Oncor Electric Delivery Company, LLC v. Marco Murillo

Opinion issued October 16, 2014

In The

Court of Appeals

For The

First District of Texas

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NO. 01-10-01123-CV

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ONCOR ELECTRIC DELIVERY COMPANY, LLC, Appellant

V.

MARCO MURILLO, Appellee

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Case No. 0864374

DISSENTING OPINION ON EN BANC RECONSIDERATION

This is an important case. It goes to the distinction between the liability of a

premises owner for injury caused by its own negligent activity in controlling an

aspect of the manner of work on a worksite and the liability of a premises owner

for injury caused by a premises defect. The en banc majority determines, as a

threshold matter, that the trial court erred in submitting this case to the jury on the

negligence theory of liability pleaded by the plaintiff, Marco Murillo, rather than

on the appellant premises owner’s premises-defect defense. It then substitutes

premises defect definitions and instructions for those in the charge, determines the

sufficiency of the evidence to support the jury’s findings under the charge it

believes should have been submitted to the jury rather than the charge that actually

was submitted, and renders judgment in favor of appellant Oncor Electric Delivery

Company, LLC on that unsubmitted charge. It fails even to state the issues

presented by Oncor on appeal or to address the charge actually submitted to the

jury and the evidence in support of the jury’s findings. It thus eliminates the

distinction between the liability of a premises owner for its own negligent activity

and its liability for a premises defect and denies a plaintiff the right to sue a

premises owner whose ongoing negligent activity creates a dangerous workplace.

I believe this is error that goes to the heart of the litigation process and the

plaintiff’s right to have his case succeed or fail on his own theory of liability—not

on a defendant’s preferred theory. The en banc majority opinion also contravenes

controlling supreme court law. I, therefore, respectfully dissent. And I urge the

supreme court to take this case (1) to clarify the law distinguishing the liability of a

premises owner/occupier for its own negligent activity from an owner/occupier’s

liability for a premises defect of which it was aware and (2) to clarify the law

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governing jury charge error when a case is submitted to the jury on broad-form

questions on the plaintiff’s general negligence theory of liability over a defendant’s

objection that the case should have been submitted to the jury on questions and

instructions on its own premises-defect defense and not on the plaintiff’s pleaded

theory.

This case arose out of the near electrocution of Murillo, an employee of

AAA, a salvage company subcontractor working on a demolition and electrical

utility removal worksite. Oncor contractually assumed control over the

distribution of electricity to the site until all of its electrical utilities were removed.

However, it failed to disconnect one of the live electricity cables running to one of

the transformers when it sent a crew to the site for that purpose so that the

disconnection, material salvage, and utility removal operations could proceed

safely. Oncor thus continued to distribute live electricity through that cable to the

transformer on Pad B. Murillo reached into the open transformer box in the course

of his work on the site to disconnect the electricity cable so that its copper could be

salvaged and the transformer removed and was severely injured by the live electric

current Oncor was continuing to distribute through the cable.

Oncor argues, first, that Murillo’s case against it was incorrectly submitted

to the jury as a claim that “Oncor was negligent for failing to warn that the

transformer was energized or not de-energizing the transformer.” However, that

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was not Murillo’s claim. Murillo claimed that Oncor was negligent for failing to

de-energize the transformer when it sent a crew to the site for that purpose and for

continuing to distribute electricity to the transformer on Pad B scheduled for

removal, causing him to be injured when he attempted to disconnect the live cable

from the transformer.

Oncor also argues in its first issue that “Murillo’s only potentially viable

claim” was for a premises defect, which Murillo waived by failing to plead it. And

it argues that Murillo’s claim against it should have been submitted to the jury by

questions and instructions on its own premises defect theory rather than on the

broad-form negligence question and accompanying instructions sought by Murillo

and actually submitted by the trial court. However, it does not state that it never

sought to have its defensive theory submitted to the jury on inferential rebuttal

instructions; it sought only to substitute its theory for Murillo’s in the questions to

the jury.

