-energize the cables, remove them from the boxes, and then
remove the metal boxes. Thus, the power would be de-energized and the boxes
removed on the same day.
Hagmeier testified that the customer owned the
12
“service wire” that ran from the second box to the building, but all wires in the first
and third boxes were owned and maintained by Oncor. He stated that the same
crew that removed the transformer would pull whatever copper it could from the
job site because part of the crew’s job “was to salvage our copper that was owned
by Oncor out of the transformers.”
Hagmeier and other witnesses testified, however, that Oncor’s standard
procedure of same-day de-energizing of the cables, salvage of the copper, and
removal of the transformer boxes was not followed on this demolition project.
Shipp and Hagmeier both testified that there was no particular time frame during
which Oncor was supposed to remove the transformers after being informed by
Shipp that they were ready for removal. Shipp testified that “there was no time
frame provided by Oncor” and that Oncor “provide[s] these type of services when
[it] can get to them.” Hagmeier testified that the removal of the transformers in
this case was done pursuant to a DSA that did not provide a time frame for the
removal. Hagmeier stated that he would inform Booker when a site was ready for
a crew to remove the transformer, and Booker would schedule the crew, usually
within six to seven weeks, depending on the existence of other, more urgent
maintenance, weather, and other factors.
Hagmeier testified that he visited the pad site where Murillo was injured
after the accident occurred.
He took a photograph of the transformer boxes
13
because “the cables were removed and cut off,” demonstrating to him that there
had been “vandalism or theft of some sort.” He also noticed that the locks around
the accident site had been cut and were lying on the ground. Hagmeier testified
that on other occasions when he met with Shipp at the job site he noticed that the
locks in another part of the complex were in place. He testified that the work crew
has keys for the locks and that “when they go out there to work the job site, they
unlock the locks themselves.”
C.
Course of Proceedings
Murillo sued Oncor, together with the developer, HRI, the project manager,
Basic, and the other contractors at the site. Gomez d/b/a AAA was named as a
responsible third party. With respect to Oncor, Murillo alleged that Oncor had
negligently failed to de-energize the transformer on Pad B on June 11, when it
disconnected the temporary service to the Windfall Apartments, as it had done at
an earlier point with Pad A, so that the electricity continued to run to that
transformer during the demolition work. Oncor conceded at trial that it had not deenergized the Pad B transformer. It also adduced evidence that it had previously
de-energized Pad A because a wiring problem had caused a temporary meter
associated with Pad A to burn up.
The case was submitted to the jury on a broad form negligence theory with
respect to all defendants. The jury charge defined the specific term “negligence”
14
as “failure to use ordinary care”; it defined “proximate cause” as “a substantial
factor that brings about an event and without which the event would not have
occurred”; and it defined “foreseeable” as meaning that “a person using ordinary
care would have reasonably anticipated that his acts or failure to act would have
caused the event or some similar event.” Oncor objected to the charge, which was
submitted by Basic, on the ground that the charge should have included
instructions for finding liability on a premises defect theory, and the trial court
overruled the objection.
In Jury Question No. 1, the jury found that Basic and Gomez d/b/a AAA
“engaged in a joint enterprise.” In Jury Question No. 2, the jury found that Next
Block, HRC-MJR, HRI, and another defendant engaged in a joint enterprise.
Question No. 3 asked the jury whether any of the listed defendants,
including Oncor, “exercise[d] or retain[ed] some control over the manner in which
Marco Murillo’s work in the transformer was performed, other than the right to
order the work to start or stop or to inspect progress or receive reports.” The jury
answered “yes” with respect to Oncor, Basic, and HRI, and “no” with respect to
the remaining listed defendants, who did not include Gomez. Question No. 4
asked, “Did the negligence, if any, of the persons named below proximately cause
the injury in question?” The jury answered “yes” with respect to Oncor, HRI,
15
Basic, and Gomez, and “no” with respect to the three other defendants and Murillo
himself.
In response to Question No. 5, the jury found Oncor to be 60% responsible
for having “caused or contributed to cause the injury in [Question No.] 4.” In
response to Question No. 6, it assessed total damages of $7,770,000, including
$2,000,000 for “[d]isfigurement sustained in the past” and $1,000,000 for future
disfigurement, $2,500,000 for past pain and mental anguish, $500,000 for future
pain and mental anguish, $1,000,000 for past physical impairment, $500,000 for
future physical impairment, $200,000 for future medical care expenses, and
$70,000 for past lost earning capacity. It awarded “0” damages to Murillo’s
spouse in response to Question No. 7, concerning loss of household services and
loss of consortium; and it failed to answer Questions No. 8 and 9 concerning,
respectively, an award of damages for gross negligence and exemplary damages.
The trial court entered judgment on the verdict.
Oncor, Basic, and HRI all
appealed. Subsequently, Basic and HRI settled with Murillo. Only Oncor’s appeal
remains pending.
Review of the Jury’s Finding of Negligence
In its first issue, Oncor contends that Murillo’s only viable claim against it is
one of premises defect, not of general negligence, which was the only claim
submitted to the jury. It argues that because Murillo did not seek to submit jury
16
questions and instructions on a premises defect claim, he waived his only viable
claim.
Therefore, the judgment against it should be reversed and judgment
rendered in its favor.
In its second issue, Oncor argues that, even if Murillo did have a viable
negligence claim against it, the evidence was legally and factually insufficient to
support the jury’s verdict. It argues that the liability of an owner or occupier for
general negligence on a premises liability theory requires proof that the defendant
was in control of the land and that the plaintiff was injured by the
contemporaneous negligence of that defendant and that, here, the record contains
no evidence that Oncor was engaged in any negligent activity contemporaneous
with Murillo’s presence at the jobsite and no evidence that it controlled the details
of Murillo’s work. Without such evidence, it argues, it could not be liable for
engaging in a negligent activity that caused Murillo’s injuries.
