Oncor Electric Delivery Company, LLC v. Marco Murillo

Opinion issued October 16, 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. 2008-64374

EN BANC OPINION

This lawsuit arises from an electrical contact workplace accident that

occurred on a tract of property in Dallas. After subcontractor work crews

demolished and removed existing apartment complexes located on the property, it

was slated for redevelopment. Marco Murillo, an AAA Demolition Company

employee, sustained severe injuries when he attempted to disconnect a cable from

within an energized electrical transformer. Murillo sued the property’s owner, the

developer, the project manager, and the area electrical provider, Oncor Electric

Delivery Company, L.L.C. At Murillo’s request, the trial court submitted a general

negligence question to the jury. The jury found liability against Oncor and three

others—AAA (Murillo’s employer), Basic Industries, Inc. (the project manager)

and Hunt Realty Investments, Inc. (the property developer). It apportioned 60% of

the responsibility for Murillo’s injuries to Oncor.

Oncor appeals the judgment against it, rendered on the jury’s verdict. Oncor

contends, among other complaints, that the trial court erred in submitting a general

negligence charge to the jury with respect to Oncor, an electricity–carrier

defendant. Because the trial court erred in rendering judgment against Oncor on a

general negligence claim, we reverse.

Background

Next Block 1—Dallas, LP acquired an eighty–three–acre tract of property,

covering several blocks in Dallas County. At the time, the tract housed nine

dilapidated apartment complexes, including the Windfall Apartments. Next Block

retained HRC–MJR Development, LLC, an affiliate of Hunt Realty Investments, to

provide development management services for the property. HRC–MJR assigned

its employee, Scott Shipp, to be the manager for the project.

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Oncor’s presence on the property

Oncor (also referred to as TXU Electric Delivery Company in the testimony

and trial exhibits) held an electrical utility easement on the property, filed in the

real property records of Dallas County in 1971, and initially granted to Dallas

Power & Light Company. The easement granted use of the property within its

bounds “for the construction, maintenance, and operation of an electrical

transmission.” Oncor had provided electric service to the apartments via sets of

electrical transformers, housed in metal boxes that stood on concrete pads outside

each apartment complex. These transformers converted the higher–voltage

transmission line electricity to lower–voltage residential line electricity.

Underground cables connected the transformers outside each apartment complex to

a series of meters, one for each residence.

Two of these concrete transformer pads were located in front of the former

Windfall Apartments. The pads, designated as Pads A and B, housed a set of

transformers. On each 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 connected to the individual apartment electric meters.

3

Each of the three transformer boxes had an exterior door and an interior

door, secured with locks. The transformer boxes conspicuously posted safety

warnings. On the exterior door of 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 doors, a sign read:

DANGER

KEEP AWAY

IMMEDIATELY CALL

DALLAS POWER & LIGHT CO.

[telephone number]

Contact with certain parts

within this box can cause

electric shock and death

KEEP AWAY

The signs included typical illustrations used to warn of danger from electrical

shock.

The redevelopment of the property

The re–development plans contemplated that Oncor would remove its

electrical transformers from the site. Oncor handled transformer removals with an

onsite crew that de–energized and removed the electrical equipment and metal

boxes.

4

In March 2007, Next Block and Oncor entered into a series of service

agreements, 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”; they did not specify a time

frame. The agreement identified Shipp as the Next Block company customer

representative and required that customer notification be sent to him in care of

Hunt Realty Corporation.

Shipp was the development project’s sole contact point with Oncor.

Demolition begins

At the property, the old apartment buildings required asbestos abatement

before further demolition could occur; the asbestos abatement workers required

electric power for their equipment. Because the dust generated during asbestos

abatement is explosive, the power had to be turned off in the building while they

worked, so they powered their equipment either from an adjacent building or from

a temporary utility pole.

Jason Hagmeier, an Oncor employee, worked with Shipp on transformer

removals from the work site. Periodically, Shipp would contact him and tell him

an area that was ready for transformer removal. Hagmeier would then check

Oncor’s records regarding the transformers involved and forward a removal plan to

an Oncor work crew.