Oncor argues in its second issue that the evidence was not legally or

factually sufficient to support the jury’s affirmative answers to questions requiring

Murillo to prove: “(1) that Oncor exercised or retained control over the manner in

which Murillo’s work in the transformer was performed; (2) that Murillo was

injured by or as a contemporaneous result of some activity of Oncor; and (3) that

Oncor’s negligence, if any, proximately caused the injury.” In other words, it

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argues that the evidence, viewed in the light most favorable to it, does not support

its own theory of premises defect liability—with its different legal definitions of

control and duty from those actually submitted. It does not argue that the evidence

does not support the jury’s findings on the plaintiff’s theory as actually submitted,

viewed in the light most favorable to Murillo, as required by the standard of review

of sufficiency of the evidence.

Oncor argues, third, that Murillo’s exclusive remedy against it was a claim

for premises defect liability under Civil Practice and Remedies Code Chapter 95,

which it pled as a defense. And it argues that Murillo waived this claim by not

securing findings on the essential elements of premises defect liability set out in

Chapter 95. Oncor does not argue that it waived its right to inferential rebuttal

instructions on its own defensive theory by failing to seek them. Rather, it urges

that judgment be rendered in its favor because the case was submitted to the jury

on Murillo’s general negligence theory, over its objection.

The en banc majority accepts Oncor’s arguments. Rather than judging the

sufficiency of the evidence to support the verdict under the charge actually given,

it frames the sole issue before this Court as whether “the trial court erred in

submitting a general negligence charge to the jury with respect to an electricity-

carrier defendant,” and it immediately concludes that “[b]ecause the trial court

erred in rendering judgment against Oncor on a general negligence claim, we

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reverse.” Slip Op. at 2. Thus, as a threshold matter, it rejects the negligent activity

case that was presented to the jury at trial and views the case solely on Oncor’s

theory as a premises defect case.

Accordingly, the en banc majority does not set out the elements of proof of

negligent activity by a premises owner/occupier or determine whether the record

supported the submission of Murillo’s claims to the jury on a broad-form general

negligence theory. It does not state the elements of general negligence set out in

the jury charge, on which the jury was asked to make findings. Nor does it

examine, in the light most favorable to Murillo, the sufficiency of the evidence to

support the jury’s findings. It also fails to distinguish the proper jury charge in a

negligent activity case from the proper charge in a premises defect case. And it

fails to address whether Oncor properly presented its objections to Murillo’s theory

of the case and properly preserved error in the charge. I believe these inquiries are

critical to the proper disposition of the issues in this case.

Because the en banc majority does not analyze the case as a negligent

activity case, it also does not address evidence material to the establishment of

Oncor’s duty and breach on such a theory. This evidence includes the service

agreement between Oncor and the premises owner, Next Block 1—Dallas LP

(“Next Block”), likewise a defendant, under which Oncor agreed to control

electricity distribution services to the worksite until the “complete removal” of all

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of its utilities from the site and its actual control of the electricity distribution as the

work progressed on the site. Nor does it address as acts of negligence that

proximately caused Murillo’s injuries Oncor’s sending a crew to the site on June

12 to disconnect the power to the transformer that injured Murillo, Oncor’s leaving

the transformer pad partially energized even after it discontinued the customer

account and removed its meters, and its ongoing negligent distribution of

electricity through the live cable to the site during the utility removal process after

closing the customer account.

The en banc majority simply determines that Oncor’s “last activity with

respect to the transformers was on June 11 or 12.” Slip Op. at 18. And it

mistakenly claims that “[c]ontrol over distribution of electrical power is not control

over demolition and salvage work” on a worksite. See id. at 20. It is, however,

material evidence of Oncor’s exercise of control over a critical aspect of the

manner in which the workmen were to perform their work, namely, whether they

were to disconnect Oncor’s electricity cables from the transformers scheduled for

removal safely or unsafely because they were still energized.