Oncor contends that, at most, it exercised control over the premises where
Murillo was injured and that Murillo could not prove its liability because Oncor
had adequately warned Gomez and Murillo that the transformers were energized
and dangerous, even if the metal box was open, and Oncor did not have actual or
constructive knowledge that the locks had been cut and the doors to the metal box
opened. Oncor also contends that, even assuming that it had a duty to keep the
premises safe and to warn about the danger of the electricity to anyone who opened
17
the metal box, Murillo was a trespasser, as neither he nor his employer had
permission to enter the Oncor transformer boxes or to remove Oncor’s copper
cables.
In its third issue, Oncor argues that Murillo’s exclusive remedy against it
was a claim under Civil Practice and Remedies Code Chapter 95 for damages
caused by the negligence of a property owner arising from the failure to provide a
safe workplace and that the trial court did not submit the proper legal duty with
respect to it in the jury charge—liability on a premises-defect theory. It further
contends that the trial court did not submit the jury instructions required on the
elements of the theory set out in Chapter 95, requiring that the premises-liability
defendant must have been in control of the premises, must have had knowledge of
the dangerous condition that injured the plaintiff, and must have failed either to
warn of the dangerous condition or to make the premises safe. It argues that, as a
premises-defect defendant, it was entitled to the standard premises-defect jury
instructions defining its duty to Murillo in a way that would have allowed the jury
to consider its warnings to those who came near its energized transformers and the
reasonable efforts it made as a premises owner to keep its premises safe. It
contends that Murillo waived his premises-defect claim by not objecting to the
failure to include instructions on the elements of a premises-defect claim in the
18
charge and by not securing findings on the essential elements of premises-defect
liability.
We first address Oncor’s arguments relating to the nature of the duty that it
owed to Murillo. We will next address the issue of the sufficiency of the evidence
supporting the jury’s finding that Oncor’s negligence was a proximate cause of
Murillo’s injury. Finally, we will address Oncor’s remaining arguments included
in its first three issues, regarding the necessity of a charge on alternative theories of
liability, such as a premises-defect theory.
A.
Oncor’s Duty to Murillo
Oncor argues, in parts of its first and third issues, that it owed Murillo only
the duty that a property owner owes to a trespasser. It further argues, in part of its
second issue, that the record contains no evidence Oncor was engaged in any
activity that harmed Murillo. Whether a defendant owes the plaintiff a duty, and
the nature of the duty owed, are questions of law for the court. See Nabors
Drilling, U.S.A., Inc. v. Escoto, 288 S.W.3d 401, 404 (Tex. 2009).
The Texas Supreme Court has consistently recognized that negligent-activity
claims and premises-defect claims involve two independent theories of recovery
that fall within the scope of negligence. See Gen. Elec. Co. v. Moritz, 257 S.W.3d
211, 214–15 (Tex. 2008). It has stated that although “[t]he lines between negligent
activity and premises liability are sometimes unclear,” there is a recognized
19
distinction between the two theories.
Del Lago Partners, Inc. v. Smith, 307
S.W.3d 762, 776 (Tex. 2010). “Recovery on 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.” Timberwalk Apartments,
Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998); see also Del Lago, 307
S.W.3d at 776 (“[N]egligent 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.”). Thus, negligence in the context of a
negligent activity claim means simply doing or failing to do what a person of
ordinary prudence in the same or similar circumstances would have done or not
done. Timberwalk, 972 S.W.2d at 753. Unlike a negligent activity claim, “a
premises defect claim is based on the property itself being unsafe.” State v.
Shumake, 199 S.W.3d 279, 284 (Tex. 2006); see also Del Lago, 307 S.W.3d at
787–88 (holding that negligence in premises defect context generally means failure
to use ordinary care to reduce or eliminate unreasonable risk of harm created by
premises condition about which owner or occupier of land is aware).
We disagree with Oncor’s claims that this is exclusively a premises defect
case and that Oncor’s only duty to persons on the demolition site was the duty of
ordinary care of a utilities easement owner in control of electricity distribution to
20
its customer. Oncor’s argument overlooks the unusual and unique circumstances
of this case. Oncor’s involvement with the demolition project went beyond merely
distributing electricity to its customer, Next Block.
Oncor was aware of the
demolition activity occurring at the work site and was itself involved in the
demolition by providing temporary power and removing portions of its electric
utility equipment on the site. It was in regular communication with Shipp, the
project manager. Oncor not only generally controlled the safe distribution of
electricity to its customer but also specifically controlled the disconnection of
electricity and removal of meters and transformer boxes. Correspondingly, it was
the only party that could have controlled the provision of electricity and the
removal of its services from the site in a manner that was safe for the demolition
workers who would otherwise come in contact with live electricity during the
demolition process. It is undisputed that Oncor controlled the transformer itself
and the flow of electricity to it.
Oncor also controlled the disconnection of
electricity from its transformers so that any workers involved in the demolition,
salvage, and utility removal process could proceed safely.
Oncor argues, however, that its failure to turn off an existing energized
electrical transformer was not contemporaneous with Murillo’s injury on July 25
and is therefore insufficient to create liability for general negligence. Without
evidence of contemporaneous conduct, it contends, Murillo’s claim against it is “a
21
nonfeasance theory, based on [its] failure to take measures to make the property
safe,” and not an activity “based on affirmative, contemporaneous conduct by
[Oncor] that caused the injury,” and is therefore a premises-defect claim. See Del
Lago, 307 S.W.3d at 776.
Oncor further argues that its negligence merely
furnished a condition that made Murillo’s injury possible, so that there was no
cause in fact, even on a premises-defect theory. See W. Invs., Inc. v. Urena, 162
S.W.3d 547, 551 (Tex. 2005) (discussing causation in negligence context). It
contends that nothing rises to a general duty on the part of a utility easement
owner/occupier to recognize and prevent electrical contact during a construction
project. In addition, it argues that because it posted warning signs on both the
metal box and the transformer box inside it, showing the danger of the electricity to
anyone who touched the live cable, it cannot be held liable for the dangerous
condition that caused Murillo’s injury. As support for its arguments, Oncor cites
us to, inter alia, Clayton W. Williams, Jr., Inc. v. Olivo, Keetch v. Kroger Co., and
Kroger Co. v. Persley. Likewise, the dissent, accepting Oncor’s argument, cites us
to Houston Lighting & Power v. Brooks.