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Oncor would schedule the removal when it had an available crew, usually

within six to seven weeks of the request and in consideration of the priorities

attendant to other jobs, such as those made necessary by weather–related service

issues. Oncor work records show that its crews performed electrical relocation and

transformer removal work throughout the property from April through July 2007.

Demolition at the Windfall Apartments

With respect to the Windfall Apartments, on April 19, Shipp e–mailed

Oncor and asked that it close the metered 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 apartment units.

The next day, Shipp further requested that Oncor supply power to a “temporary

pole set” for the Windfall Apartments—necessary to provide electricity for the

asbestos abatement workers. On April 24, an Oncor work crew connected two

temporary utility poles installed near the Windfall Apartments.

On May 8, one of the Windfall transformers, on Pad A, caught fire due to a

blown electric meter. Oncor sent a crew to the scene to de–energize that

transformer. The other transformers remained energized.

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.” Oncor responded on June

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11: “Thank you for your fax. Per your request, CSA [for the Windfall Apartments]

ha[s] been cancelled for you effective 6/11/07. If you need any of these properties

turned off, please provide a list of those addresses or account numbers.” Company

records dated June 12 indicate that the temporary service meters were disconnected

on June 11, but Oncor neither de–energized nor removed any transformer sets at

that time.

Murillo’s employment at the job site

Basic subcontracted with AAA, Murillo’s employer, to demolish one part of

the overall project—the part associated with the Windfall Apartments. AAA had

salvage rights to any materials it found within the scope of the demolition work,

which the contract documents defined as including “buildings, pavement, and

private utilities.” Because the apartments were very old, they contained valuable

copper in the plumbing and wiring within them. Shipp told the subcontractors at

the worksite that the transformers and electrical facilities located on the property

were the property of Oncor Electric, and were to be left alone and always treated as

energized. The transformers and Oncor cables were not within the scope of

AAA’s demolition work. Shipp testified that he specifically had that conversation

with Leo Gomez, AAA’s owner and Murillo’s worksite supervisor.

Despite Shipp’s instructions, Leo Gomez instructed his crew to salvage

copper from Oncor’s electrical cables and transformer boxes as AAA demolished

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the apartment buildings. Murillo had noticed Oncor employees present in the area

around the apartment complexes, but he acknowledged that the Oncor employees

never spoke with the AAA crew. On occasion, according to Murillo, he saw Oncor

work crews remove disconnected transformers after a crew had pulled cables from

transformer boxes.

The accident

On July 24, Leo Gomez ordered Murillo and the AAA crew to disconnect

cables from inside the Oncor transformer boxes near the Windfall Apartments.

The AAA crew removed the cables at the Pad A transformer connections, without

incident. The next morning, on July 25, the AAA crew removed cables attached

inside two boxes on Pad B, also without incident. After lunch, the crew returned to

remove the cables from the last transformer box on Pad B. No one on the AAA

crew checked to ascertain that the boxes were de–energized, or used a voltage

tester, or wore rubber gloves when working inside the transformer boxes.

Wearing work gloves, Murillo reached inside the third transformer box on

Pad B, holding a wrench. He intended to disconnect a copper cable attached to the

transformer. The transformer was energized. Murillo suffered a severe electrical

injury.

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Oncor was not at the scene

On the day of the accident, Murillo testified that he had noticed Oncor trucks

in the neighborhood, parked on a side street outside the construction fence about

500 feet away. But it is undisputed that no Oncor employees were present at the

work site that day, and had not been for several weeks. Only AAA employees

were present.

After the accident, an Oncor representative arrived at the scene. The

representative discovered four Oncor company locks cut open, lying on the ground,

in front of Pad B where Murillo’s injury occurred. Shipp never saw an open or

unlocked transformer door during the course of the project. Although Murillo

testified that he once had seen a box door ajar on Pad A, no evidence suggests that

the transformer doors on Pad B ever stood open or unlocked before the day of the

accident.1 Murillo denied having seen the locks on the ground next to Pad B, and

testified that the exterior and interior cabinet doors on Pad B were unlocked and

open. Neither Murillo nor Oncor presented evidence as to who cut off the locks

that had secured the transformer boxes.