The en banc majority disregards the evidence that Oncor specifically

undertook to control the distribution of electricity to the worksite until the removal

of all of its utilities. It fails to cite testimony from Oncor and others that the

customary practice on the worksite was for Oncor to leave the open transformer

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boxes until it could get to them and for both Oncor and AAA to participate in

removing the electricity cables and salvaging the wiring prior to Oncor’s removal

of the transformers from the worksite. And it disregards Murillo’s uncontradicted

testimony that, on multiple occasions throughout the project, Oncor crews

observed both Murillo and other AAA workmen removing cables from Oncor’s

transformers as part of the utility disconnection, material salvage, and transformer

removal operations.

The majority references only Oncor’s representation to its customer, Next

Block, that it had cancelled service effective June 11; Oncor’s representation in its

work records that the last electricity to the property had been turned off on June 12,

which Oncor characterizes as evidence that “this work was done”; and Oncor’s

evidence that its workmen never spoke to the AAA workmen. Slip Op. at 19–20.

It then takes this evidence as conclusive evidence that Oncor had no ongoing duty

of ordinary care in controlling the distribution of electricity to the worksite for the

safety of the workmen.

Consequently, the en banc majority holds, as a matter of law, that Oncor

could not be liable to Murillo for its negligence on the worksite because its activity

with respect to the worksite ceased more than a month before Murillo’s injury. Id.

at 21. And it concludes that “[w]ithout evidence of contemporaneous conduct,

Murillo’s claim against Oncor is a premises liability theory,” that “Oncor’s duty

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was, at most, that of an occupier of the premises,” and that, therefore, “Oncor was

entitled to standard jury instructions” applicable to a utilities easement

owner/occupier and could not be sued by Murillo for its negligence. Id. at 21–23.

Finding no breach of duty by Oncor, it renders judgment in Oncor’s favor.

But the duty upon which the en banc majority decides the case—the duty of

a premises owner to members of the general public who are not trespassing in a

utilities easement—is not the duty submitted to the jury and it is not a concept on

which the defendants sought a legal ruling prior to submission. And the en banc

majority’s legal conclusion that Oncor’s negligence was not contemporaneous with

Murillo’s injury is exactly the opposite of the jury’s finding after being given the

instruction to find negligence only if a defendant’s act was contemporaneous with

Murillo’s injury—an instruction sought by the defendants over Murillo’s objection

that it was not part of the pattern jury charge on negligence. Likewise, the en banc

majority’s legal finding that Oncor had no duty of ordinary care arising out of

Oncor’s control over an aspect of the manner in which Murillo did his work

contradicts the defendants’ insistence that this definition of control be included in

the charge to the jury to describe the duty owed by the defendants to Murillo. And

the en banc majority’s legal conclusion that there is no evidence to support the

jury’s findings on the questions of control and duty depends entirely upon its

substituting these rejected instructions and definitions into the charge in place of

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those actually submitted and ruling on that charge—not on the one submitted, as

required by the standard of review of jury charge error.

I would measure the sufficiency of the evidence to support Murillo’s claims

by the charge that was actually given, not by the charge the defendants sought to

substitute for it. And I would hold that the evidence, viewed in the light most

favorable to Murillo, as required by the appellate standard of review, is both

legally and factually sufficient to support the jury’s findings that Oncor controlled

the distribution of electricity to the transformer where Murillo was injured during

the utility removal process; that it owed both a contractual and a common-law duty

to use ordinary care in distributing electricity to that transformer to prevent

electrical injury to persons, like Murillo, engaged in utility removal activities; and

that it negligently breached that duty, directly and foreseeably causing the injuries

suffered by Murillo. Thus, I would hold that the jury properly found Oncor liable

to Murillo for its ongoing negligent activity and properly awarded Murillo

damages against Oncor for his injuries. Finding no error in the charge, I would

therefore affirm the trial court’s judgment.