We find Oncor’s argument to be
misdirected and the cases it cites inapplicable.
We conclude that this case is most similar to Texas Department of
Transportation v. Ramming, a general negligence case.
In Ramming, a car
accident occurred at an intersection where the defendant’s employee had turned off
22
a traffic signal for maintenance and testing activities. See 861 S.W.2d 460, 465–66
(Tex. App.—Houston [14th Dist.] 1993, writ denied). The defendant, the Texas
Department of Transportation, was found negligent for its act of turning off the
traffic signals at an intersection as its “test/maintenance activity was ongoing at the
time of the accident,” proximately causing the plaintiff to be injured. Id. at 465.
Similarly, here, Oncor failed to turn off electricity flowing to one of two cables on
the utility pole servicing Pad B when it sent out a work crew to disconnect the
remaining electricity flowing to the worksite in anticipation of ongoing demolition,
salvage, and clearing operations. It thus negligently left electricity flowing through
a live cable to one of the transformers scheduled to be removed during the
demolition, salvage, and utility removal process in which Murillo, AAA, and
Oncor’s own workers were involved. Its negligent activity proximately caused
Murillo to be injured when, during the course of that ongoing process, he entered
the transformer box to disconnect the still-energized cable.
Just as, here, the trial court refused to submit premises-defect instructions
with respect to Oncor along with its broad form negligence question, the Ramming
court affirmed the trial court’s refusal to submit a requested premises defect
question to the jury. The Ramming court reasoned that a premises defect theory
applies “when a traffic signal is functioning properly but then fails due to
component failure, act of God, third party interference, or the non23
contemporaneous act of [the property owner in control],” which was not what had
happened in the case. Id. Similarly, here, where Murillo was not injured because a
condition occurred as a result of equipment failure, act of God, third party
interference, or the non-contemporaneous act of the easement owner—but by the
negligent acts of several defendants, including Oncor—the trial court refused to
submit this case to the jury on a premises-defect theory with respect to Oncor.
Like the negligent activity in Ramming, which consisted of the defendant’s
shutting off the light at the intersection where the plaintiff was injured while it
performed maintenance and testing activities, here, the negligent activity consisted
of Oncor’s failing to disconnect one of the cables it had been charged with
disconnecting and, instead, leaving live electricity flowing through that cable to the
demolition site during the ongoing demolition, salvage, and utility removal
process.
The Ramming court distinguished Keetch, relied upon here by Oncor. In
Keetch, the supreme court had held there was no contemporaneous activity and
that, therefore, the case should have been submitted on a premises defect theory.
Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992). The Ramming court
noted that Keetch involved a fall from water on the floor that occurred thirty
minutes after water was sprayed on the plants in the store. 861 S.W.2d at 465
(citing Keetch, 845 S.W.2d at 264). It observed that, in contradistinction to its own
24
case, “[t]here was no ongoing activity when Keetch was injured,” and, therefore,
“[t]he trial court properly did not submit a negligent activity theory of liability on
these facts,” i.e., where the negligent activity had ended well before the slip. Id.
(quoting Keetch, 845 S.W.2d at 264). The court pointed out, “In contrast, [the]
test/maintenance activity [on the traffic light] was ongoing at the time of the
accident. There was no time gap, much less a 30-minute gap, between the alleged
negligent activity and the accident.” Id. (Emphasis added.).
Here, as in Ramming, the plaintiff was injured by an ongoing activity of the
defendant. Oncor negligently disconnected only one of the two live power cables
attached to the single utility pole associated with Pad B, resulting in Oncor’s
ongoing activity of providing live electricity to one of the two remaining pads on
the demolition site. Oncor breached its duty of care to provide electricity to the
site in a safe manner, placing the demolition, salvage, and utility removal workmen
on the site in danger from Oncor’s negligently performed ongoing activity of
providing electricity to the site.
We disagree with Oncor’s and the dissent’s contention that the premises
defect cases of Clayton W. Williams, Jr., Inc. v. Olivo, Houston Lighting & Power
v. Brooks, and Kroger Co. v. Persley present situations similar to this case. All
involved one-time, non-ongoing events that created a dangerous condition not
attributable to an ongoing activity of the premises owner.
25
In Olivo, an independent contractor suffered an injury after falling from a
drill pipe rack onto drill thread protectors left on the ground and sued the general
contractor on a general negligence theory. 952 S.W.2d 523, 526–27 (Tex. 1997).
The supreme court observed that the case was “not a negligent activity case
because Olivo alleges that he was injured by thread protectors previously left on
the ground, not as a contemporaneous result of someone’s negligence.” Id. at 527.
It held that the presence of the drill thread protectors that injured Olivo implicated
“a premises defect that the independent contractor [Olivo’s employer] allegedly
created rather than a negligent activity [of the defendant general contractor].” Id.
at 528 (emphasis added).
The supreme court opined that the general contractor could have been found
liable to Olivo, the employee of the independent contractor, if it had retained the
right to control or exercised control and was negligent “in exercising or failing to
exercise control over the part of the independent contractor’s work that created the
dangerous condition.” Id. at 528. However, that was not what happened in that
case.
By contrast, here, it is exactly what happened.
Moreover, the simple
negligence question submitted to the jury in Olivo asked only whether the general
contractor’s on-site representative was negligent. See id. at 529. The trial court in
Olivo did not submit a jury question on the general contractor’s control of the
premises, or an instruction on the premises defect elements, or a negligence
26
question regarding the general contractor itself, so there were no jury findings
against the general contractor on any of those issues. Id. The supreme court held
that, because Olivo “did not secure proper jury findings on [his] only viable cause
of action, premises defect, [he] waived that claim” and was not entitled to any
relief from the general contractor or its agent. Id.
The circumstances present in Olivo and the legal implications of that case
are thus entirely unlike those in this case. Olivo’s claim was clearly a claim that he
was injured by a condition of the premises: drill thread protectors previously left
on the ground by his own employer, an independent contractor, that he contended
the general contractor should have noticed and either removed or warned about.