1

Murillo testified that, several weeks before the accident and before demolition had

begun at Windfall Apartments, he saw police officers near a stolen vehicle that

had been stripped and left beside a transformer box on Pad A. At that time,

according to Murillo, he saw that the door on the box was unlocked and a few

inches ajar.

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Course of proceedings in the trial court

Murillo sued Oncor, together with his employer, AAA, the developer, and

the contractors at the site. Particular to Oncor, Murillo alleged that it negligently

failed to de–energize the transformer on Pad B on June 11, when it disconnected

the temporary service to the Windfall Apartments—about a month and a half

before the accident. Oncor conceded at trial that it had not de–energized the Pad B

transformers.

During the charge conference, the defendants, including Oncor, joined in

objecting to the submission of the case as a negligent activity case rather than a

premises liability case, contending that “the negligence question needs to be

predicated on a finding of control.” The defendants further objected

to the failure to submit a question as to the plaintiff’s status, whether

he is an invitee, a licensee, or a trespasser. . . . [T]o the extent that

there’s any fact question about that, the jury under the Olivo case, for

a premises liability case, the jury has to be . . . asked about the status

of the plaintiff, and then also has to be given the elements for a

premises liability claim.

In addition, the defendants tendered a question asking the jury to find whether

Murillo was an invitee, a licensee, or a trespasser. Murillo responded that the

defendants’ proposed question was relevant “only when it’s alleged and recovery is

sought that a negligent activity of an independent contractor . . . or [based on] a

premises defect.” Murillo stressed that his case fell under neither scenario. The

trial court overruled the objections and denied the tendered submission.

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The jury found that Oncor, Hunt and Basic

“exercise[d] or retain[ed] some control over the manner in which 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.” It further concluded that Murillo

was injured “by or as a contemporaneous result of some negligent activity” of

Oncor, Hunt, Basic, and AAA, and that these defendants—other than Oncor—had

been engaged in a joint enterprise. The jury placed 60% of the responsibility for

Murillo’s injuries on Oncor, 20% on AAA, 10% on Basic, and 10% on Hunt. It

awarded Murillo $3 million in past and future physical pain and mental anguish, $3

million in past and future disfigurement, $1.5 million in physical impairment, $0

for past medical care, $200,000 for future medical care, $70,000 in loss of past

earning capacity, and $0 in lost future earning capacity.

Proceedings on appeal

Basic and Hunt settled Murillo’s claim against them after submission of this

appeal to the panel, but before the panel issued its opinion. AAA did not appeal

the trial court’s judgment. Thus, the only party appealing the judgment is Oncor.

Initially, a majority of a panel of our court affirmed the trial court’s

judgment, with one justice dissenting. The panel majority concluded that the claim

against Oncor could sound in general negligence and was not one for a premises

defect; it further held that legally sufficient evidence supported all of the jury’s

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findings against Oncor. Oncor moved for rehearing and reconsideration en banc.

The panel majority then granted the motion for rehearing and revised its opinion,

mooting the en banc request; its disposition remained the same. Oncor again

moved again for en banc reconsideration. A majority of our court, with two

justices dissenting, voted to reconsider this case and withdrew the panel’s March

18, 2014 opinion and judgment. We issue this opinion and judgment in their stead.

Discussion

Oncor’s position in this case is unlike any of the other defendants found

liable by the jury—AAA (Murillo’s employer), Basic (the property manager), or

even Hunt (the property developer). Oncor did not control Murillo’s salvage work,

nor was Oncor’s negligence, found by the jury, based on Oncor’s contemporaneous

negligent acts. Rather, the case against Oncor was that it failed to adequately warn

about a dangerous condition (energized transformers in an electrical easement) and

failed to exercise reasonable care to make its premises safe (by reasonably

protecting others from contact with energized transformers in its electrical

easement).