Background

Because I believe the proper disposition of this case requires consideration

of facts the en banc majority opinion omits as immaterial, I have recited below

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those sections of the record I find pertinent to support the jury’s findings and to

show the objections made to the charge below.

A. The Evidence at Trial

As the en banc majority recites, Oncor owned electricity transformers on

property owned by Next Block, which planned to demolish the existing structures

in order to redevelop the property. Next Block retained HRC-MJR Development,

LLC (“HRC-MJR”), and its affiliate, Hunt Realty Investments, Inc. (“HRI”), to

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

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

agreements identified Scott Shipp as the Next Block company customer

representative, and they required customer notification to him in care of HRC-

MJR. The record indicates that, before June 2007, Shipp paid Oncor for the

removal of all of its transformers.

The first stage of the property redevelopment project involved asbestos

abatement, which required the use of some temporary electricity poles and meters

installed by Oncor. This was followed by the demolition of the old apartment

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buildings on the site and the removal of all improvements, including Oncor’s

poles, meters, transformers, and all other utilities, from the site. Basic Industries,

Inc., the general contractor, and AAA, an independent-contractor salvage company

and Murillo’s employer, cleared the land for five of the nine apartment complexes

scheduled to be demolished. The Windfall Apartments was the last complex to be

cleared.

In April 2007, Oncor sent its workmen to the site to install a temporary pole

with two meters and with cables running to its transformers on Pad A and Pad B to

distribute electricity to the final part of the project during the asbestos abatement

process. In May, the transformer on Pad A malfunctioned, and Oncor sent a crew

to disconnect the electricity running to the transformers on Pad A, leaving

energized only the two cables on the pole that serviced the transformers on Pad B.

The contractors completed the asbestos abatement work in early June, 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.” Oncor responded on June 11:

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

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

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

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Oncor’s work records dated June 12 indicate that, on that day, Oncor read

the temporary meters on the site, closed service on them, de-energized the

temporary utility pole, and removed the meters from the utility poles. But there

were two electricity cables running to the transformers on Pad B, and Oncor failed

to de-energize one of them. That cable remained energized, and Oncor continued

to distribute electricity through it to the transformer after closing the account and

during the utility removal process taking place on the site. Oncor did not 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 or that it

continued to distribute electricity to one of the transformers on Pad B during the

transformer disconnection and removal operations after cancelling service to the

site and removing the meters.

Oncor’s maintenance and construction supervisor, James Booker, testified,

wrongly, that there was only one cable connection between the transformers and

the utility pole. His testimony indicated that he was generally unaware of Oncor’s

work on the worksite. By contrast, 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

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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 representative, 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 regarding the wires that ran to each of the three boxes on the transformer

pad. The customer, Next Block, owned the “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 worksite because part of the crew’s

job “was to salvage our copper that was owned by Oncor out of the transformers.”

However, Hagmeier and other witnesses also testified 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 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

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provided by Oncor” and that Oncor “provide[s] these types of services when [it]

can get to them.” And 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.

Murillo participated in the salvage of copper wiring from the electrical

cables on the site as part of the AAA work crew under the supervision of Leo

Gomez. Shipp testified that he told the contractors that Oncor’s 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. However, Shipp also testified that he had

that conversation with Gomez, who was killed before trial and thus was not

available to testify and could not respond to that testimony.

Murillo testified that he noticed Oncor employees in the demolition and

utility removal area as the AAA crew did its work around the apartment complex;

and he testified that the Oncor crews would approach the work site to remove the

transformer boxes after the AAA crew had removed the cables. Murillo also

testified that, as he and his co-workers approached the transformer cabinets to

disconnect the cables and salvage their wiring, they would find the doors unlocked

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and open. And he testified that when he approached the final set of transformers—

the Pad B boxes—the exterior and interior cabinet doors were unlocked and open,

just as they had been on the other transformer boxes on which AAA had worked.