Id. at 526–27. Here, by contrast, Murillo did not claim that Oncor failed to use the
ordinary care of a utilities easement owner to keep a utilities easement safe or that
it failed to warn that its transformers were normally charged and that charged
transformers are dangerous, as would be the case for a premises defect claim.
Rather, Murillo claimed, and the evidence showed, that his injury was proximately
caused by Oncor’s own failure to exercise ordinary care in its provision of
electricity to the demolition site when, through its own negligent failure to properly
de-energize both cables from the utility pole in preparation for the demolition
activity, it continued to distribute electricity to Pad B during ongoing demolition,
salvage, and utility clearance operations with no indication that the single
27
transformer that injured Murillo remained energized after all of the other
transformers had been disconnected so that demolition could proceed.
The dissent in this case agrees with Oncor, however, that this is a premises
defect case, and it cites to Houston Lighting & Power Co. v. Brooks, 336 S.W.2d
603 (Tex. 1960), another premises defect case, as support for its argument. In
Brooks, the defendant power company’s high-voltage power lines complied with
city ordinances and had a clearance of more than eight feet from the top and side of
the hospital building where a construction workman, smoothing wet concrete on
the unfinished third floor of an annex, touched the power lines with the aluminum
handle of his broom and was injured. Id. at 604–05. Although there was some
evidence that the power company knew construction was occurring on the site, no
request had been made to the company to de-energize or otherwise protect its
power lines prior to the accident, and the company did not know that concrete was
going to be poured and smoothed on the day in question or that a fifteen or sixteen
foot aluminum-handled mop would be used. Id.
The supreme court held that there was no evidence that the power company
could have reasonably foreseen that a workman on the building would make
contact with its lines and be injured; therefore, its negligence was not established.
Id. at 605–06. Nor was there any evidence that the power company had actual
knowledge of probable danger to the injured workman. Id. Moreover, the court
28
specifically clarified that whatever duty the power company owed Brooks was “as
a member of the public and not as an employee or as an invitee” of the power
company. Id. at 605. It expressly distinguished its holding from other cases
“where the injured party was either an employee of the defendant or was doing
some work at the invitation of and beneficial to the defendant. . . .” Id. at 607.
Here, by contrast, Oncor removed the electricity distribution services to the
demolition site, including Pad B, so that the type of demolition and salvage work
Murillo and others were doing—disconnecting the de-energized cables from the
transformers so that Oncor could subsequently remove the transformer boxes—
could be safely performed. However, Oncor only disconnected one of the two
cables to the area where Murillo was injured, resulting in one of the two
transformers on Pad B remaining powered during the demolition process in which
Murillo was injured.
Kroger Co. v. Persley, likewise, is inapplicable. Like Olivo and Brooks, it
too is a premises liability case, rather than a general negligence case. In Persley,
the plaintiff slipped on water near a freezer display in the defendant grocery store.
261 S.W.3d 316, 318 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
The
evidence showed that the freezer’s stocker had left the area at least fifteen minutes
before, and the plaintiff admitted she did not see the stocker near the display when
she slipped. Id. at 320–21. Thus, there was no evidence of an ongoing activity by
29
the store’s employees; rather, there was evidence of a one-time spill. And there
was no evidence that the store knew about the spill and yet failed to warn about it
or take steps to wipe it up. So there was no premises defect liability. Id.
Here, in contrast to all of the premises liability cases cited by Oncor and the
dissent, Oncor engaged in the ongoing activity of providing electricity to the
demolition site, and Murillo alleged that Oncor performed that activity in a
negligent manner and produced evidence to support his allegations. The ongoing
flow of electricity to Pad B was entirely within Oncor’s own control, and Oncor
breached its duty to use ordinary care while engaged in that activity.
Oncor thus performed an activity on the property—controlling the
distribution and cessation of distribution of electricity to the site so that demolition
activities and the removal of its own transformers could safely proceed—and it had
a duty to use ordinary care in the performance of that activity so that its activity
would not proximately cause a foreseeable injury to workers on the site. See
Moritz, 257 S.W.3d at 214 (holding that owner performing activity on property has
duty to use ordinary care so that its activity does not proximately cause foreseeable
injury); West v. SMG, 318 S.W.3d 430, 438 (Tex. App.—Houston [1st Dist.] 2010,
no pet.) (holding same). We conclude that Oncor owed this duty to all demolition,
salvage, and utility removal workers on the site quite apart from the duty it owed
as the owner of the electricity easement on the property. It is irrelevant, for
30
purposes of this appeal, that Oncor might also have owed Murillo the duty of a
property owner to use ordinary care to reduce or eliminate an unreasonable risk of
harm created by some condition on the premises. Premises defect and negligent
activity are two separate theories. See Del Lago, 305 S.W.3d at 776.
Murillo’s pleadings and the evidence presented at trial supported a
conclusion that Murillo stated a negligent activity claim—i.e., Oncor’s negligence
in providing electricity to the demolition site proximately caused his injury. Thus,
we conclude that Oncor owed a duty to distribute and cease to distribute electricity
to the demolition site in a safe manner. See Timberwalk, 972 S.W.2d at 753
(negligence under negligent activity theory means doing or failing to do what a
person of ordinary prudence in same or similar circumstances would have done);
Moritz, 257 S.W.3d at 214; West, 318 S.W.3d at 438. The question, therefore, is
whether Oncor breached this duty through its own negligent activity on the site.
B.
Sufficiency of the Evidence Supporting the Jury’s Finding of Negligence
Oncor argues, in its second issue, that the evidence was legally and factually
insufficient to support its liability on a general negligence theory.
1.
Standard of Review
In reviewing the legal sufficiency of the evidence, we must view the
evidence in the light most favorable to the verdict, crediting favorable evidence if
reasonable jurors could and disregarding contrary evidence unless reasonable
31
jurors could not. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005);
Tiller v. McLure, 121 S.W.3d 709, 713 (Tex. 2003) (holding that, in reviewing “no
evidence” point, court views evidence in light that tends to support finding of
disputed fact and disregards all evidence and inferences to contrary). To sustain a
challenge to the legal sufficiency of the evidence to support a jury finding, we must
find that: (1) there is a complete lack of evidence of a vital fact; (2) the court is
barred by rules of evidence or law from giving weight to the only evidence offered
to prove a vital fact; (3) there is no more than a mere scintilla of evidence to prove
a vital fact; or (4) the evidence conclusively established the opposite of a vital fact.
Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 903 (Tex. 2004).
In reviewing a challenge to the factual sufficiency of the evidence, we “must
consider and weigh all the evidence and should set aside the judgment only if it is
so contrary to the overwhelming weight of the evidence as to be clearly wrong and
unjust.” Arias v. Brookstone, L.P., 265 S.W.3d 459, 468 (Tex. App.—Houston
[1st Dist.] 2007, pet. denied) (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.
1986)). The fact finder is the sole judge of witnesses’ credibility; it may choose to
believe one witness over another, and a reviewing court cannot impose its own
opinion to the contrary. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468.
Because it is the factfinder’s province to resolve conflicting evidence, we must
assume that it resolved all conflicts in accordance with the verdict if reasonable
32
persons could do so. Wilson, 168 S.W.3d at 819; Arias, 265 S.W.3d at 468. When
an appellant attacks the factual sufficiency of an adverse finding on an issue on
which it did not have the burden of proof, the appellant must demonstrate that the
finding is so contrary to the overwhelming weight of the evidence as to be clearly
wrong and manifestly unjust. See Cain, 709 S.W.2d at 176.
2.
Analysis
To establish his right to recover from Oncor, Murillo had to prove the
existence of a legal duty owed by Oncor to him, a breach of that duty, and damages
proximately resulting from the breach. See Urena, 162 S.W.3d at 550; West, 318
S.W.3d at 437–38. We have already concluded that Murillo’s pleadings and the
evidence presented at trial supported a conclusion that Oncor engaged in the
activity of providing electricity to a demolition site and that it owed a duty to do so
in a safe manner.
The jury found that Oncor’s negligence proximately caused Murillo’s
injuries, and we conclude that legally and factually sufficient evidence supports
this finding. It is undisputed that Oncor knew of the demolition work occurring on
the property and that it participated in the demolition by removing the distribution
services from the apartments, which necessarily included disconnecting the
electricity to the demolition site as the work progressed so that the transformer
boxes could be disconnected from the electric cables, the copper in the cables
33
could be salvaged, and the boxes could be cleared from the site. Murillo testified
that, on numerous previous occasions during the demolition process, Oncor
employees had waited for Murillo and the AAA crew to unbolt the cables from the
transformers before they lifted and hauled away its boxes. Murillo testified that
when he reached each transformer box, the locks were already removed and he did
not remove the locks himself.
It is also undisputed that, on June 12, over a month before Murillo’s injury,
Oncor read the temporary meters, removed them, and closed the temporary
electrical account. The evidence established that, on June 12, although Oncor deenergized the cable to Pad A, it failed to de-energize the cable to Pad B that was
located on the same utility pole. Thus, Oncor continued to supply electricity to
Pad B while AAA conducted its demolition and salvage activities and while Oncor
conducted its own utility removal activities. Booker, Oncor’s maintenance and
construction supervisor for the project, testified that he was unaware that Oncor
employees had de-energized and re-energized the utility pole about one month
before the accident; he was unaware that Oncor’s records showed that the boxes on
Pad A and Pad B should have been closed for demolition purposes; and he was
unaware that two cables—not one—had to be disconnected from the utility pole to
completely de-energize the transformers on Pad B. Hagmeier and Davis, other
Oncor employees, testified regarding the proper procedure for de-energizing and
34
removing the transformers from the work site. Hagmeier and other witnesses
testified that Oncor’s standard procedure was not followed in this case.
Oncor relied on the testimony of some of its employees that Oncor never
represented to any of the work crews that the entire pad was de-energized and that
Oncor did not commit to a particular time frame for completing the removal of the
transformers. However, this evidence is not so contrary to the weight of the
evidence as to make the jury’s verdict clearly wrong and unjust. See Arias, 265
S.W.3d at 468. The jury had ample evidence that it could have relied upon in
determining that Oncor’s activity on the site was performed in a negligent manner,
proximately causing Murillo’s injury. Murillo testified that he followed the same
practice that his crew had employed to safely remove cables from multiple other
transformers on the work site. He also testified that he observed Oncor employees
waiting for his crew to remove the cables before Oncor removed its transformer
boxes on previous occasions. Shipp had requested that Oncor de-energize the site
where Murillo was injured, and Oncor’s work records indicate that the crew sent
on June 12 read the temporary meters, closed service on them, de-energized the
utility pole, and removed the meters from the utility poles. However, after Murillo
was injured on July 25, it was obvious that Oncor did not de-energize one of the
cables to one of the transformers on Pad B. Oncor left it energized, and Murillo
was seriously injured when he proceeded with his demolition work. Oncor failed
35
to identify or produce for deposition or trial the employee who de-energized the
utility pole on June 12. It claimed it could not find him. Furthermore, it is
undisputed that the only warnings on the transformers were the boilerplate
warnings present on all transformers, which were insufficient to warn demolition
workers that the transformer they had expected to be de-energized was actually
still powered by live electricity.
We conclude that the evidence was legally and factually sufficient to support
the jury’s findings that Oncor retained some control over Murillo’s work because it
was the only party in a position to control the flow of electricity to the demolition
site. Oncor owed Murillo and any other workman involved in demolition, salvage,
and utility clearance operations on the demolition worksite at the Windfall
Apartments a duty to provide electricity to the worksite in a safe manner, and the
evidence is legally and factually sufficient that Oncor breached that duty by
providing electricity and related services in a negligent manner when it failed to
de-energize all of the cables from the utility pole. See Wilson, 168 S.W.3d at 822;
Arias, 265 S.W.3d at 468.