At the trial court charge conference, Oncor objected that there was no

evidence to support a finding that it controlled Murillo’s work. In the trial court,

Oncor expressly adopted Basic’s request that the trial court instruct the jury on a

premises–liability theory of negligence rather than a negligent activity. Because

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we conclude that Oncor’s challenge to the general negligence verdict is dispositive

of the appeal, we do not reach Oncor’s contention that Murillo was a trespasser in

its electrical boxes, warranting an even more limited duty instruction to the jury;

we also need not address its remaining appellate challenges. Our resolution of the

case turns on Oncor’s role at the premises and its corresponding legal duty.

I. Defining a premises owner or occupant for claims in negligence

Oncor adduced evidence that the transformers stood on its electrical utility

easement, an easement filed in the real property records of Dallas County in 1971

and initially granted to Dallas Power & Light Company. The easement grants

Oncor use of the property within its bounds “for the construction, maintenance,

and operation of an electrical transmission.” Oncor exercised this right in

constructing the cement transformer pads and in placing and operating electrical

transformers on them.

Murillo responds that Oncor, as an easement holder, did not own the

property on which the transformers stood, and thus could not be held liable under a

premises–liability theory. See Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697,

700 (Tex. 2002) (explaining that easement is “non–possessory interest that

authorizes its holder to use the property for only particular purposes”) (citing

RESTATEMENT (THIRD) OF PROPERTY (SERVITUDES) § 1.2 cmt. d). Thus, Murillo

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argues, Oncor cannot rely on the more limited scope of duty applicable to a

premises owner not actively engaged in any activity.

An easement holder who controls or occupies the easement, however, may

be liable in tort as an occupier of the property. The question of legal title for real

property purposes does not define whether a possessor of property has a legal duty

to answer in tort for premises defects it creates. For tort claims like this one, a

“possessor of land” is different than in the property rights context. A “possessor of

land” for the purposes of defining a legal duty in tort is:

(a) a person who is in occupation of the land with intent to control it,

or

(b) a person who has been in occupation of land with intent to control

it, if no other person has subsequently occupied it with intent to

control it, or

(c) a person who is entitled to immediate occupation of the land, if no

other person is in possession under Clauses (a) and (b).

RESTATEMENT (SECOND) TORTS § 328E (1965). “The important thing in the law of

torts is the possession, and not whether it is or is not rightful as between the

possessor and some third person.” Id. cmt. a.

Accordingly, “[a] premises–liability defendant may be held liable for a

dangerous condition on the property if it ‘assum[ed] control over and responsibility

for the premises,’ even if it did not own or physically occupy the property.” Cnty.

of Cameron v. Brown, 80 S.W.3d 549, 556 (Tex. 2002) (concluding that, for

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purposes of premises–liability claim, county assumed sufficient control over state–

owned causeway because it had maintenance contract with state that included

responsibilities over causeway’s streetlight system) (quoting City of Denton v. Van

Page, 701 S.W.2d 831, 835 (Tex. 1986)). “The relevant inquiry is whether the

defendant assumed sufficient control over the part of the premises that presented

the alleged danger so that the defendant had the responsibility to remedy it.” Id.;

see Entergy Gulf States, Inc. v. Isom, 143 S.W.3d 486, 489–90 (Tex. App.—

Beaumont 2004, pet. denied) (analyzing case in which injury occurred from

unmarked guy wire on utility company’s right–of–way as premises–liability

claim); Roberts v. Friendswood Dev. Co., 886 S.W.2d 363, 367 (Tex. App.—

Houston [1st Dist.] 1994, writ denied) (observing that easement holder has duty to

use ordinary care regarding use and maintenance of easement); see also Kibbons v.