Murillo reached inside the left metal box on Pad B, using work gloves and holding

a wrench, to disconnect the copper cable attached to the transformer. The

transformer was energized. Murillo suffered severe electrical injuries.

Oncor representative Hagmeier testified that he visited the pad site where

Murillo was injured after the accident occurred. He noticed that the locks around

the accident site had been cut and were lying on the ground, and he took a

photograph of them. Hagmeier testified that on other occasions when he had met

with Shipp at the job site he had noticed that the locks in another part of the

complex were in place. He testified that the Oncor work crew had keys for the

locks and that “when they go out there to work the job site, they unlock the locks

themselves.”

Neither Murillo nor Oncor presented evidence as to who had cut off the

locks. However, Murillo testified that the locks on Pad A had been cut off a month

earlier when he observed the boxes as police officers were arresting a person in

front of them. And another Oncor employee, Keith Albanese, testified that,

although he did not remember removing the temporary pole or de-energizing the

utility pole he had previously re-energized to provide temporary power to the site,

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he and other Oncor workers would cut locks with bolt cutters “if [he had] to”

because he did not have a working key or because he had to remove “personal

locks.”

Following the accident, Murillo sued Oncor, along with five other

defendants, including Basic, Next Block, and AAA, on a negligent activity theory

of liability. He alleged that Oncor had controlled the distribution of electricity to

the worksite during the demolition and utility removal process and that it had

negligently failed to de-energize one of the electricity cables running to the

transformers on Pad B on June 12, when it disconnected the remaining temporary

service to the Windfall Apartments after previously disconnecting the temporary

service to Pad A. Murillo further alleged that Oncor continued to distribute

electricity to that transformer after the service contract was canceled. Oncor

conceded at trial that it had not de-energized the Pad B transformer.

B. The Jury Charge

The case was submitted to the jury on a broad-form negligent activity theory

of liability as to all defendants over the defendants’ objections that it should be

submitted, instead, on a premises defect theory.

1. The General Negligence Charge Submitted to the Jury

In the “Definitions” section of the jury charge, “negligence” was defined as

“failure to use ordinary care”; “ordinary care” was defined as “that degree of care

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that would be used by a person of ordinary prudence under the same or similar

circumstances”; and “proximate cause” was defined in two parts as (1) “a

substantial factor that brings about an event and without which the event would not

have occurred” and as (2) “foreseeable,” i.e., 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.” 1 The jury was instructed that

“[t]here may be more than one proximate cause of an event.”

The jury was asked in Question No. 3 whether the listed defendants

“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

1

These are the definitions of “negligence,” “ordinary care,” and “proximate cause”

set out in the Texas Pattern Jury Charges (“PJC”). See Comm. on Pattern Jury

Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence &

Intentional Personal Torts PJC 2.1 (2012). The comment to PJC 2.1 states that

these definitions “should be included in the court’s charge in every case in which

ordinary negligence is the standard of care. They include the standard and

accepted elements of negligence.” Id. PJC 2.1 cmt. (citing Colvin v. Red Steel

Co., 682 S.W.2d 243, 245 (Tex. 1984)).

PJC 2.4 defines “proximate cause”:

a cause that was a substantial factor in bringing about an event, and

without which cause such event would not have occurred. In order

to be a proximate cause, the act or omission complained of must be

such that a person using ordinary care would have foreseen that the

event, or some similar event, might reasonably result therefrom.

There may be more than one proximate cause of an event.

Id. PJC 2.4.

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start or stop or to inspect progress or receive reports.” The jury was instructed to

answer Question No. 4 only if it answered “Yes” to Question No. 3 for the listed

defendants.