The jury found that Oncor’s negligence was the proximate cause of
Murillo’s injury. We conclude that this finding too was supported by legally and
factually sufficient evidence. See Wilson, 168 S.W.3d at 822; Arias, 265 S.W.3d at
468. “Proximate cause has two elements: cause in fact and foreseeability,” both of
36
which must be established by the evidence. See Urena, 162 S.W.3d at 551. “The
test for cause in fact is whether the act or omission was a substantial factor in
causing the injury without which the harm would not have occurred.” Id. If the
defendant’s negligence merely furnished a condition that made the injuries
possible, there can be no cause in fact. Id.
Murillo’s injury was clearly foreseeable under the circumstances of this
case. First, it is undisputed that the Oncor work crew did not disconnect the
electricity to one of the transformers on Pad B on June 12 when it went to the site
to disconnect all of the electricity to that area, including neighboring Pad A, so that
demolition of the Windfall Apartments could proceed. Thus, it was reasonable for
the jury to have inferred that electricity would continue to flow to the box, creating
a dangerous risk of electrocution for any worker who entered the box to disconnect
the electric cables so that the transformers could be removed from the site. There
was also sufficient evidence from which the jury reasonably could have concluded
that AAA’s crew would be present on the demolition site disconnecting the deenergized electric cables so that the transformer boxes could be removed, as well
as salvaging copper from the disconnected electric cables inside transformer boxes
from which the locks had been cut off, and that AAA’s workers would be entering
the boxes to disconnect the de-energized electric cables and salvage the copper
without wearing protective equipment prior to removal of the transformers from
37
the site. Thus, there was sufficient evidence from which the jury could reasonably
have concluded that the severe electrical injury Murillo suffered was foreseeable.
There was also sufficient evidence from which the jury could reasonably
have concluded that Oncor’s negligent failure to shut off the electricity to Pad B
when it went to the site for that purpose and its leaving electricity running to that
pad during the demolition, salvage, and utility removal process was a substantial
factor that brought about Murillo’s injuries and without which those injuries would
not have occurred. See id. (“The test for cause in fact is whether the act or
omission was a substantial factor in causing the injury without which the harm
would not have occurred.”). Thus, we conclude that Oncor’s negligence was a
proximate cause of Murillo’s injury.
We conclude that legally and factually sufficient evidence supports the
jury’s finding that Oncor’s negligence was the proximate cause of Murillo’s injury.
C.
Adequacy of the Trial Court’s Charge
In the remainder of its first, second, and third issues, Oncor argues that the
trial court erred in submitting the jury charge on a general negligence theory rather
than on a premises-defect theory of liability and that Murillo waived his claim
against Oncor by failing to submit instructions consistent with a premises-defect
theory. It therefore contends that judgment must be rendered in its favor.
38
1.
Standard of Review
The trial court has great discretion in submitting the jury charge in a
negligent activity/premises defect case. Ramming, 861 S.W.2d at 463. “This
discretion is subject to the requirement that the questions submitted must control
the disposition of the case, be raised by the pleadings and evidence, and properly
submit the disputed issues for the jury’s deliberation.” Id. Texas Rule of Civil
Procedure 277 mandates broad form submission “whenever feasible.” TEX. R. CIV.
P. 277; Keetch, 845 S.W.2d at 266.
If the plaintiff refuses to submit a theory of liability over the defendant’s
objection, so that no jury question is submitted on a controlling issue, the case may
be reversed and judgment rendered. See Ford Motor Co. v. Ledesma, 242 S.W.3d
32, 44 (Tex. 2007) (citing State Dep’t of Highways & Pub. Transp. v. Payne, 838
S.W.2d 235, 241 (Tex. 1992)). However, “if the plaintiff submits a jury question
on his claim that is merely ‘defective,’ as opposed to ‘immaterial,’ the appropriate
remedy is to remand for a new trial rather than to render judgment.” Id. Remand
is proper when a defective liability question is submitted. See Spencer v. Eagle
Star Ins. Co., 876 S.W.2d 154, 157 (Tex. 1994); see also Arthur Andersen & Co. v.
Perry Equip. Corp., 945 S.W.2d 812, 817 (Tex. 1997) (holding, where defective
damages questions was submitted but there was some evidence supporting proper
measure of damages, that remand rather than rendition was appropriate remedy).
39
Moreover, the supreme court has reversed and “remanded in the interest of justice
when [its] decisions have altered or clarified the way in which a claim should be
submitted to the jury.” Ledesma, 242 S.W.3d at 45.
2.
Analysis
We have already held that Oncor owed a duty to provide electricity to the
work site in a safe manner and that the jury’s finding that Oncor’s negligence
proximately caused Murillo’s injury was supported by legally and factually
sufficient evidence. Thus, we conclude that the trial court did not err in submitting
this case to the jury on a negligent activity theory.
The general negligence
question was appropriate and sufficient, and a premises-defect instruction was
neither necessary nor appropriate to establish Oncor’s liability to Murillo in this
case.3 See Ramming, 861 S.W.2d at 465 (“Where, as here, the alleged facts
support . . . an on-going activity [or] contemporaneous injury theory, then the case
need not be presented to the jury in premises liability terms. Rather, a general
negligence question is appropriate and sufficient.”).
A trial court has great
discretion in submitting the jury charge so long as the questions submitted control
the disposition of the case, are raised by the pleadings and evidence, and, where
3
Because we conclude that the trial court did not err in submitting the case to the
jury on a negligent activity theory, we need not address Oncor’s arguments
relating to a premises-defect theory, including its arguments regarding Murillo’s
status as licensee or trespasser or its own knowledge of the condition of the
premises.
40
disputed, are properly submitted for the jury’s deliberation. Id. at 463. Here, this
is no ground for finding that the trial court abused its discretion in submitting a
broad-form negligence question to the jury without including a premises-defect
instruction with respect to Oncor.
However, Oncor’s and the dissent’s argument on this issue merits further
response. Even if this case were properly characterized as a premises-defect case,
a contention we reject, and even if the trial court’s instructions were so defective
that they failed to produce the jury findings necessary to Murillo’s right to recover
damages against Oncor for premises defect liability, as Oncor urges, Murillo’s
claim still would not be waived and the proper remedy for the submission of the
defective instruction still would not be rendition of judgment in favor of Oncor.