Union Elec. Co., 823 S.W.2d 485, 489 (Mo. 1992) (property owner owed no duty

to construction worker who was injured when truck ran into uninsulated 7200–volt

power line over property; electricity provider held easement in which it placed

utility pole, had exclusive control and thus corresponding duty to inspect and

maintain lines); Reyna v. Ayco Dev. Corp., 788 S.W.2d 722, 724 (Tex. App.—

Austin 1990, writ denied) (where city, as holder of easement, had exclusive use

and control of easement property, apartment complex property owner had no

control over and thus no duty to repair open and energized electrical switching

15

cabinet that caused injury to child tenant).

Oncor adduced evidence that the transformers stood on its electrical utility

easement filed in the real property records of Dallas County. The easement

granted Oncor the right to construct and operate an electric transmission and

distribution system within its bounds. Oncor undisputedly controlled the

transformers on the easement as of the date of Murillo’s injury, and it introduced

evidence that it was the easement holder; it follows that Oncor had some control

over the premises on that date. As the easement holder and the party that

controlled the transformers, we hold that Oncor qualified as an occupier of the

premises for the purposes of creating a duty in tort. We therefore consider whether

the record supports the jury’s finding that Oncor negligently engaged in an activity

that caused Murillo’s injuries, or whether its duty to Murillo was limited to that of

an occupier of the premises at the time of the incident.

II. Defining a premises occupant’s scope of liability: negligent activity vs.

negligently furnishing a dangerous condition

Texas courts have consistently recognized that negligent–activity claims and

premises–defect claims are independent theories of recovery, and a finding of one

will not suffice to create liability for the other. See Gen. Elec. Co. v. Moritz, 257

S.W.3d 211, 214–15 (Tex. 2008) (distinguishing between negligent–activity theory

and premises–condition theory); Clayton W. Williams, Jr., Inc. v. Olivo, 952

16

S.W.2d 523, 527 (Tex. 1997) (noting “two types of negligence in failing to keep

the premises safe: that arising from an activity on the premises, and that arising

from a premises defect”); see also Mayer v. Willowbrook Plaza Ltd. P’ship, 278

S.W.3d 901, 909 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (“Negligent

activity and premises defect are independent theories of recovery.”).

Although “[t]he lines between negligent activity and premises liability are

sometimes unclear,” “negligent activity encompasses a malfeasance theory based

on affirmative, contemporaneous conduct by the owner that caused the injury,

while premises liability encompasses a nonfeasance theory, based on the owner’s

failure to take measures to make the property safe.” Del Lago Partners, Inc. v.

Smith, 307 S.W.3d 762, 776 (Tex. 2010). A finding of liability for a negligent–

activity theory “requires that the person have been injured by or as a

contemporaneous result of the activity itself rather than by a condition created by

the activity.” Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992); see Olivo,

952 S.W.2d at 527. In contrast, to assess liability in negligence for a premises

defect, an injury must occur as a result of a dangerous condition that the defendant

knows or should have known to exist yet fails to reasonably warn of the condition

or take reasonable measures to remedy it. Mayer, 278 S.W.3d at 909.

Both kinds of negligence claims require proof of the existence of a legal

duty owed by the defendant to the plaintiff, a breach of that duty, and damages

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proximately resulting from the breach. See W. Invs., Inc. v. Urena, 162 S.W.3d

547, 550 (Tex. 2005); West v. SMG, 318 S.W.3d 430, 438 (Tex. App.—Houston

[1st Dist.] 2010, no pet.). Under a premises–defect theory, however, the scope of

the duty is more singularly defined: the plaintiff must establish that (1) the

premises owner or operator had actual or constructive knowledge of the

complained–of condition; and (2) the complained–of condition posed an

unreasonable risk of harm. Olivo, 952 S.W.2d at 529 (citing Corbin v. Safeway

Stores, Inc., 648 S.W.2d 292, 296 (Tex. 1983)). A claim for an injury that resulted

from a premises defect cannot stand without jury findings and proof to support

these specific elements. See id. To determine whether Murillo’s case against

Oncor is a negligent–activity case or a premises–defect case, we examine the

allegations and proof adduced at trial.