The proper remedy in such circumstances would be remand for a new trial
against Oncor with the submission of a proper instruction on premises liability in
addition to a broad form negligence question, so long as there was some evidence
to support a finding on the elements of premises liability theory. See Ledesma, 242
S.W.3d at 44 (holding that, “if the plaintiff submits a jury question on his claim
that is merely ‘defective,’ as opposed to ‘immaterial,’ the appropriate remedy is to
remand for a new trial rather than to render judgment”); Spencer, 876 S.W.2d at
157 (holding that remand is proper when defective liability question is submitted);
see also Arthur Andersen, 945 S.W.2d at 817 (holding, where there was some
41
evidence supporting proper measure of damages, that remand rather than rendition
was appropriate remedy).
Oncor and the dissent rely again on Olivo as support for their contention that
Murillo waived his sole claim, that for premises liability, and thus rendition is
required. And, again, Olivo is unlike this case. In Olivo, the plaintiff failed to
request even a simple negligence question regarding the negligence of the
defendant general contractor or its control of the premises; instead, the only
negligence question submitted to the jury asked whether the general contractor’s
representative was negligent. 952 S.W.2d at 529. Here, by contrast, the trial court
submitted a question regarding Oncor’s control of the premises, together with a
proper broad form negligence question. These were the controlling issues with
respect to both general negligence and premises liability. All that was missing
from the charge, had the case been a premises liability case, was an instruction to
the jury on the common law elements of premises liability instructing the jury to
consider (1) Oncor’s “actual or constructive knowledge of some condition on the
premises” that (2) “posed an unreasonable risk of harm” to Murillo and
(3) Oncor’s failure to “exercise reasonable care to reduce or eliminate the risk” so
that (4) Murillos’s injuries were proximately caused by the failure to use such care.
See id. 528–29; Corbin v. Safeway Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983).
Therefore, any defect in the charge was just that—a defect in failing to include
42
additional instructions, not the failure to submit a controlling issue justifying
rendition, as had happened in Olivo.
See Ledesma, 242 S.W.3d at 44–45
(distinguishing between cases in which rendition is justified and cases in which
remand is appropriate). Moreover, even if we were to rule this case a premisesdefect case, it would be in the course of clarifying how such a claim should be
submitted—justifying remand in the interest of justice. See id. at 45.
Furthermore, even assuming that this case should have been submitted as a
premises-defect case, there was evidence as to each of the elements of premises
liability: (1) Oncor necessarily had actual or constructive knowledge of its
negligent performance of its duty of controlling the distribution of electricity to the
worksite during the demolition and utility removal process, and there is evidence
that it knew that the transformer boxes were open and that workmen, including
Murillo, were on the site removing the de-energized electric cables from the
transformers so that the boxes could be removed; (2) Oncor knew that the
condition of live electricity flowing to the worksite “posed an unreasonable risk of
harm” to demolition workers on the site, including Murillo; and yet (3) it failed to
secure the transformer boxes, to insist that its own workers remove the cables,
salvage the copper, and remove the transformer boxes using protective gear, or to
warn that the electricity might still be flowing to the site and must be checked; nor
did it, in any other way, “exercise reasonable care to reduce or eliminate the risk”
43
of electrocution, (4) with the foreseeable result that Murillo’s injuries were
proximately caused by Oncor’s failure to use such care.
Oncor’s only warnings that the transformers might be energized and
dangerous were the standard warnings on the transformer boxes, which were
inapplicable to warn persons working on the demolition site in the legitimate
expectation that Oncor had disconnected the utilities and that Oncor’s negligence
had created an ongoing danger to them of electrocution.
Oncor knew that
demolition and salvage operations had been ongoing at the site for two months at
the time Murillo was injured.
Because there is at least some evidence on all of the elements of a premisesdefect claim, rendition of judgment in Oncor’s favor would be inappropriate, even
if Murillo’s only claim were indeed a premises liability claim, as Oncor contends,
rather than a negligent activity claim, as we have held. See, e.g., Spencer, 876
S.W.2d at 157 (holding that remand is proper when defective liability question is
submitted). Thus, even if we were to agree with Oncor and the dissent that this
case could have been presented to the jury as a premises liability case, our finding
that the jury charge was defective would lead only to remand for an unnecessary
and duplicative new trial on the same facts and the same evidence that was before
the jury in the original trial in which the jury found that Oncor was negligent and
that its negligence proximately caused Murillo’s injuries.
44
We overrule Oncor’s first, second, and third issues.
Expert Testimony
In its fourth issue, Oncor contends that expert testimony is required to prove
the standard of care for power companies and that Oncor breached that standard.
In its fifth issue, it contends that Murillo’s expert was unqualified and that,
therefore, his testimony was unreliable.
“Expert testimony is necessary when the alleged negligence is of such a
nature as not to be within the experience of the layman.” FFE Transp. Servs., Inc.
v. Fulgham, 154 S.W.3d 84, 90 (Tex. 2004). The determination of whether expert
testimony is necessary is a question of law which may be determined by the
appellate court. Id. at 89.
The expert about whom Oncor complains, Wayne Rogers, was an electrician
with experience and qualifications as an electrician and with knowledge of the
safety code applicable to residential and commercial uses of electricity.
He
testified that Oncor should have de-energized Pad B when it disconnected the
power to the temporary pole in June, that the failure to do so was unreasonable,
and that it created an extreme risk of injury. He also testified that Oncor violated
the National Electric Safety Code by not having one person in charge of the
project. Murillo’s negligence claim against Oncor was predicated on Oncor’s
failure to de-energize the electricity to Pad B at the Windfall Apartments
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demolition site and its continuing to distribute electricity to Pad B during ongoing
demolition, salvage, and utility removal activities on the worksite.
Expert
testimony other than that of an electrician was not required to establish the
standard of reasonable care applicable to Oncor as the distributor of electricity to
the transformer. See id. at 89–90.
We overrule Oncor’s fourth and fifth issues.
Remittitur
In its sixth issue, Oncor contends that it is entitled to remittitur for excessive
damages for disfigurement found by the jury.