It is undisputed that Oncor’s last activity with respect to the transformers

was on June 11 or 12. At that time—more than a month before Murillo’s injury—

Oncor read the nearby temporary meters, removed them, and closed the temporary

electrical account. On June 7, Scott Shipp requested that Oncor “please cancel the

Continuing Service Agreements (CSA’s) for the following apartments as soon as

possible due to their scheduled demolition: Windfall Apartments.” Oncor

responded on June 11: “Thank you for your fax. Per your request, CSA [for the

Windfall Apartments] ha[s] been cancelled for you effective 6/11/07. If you need

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any of these properties turned off, please provide a list of those addresses or

account numbers.” Work records dated June 12 indicate that this work was done.

Murillo argues that Oncor caused his injuries when it disconnected the

temporary service to the Windfall Apartments, and left the corresponding

transformer energized when Scott Shipp closed the temporary electricity account.

Murillo does not claim that Oncor supervised or controlled Murillo’s work at the

jobsite—or that Oncor was present at the site on the day of the accident. Rather,

Murillo contends that Oncor’s negligence was in leaving the transformer energized

when Oncor should have turned it off.

But Murillo points to no evidence that Oncor was obligated to de–energize

its transformer, that it had been instructed to do so, or that it verified to anyone

associated with the project that the Pad B transformer was either energized or de–

energized. On the day of the accident, although Murillo had noticed Oncor trucks

parked on the street outside the construction fence about 500 feet away, no Oncor

employees were present at the work site.

No evidence supports the jury’s finding that Oncor exercised or retained any

control over Murillo’s work; according to Murillo, the Oncor employees never

even spoke to anyone on the AAA crew. Absent “a relationship between the

parties giving rise to the right of control, one person is under no legal duty to

control the conduct of another, even if there exists the practical ability to do so.”

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Graff v. Beard, 858 S.W.2d 918, 920 (Tex. 1993). Control over distribution of

electrical power is not control over demolition and salvage work.

Shipp told all contractors at the site that Oncor had transformers located on

the property and that these transformers “were to be left alone and treated as

energized.” The transformers were not within the scope of any demolition work.

Shipp specifically informed Leo Gomez, AAA’s owner and Murillo’s worksite

supervisor, to consider the transformers to be energized. The signage on the

transformer box doors declared “DANGER, KEEP AWAY.” It warned that

energized electrical equipment was inside and of the dire consequences that contact

could cause.

Oncor did not contemporaneously energize the transformer while Murillo

worked, or tell anyone at the worksite that it had been switched off when in fact it

was not. Without evidence of such acts, Oncor, as an electricity provider, had no

general duty to recognize and prevent electrical contact during a construction

project. See Houston Lighting & Power v. Brooks, 336 S.W.2d 603, 606 (Tex.

1960) (holding that, where electricity supplier had its employees on construction

site from time to time in connection with supplying temporary electricity, any

knowledge supplier’s employees had of building construction was incidental to

supplying electricity; thus, construction worker who was injured when he

contacted live high–voltage electrical transmission lines “wholly failed to establish

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any reason” why electricity supplier should have foreseen injury, and “no duty

arises to act to prevent such unanticipated injury”).

Because Oncor’s failure to turn off an existing energized electrical

transformer was not contemporaneous with Murillo’s injury, it is insufficient to

create liability for general negligence. Without evidence of contemporaneous

conduct, Murillo’s claim against Oncor is “a nonfeasance theory, based on

[Oncor’s] failure to take measures to make the property safe,” and not an activity

“based on affirmative, contemporaneous conduct by [Oncor] that caused the

injury.” See Del Lago Partners, 307 S.W.3d at 776. Texas courts have

consistently considered similar circumstances under a premises–liability theory.

See, e.g., Shell Chem. Co. v. Lamb, 493 S.W.2d 742, 748 (Tex. 1973) (holding that

premises owner had no duty to warn electrical subcontractor of potential for

electric shock from condition which subcontractor was hired to repair); Shell Oil

Co. v. Songer, 710 S.W.2d 615, 620–21 (Tex. App.—Houston [1st Dist.] 1986,

writ ref’d n.r.e.) (concluding that Shell did not have legal duty to protect

electrician–contractor by de–energizing electrical system while under repair);

Corpus v. K–J Oil Co., 720 S.W.2d 672, 674 (Tex. App.—Austin 1986, writ ref’d

n.r.e.) (concluding that premises occupier was not liable for crewmember’s injury

when rig boom made contact with overhead electric power line; power line was

reasonably apparent condition and did not give rise to duty to warn); Allen v. Tex.

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Elec. Serv. Co., 350 S.W.2d 866, 868–69 (Tex. Civ. App.—Fort Worth 1961, writ

ref’d n.r.e) (affirming take–nothing judgment on grounds that electric service

company had no right of control and owed no duty to warn electrical worker hired

to repair power lines injured when he came into contact with energized line); see

also Le Vonas v. Acme Paper Bd. Co., 40 A.2d 43, 47 (Md. 1944) (holding that

company that retained independent contractor to hoist steel beams to roof had no

duty to warn contractor’s employees who sustained injuries when beam made

contact with live wires hanging near cable used to hoist beams), cited with

approval in Allen, 350 S.W.2d at 869.2

Murillo identifies no other negligent act with respect to Oncor. Neither

Murillo nor anyone else testified that Oncor authorized Gomez or the AAA

demolition crew to enter its transformer boxes. Murillo stated that he saw Oncor

trucks parked on Rambler street—the street that the Windfall Apartments faced—

2

We disagree with the dissent’s position that Texas Department of Transportation

v. Ramming supports a general negligence submission in this case. 861 S.W.2d

460 (Tex. App.—Houston [14th Dist.] 1993, writ denied). In Ramming, a car

accident occurred at an intersection where the Department’s signal maintenance

technician had turned off a traffic signal during testing and repair “[i]mmediately

prior to the accident.” Id. at 463. Our sister court stressed that “[t]he injuries

suffered by [the accident victim] did not arise from the ‘absence, condition, or

malfunction’ of a traffic signal,” but rather, the technician’s botched attempt to

take an amperage reading, which “simultaneously created the accident–causing

condition or malfunction.” See id. at 464–65. The accident in this case did not

result from any contemporaneous conduct of Oncor.

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in the two days before the incident, about 500 feet away, but he never interacted

with an Oncor employee. The evidence raises no reasonable inference that Oncor

engaged in a contemporaneous negligent activity that caused Murillo’s injury. See

Brooks, 336 S.W.2d at 606 (power company employees in the vicinity of

construction project created no duty in general negligence to project’s construction

workers).

The record lacks evidence that Oncor engaged in any negligent activity

contemporaneous with Murillo’s injury at the jobsite, or controlled the details of

Murillo’s work, or had a hand in salvaging cable, or authorized entry into the

transformers it operated within its electrical easement, or represented to anyone the

status of its transformer as de–energized. Without such evidence, Oncor’s duty

was, at most, that of an occupier of the premises. As a premises defendant, Oncor

was entitled to standard jury instructions that would have defined the scope of

Oncor’s duty to Murillo in light of the warnings to those who came near its

energized transformers and the efforts Oncor made to keep its premises safe. See

Brooks, 336 S.W.2d at 603 (holding that electrical supplier owed no duty in

general negligence to construction worker injured by contact with live high–

voltage electrical transmission lines on construction site); compare Tex. Dep’t of

Transp. v. Ramming, 861 S.W.2d 460, 465–66 (Tex. App.—Houston [14th Dist.]

1993, writ denied) (concluding that car accident that occurred at intersection where

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employee had turned off traffic signal during ongoing repair resulted from

negligent activity) with Kroger Co. v. Persley, 261 S.W.3d 316, 320–21 (Tex.

App.—Houston [1st Dist.] 2008, no pet.) (pleadings did not present negligent–

activity claim where plaintiff slipped on water near freezer display, evidence

showed that freezer’s stocker had left the area at least fifteen minutes before, and

plaintiff admitted she did not see stocker near display when she slipped).