The final judgment awarded Murillo total damages of $7,770,000, including
$2,000,000 for “[d]isfigurement sustained in the past” and $1,000,000 for future
disfigurement, $2,500,000 for past pain and mental anguish, $500,000 for future
pain and mental anguish, $1,000,000 for past physical impairment, $500,000 for
future physical impairment, $200,000 for future medical care expenses, and
$70,000 for past lost earning capacity.
“Disfigurement” is “that which impairs the appearance of a person, or that
which renders unsightly, misshapen or imperfect, or deforms in some manner.”
Figueroa v. Davis, 318 S.W.3d 53, 64 (Tex. App.—Houston [1st Dist.] 2010, no
pet.). Compensation for disfigurement, like compensation for pain, suffering, and
mental anguish, is included in non-economic damages. Golden Eagle Archery,
46
Inc. v. Jackson, 116 S.W.3d 757, 763 (Tex. 2003); Figueroa, 318 S.W.3d at 62.
“The matter of future disfigurement is necessarily speculative and there is no
mathematical yard stick by which one can measure damages for it.” Figueroa, 318
S.W.3d at 64. “Each case must be judged on its own facts and considerable
discretion must be vested in the jury.” Id. (quoting Tri-State Motor Transit Co. v.
Nicar, 765 S.W.2d 486, 494 (Tex. App.—Houston [14th Dist.] 1989, no writ)).
However, the evidence of non-economic damages must justify the amount
awarded. Bentley v. Bunton, 94 S.W.3d 561, 605–06 (Tex. 2002); Rentech Steel,
L.L.C. v. Teel, 299 S.W.3d 155, 165 (Tex. App.—Eastland 2009, pet. dism’d).
Oncor and Murillo have both presented cases showing a wide range of
damages for past and future disfigurement awarded in past cases. See, e.g., Teel,
299 S.W.3d at 165–67 (affirming $1,550,000 award for past and future
disfigurement, plus other non-economic damages totaling $8,550,000, when both
hands of sixteen-year-old were degloved by power roller machine); Schindler
Elevator Corp. v. Anderson, 78 S.W.3d 392, 413 (Tex. App.—Houston [14th Dist.]
2001, pet. granted, judgm’t vacated on other grounds) (affirming disfigurement
award of $3,000,000, remitted to just under $2,000,000, for child whose foot had
missing and misshapen toes and a damaged bottom following escalator accident);
Goldston Corp. v. Hernandez, 714 S.W.2d 350, 353 (Tex. App.—Corpus Christi
1986, writ ref'd n.r.e.) (affirming award of $25,000 for past and future
47
disfigurement for amputation of one toe, scars, and blackened instep at time of
trial, eighteen months after injury).
Here, Murillo suffered permanent and significant deformity to his hands and
forearms as a result of his electrocution. He had grade IV burns to both arms. He
also suffered exposed muscles, tendons, and nerves in his arms. The nerves and
tendons have little to no chance of regeneration, and Murillo had been left with no
sensation in his thumb and in his fingers closest to his thumb. He also has no
sensation in his forearms.
At the time of trial, Murillo had had ten surgical procedures, and the
unchallenged expert testimony of his treating physician, Dr. Edward Melissinos, a
reconstructive micro-surgeon, indicated that he might still need future surgical
procedures. The surgeries included transferring nerves from his ankles to his hand
and transferring skin from his thighs to his forearms. They also involved irrigating
his forearms and implanting his back muscles into his forearms.
Dr. Melissinos testified that Murillo will need daily home physical therapy
exercises for the rest of his life and will have a higher chance of future injury in the
affected areas. He will likewise always have the probability of scar development
and arthritis in the affected areas. He will always have limited range of motion and
limited strength in the affected areas. Murillo himself testified that the loss of his
ankle nerves weakened his legs. He needed help with life functions, such as using
48
the restroom, cleaning himself, feeding himself, getting dressed, and bathing, for a
year and a half after his injury. He spends two to four hours a day on physical
therapy.
Murillo’s wife testified that he has low self-esteem. Murillo testified that he
had felt frustrated throughout his recovery, had had lots of nightmares, felt as
though his wife felt sorry for him, had had trouble accepting his deformities, and
felt as though people were staring at him, so he tried to hide his arms. At trial, the
jury was shown photos and videos of Murillo. They also were able to observe him
over several days of trial.
Given the evidence of the severity of Murillo’s wounds, the requirement of
ten past operations involving skin grafts and muscle and nerve transfers from other
parts of his body, the prospect of more operations and of future scarring and
arthritis, and the ongoing effect of his injuries upon his appearance, self-esteem,
and interaction with others, including his wife, we cannot say that the jury abused
its wide discretion in awarding Murillo $2,000,000 for past disfigurement and
$1,000,000 for future disfigurement—the only part of the damages award
challenged by Oncor. We also note that the jury awarded no damages for loss of
consortium.
We overrule Oncor’s sixth issue.
49
Conclusion
We affirm the trial court’s judgment against Oncor.4 The judgment against
the other defendants remains undisturbed.
Evelyn V. Keyes
Justice
Panel consists of Justices Keyes, Bland, and Sharp.
Justice Bland, dissenting.
4
In its motion for rehearing, Oncor argues that it is entitled to remand “so that the
trial court can amend the judgment to provide Oncor the settlement credit that it is
entitled to under Civil Practice and Remedies Code section 33.012.” However, we
note that the final judgment already provides that the damages owed by Oncor to
Murillo “shall be reduced by any sum, if paid, by its co-defendants to the
satisfaction of this judgment” and that Oncor “shall have and recover from the
other defendants whatever amounts the other defendants do not pay of the amount
that is awarded against them by this judgment” to the extent that Oncor “pays
more than 60% of the judgment against it.” Thus, the judgment of the trial court
already awards Oncor the relief it is requesting, and any issues arising out of the
enforcement of the trial court’s judgment are properly addressed to the trial court.
See TEX. R. CIV. P. 621; Arndt v. Farris, 633 S.W.2d 497, 499 (Tex. 1982) (“The
general rule is that every court having jurisdiction to render a judgment has the
inherent power to enforce its judgments.”).
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