The jury’s findings in general negligence, rather than premises liability, will

not support a judgment against Oncor. See Olivo, 952 S.W.2d at 529–30

(submission under negligent–activity theory did not address essential premises–

defect elements about knowledge and risk of harm and thus could not support

deemed findings under Tex. R. Civ. P. 279). The trial court therefore erred in

entering judgment against Oncor. See id.

III. Disposition

In its prayer for relief, Oncor asks for reversal and either rendition of

judgment or remand for a new trial. We consider which disposition is appropriate.

In Olivo, the Texas Supreme Court rendered judgment when a broad-form

negligence question was submitted that failed to instruct the jury on the premises

liability factors. See id. Since then, the Court has provided further guidance

concerning when remand, rather than rendition, is appropriate by distinguishing

between whether the omitted instructions made the question immaterial or merely

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defective. See Torrington Co. v. Stutzman, 46 S.W.3d 829, 839 (Tex. 2000). The

Court explained:

The cases in which we have concluded that a question was merely

defective, as opposed to immaterial, the question at issue attempted to

submit a theory to the jury that did not require the determination of

predicate facts to establish a legal duty, and thus attempted to submit a

controlling issue, albeit defectively. But in Olivo, the defendant owed

no duty toward the plaintiff unless specific factual predicates were

established. Without any determination that the specific factual

predicates were met, the question did not submit a controlling issue.

In other words, absent any determination that the factual predicates

giving rise to a legal duty were satisfied, the defendants’ failure to use

reasonable care was of no legal consequence.

Id. at 840 (citations and footnote omitted).

The Court observed that, because Torrington owed no legal duty toward the

plaintiffs absent a predicate finding of duty, “Torrington’s failure to use ordinary

care is immaterial and rendition would normally be proper.” Id. But it

nevertheless remanded the case in the interest of justice because the Court had not

previously considered how a negligent undertaking claim should be submitted to

the jury, and no prior appellate decision in Texas had directly addressed whether

the factual predicates giving rise to a negligent undertaking claim should be

submitted to a jury or decided by the court as a question of law. Id. (citing TEX. R.

APP. P. 60.3). In contrast, the Court observed that it did not find a remand in the

interest of justice warranted in Olivo “because the distinction between premises

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liability claims and negligent activity cases, and the requirement that the Corbin

elements be submitted in premises liability cases, were well established by the time

the case was decided.” Id. at 841.

Olivo controls the disposition in this case. Murillo specifically opposed the

defendants’ proposed questions asking the jury to make the predicate finding—a

required element in premises–liability cases—as to whether he was a licensee, an

invitee, or a trespasser. The defendants also sought submission of the claim as one

for premises liability: framed with respect to the condition of the premises and

whether that condition posed an unreasonable risk of harm. Murillo expressly

refused to submit the case to the jury under a premises–liability theory, and the

distinction between premises–liability claims and negligent–activity cases is well-

established. The evidence in this case does not demonstrate the latter: a negligence

question, without more, cannot support a judgment against a possessor of land.

See Torrington, 46 S.W.3d at 838. Because the premises–liability theory required

the determination of predicate facts to establish the appropriate legal duty, and the

charge did not submit these predicate facts to the jury, we must render judgment.

See id; see also Olivo, 952 S.W.2d at 529–30.

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Conclusion

Because an existing energized transformer within an electrical easement is a

condition of the premises, and not a contemporaneous negligent activity, the trial

court erred in rendering judgment against an electricity provider based on a general

negligence claim. We reverse the trial court’s judgment against Oncor and render

judgment that Murillo take nothing on that claim. The judgment against the other

defendants remains undisturbed.

Jane Bland

Justice

Justice Bland, joined by Chief Justice Radack, and by Justices Jennings, Higley,

Massengale, and Huddle, for the en banc court.

Justice Keyes, joined by Justice Sharp, dissenting.

Justice Brown, not participating.

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