The jury was asked in Question No. 4 whether any of the listed defendants’

negligence “proximately cause[d] the injury in question.” 2 The jury was instructed

to answer “Yes” as to a listed defendant “only if [it found] that Marco Murillo was

injured by or as a contemporaneous result of some activity of that person or

entity.” The jury was also instructed that it should assign percentages of

responsibility only to those defendants it found “caused or contributed to cause the

injury in Question 4.” The percentages of responsibility the jury assigned to the

defendants it found negligent were set out in its responses to Question No. 6 and

damages were awarded in the remaining questions.

2. The Defendants’ Objections to the Charge

Oncor objected at the charge conference that there was no evidence of its

negligence or of proximate cause to support the submission of the case against it to

the jury on a general negligence theory. It also joined in the request of its co-

2

Question No. 4 reflects PJC 4.1, “Broad Form—Joint Submission of Negligence

and Proximate Cause,” which provides: “Did the negligence, if any, of those

named below proximately cause the [occurrence] [injury] [occurrence or injury]

in question?” Id. PJC 4.1. The question form provides for the jury to answer

“Yes” or “No” with respect to listed defendants. Question No. 4 also used the

definitions of “negligence” and “ordinary care” set out in PJC 2.1, “Negligence

and Ordinary Care.”

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defendant Basic for a question on control, which became Question No. 3. Next

Block, however, sought to define control in Question No. 3 in terms of control on a

premises defect theory of liability and to predicate Question No. 4 on Question No.

3. 3 Murillo agreed to submission of the control question only in terms of the

3

Question No. 3 reflects PJC 66.14, regarding a “Property Owner’s Liability to

Contractors, Subcontractors, or Their Employees (Tex. Civ. Prac. & Rem. Code

ch. 95),” which provides, “Did Olivia Owner exercise or retain some control over

the manner in which [the injury-causing] [the defect-producing] work was

performed, other than the right to order the work to start or stop or to inspect

progress or receive reports?” Comm. on Pattern Jury Charges, State Bar of Tex.,

Tex. Pattern Jury Charges: Malpractice, Premises & Products PJC 66.14 (2012).

The jury should be given the opportunity to answer “Yes” or “No.” Id.

When a case is submitted on a premises liability theory of recovery, PJC 66.14

provides that the negligence question be predicated on the control question. See

id. The negligence question then becomes:

Did the negligence, if any, of Olivia Owner proximately cause the

[occurrence] [injury] [occurrence or injury] in question?

With respect to the condition of the premises, Olivia Owner was

negligent if—

1. the condition posed an unreasonable risk of harm, and

2. Olivia Owner had actual knowledge of the danger, and

3. Olivia Owner failed to exercise ordinary care to protect

Paul Payne from the danger, by both failing to adequately

warn Paul Payne of the condition and failing to make that

condition reasonably safe.

“Ordinary care,” when used with respect to the conduct of Olivia

Owner as an owner of a premises, means that degree of care that

would be used by an owner of ordinary prudence under the same or

similar circumstances.

Id.

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defendants’ control over an aspect of the manner in which Murillo performed his

work in the transformer, rather than in terms of control of the premises.

Oncor also joined Basic in requesting that Question No. 4 include premises

defect instructions, specifically an instruction that, “[w]ith respect to the condition

of the premises,” the listed defendants were negligent if (1) “[t]he condition posed

an unreasonable risk of harm,” (2) the defendant entity “had actual knowledge of

the danger,” and (3) the defendant “failed to exercise ordinary care to protect

Marco Murillo from the danger, by both failing to adequately warn Marco Murillo

of the condition and failing to make that condition reasonably safe.” Oncor

similarly joined Basic’s request that instructions on Murillo’s status as licensee,

invitee, or trespasser be added to Question 4. And it joined Basic’s request that an

instruction be added to Question No. 4 that would give the jurors “the opportunity

to answer as to whether or not Mr. Murillo’s injuries were caused by or as a

The comment to PJC 66.14 provides:

When to use. PJC 66.14 should be used in cases governed by

chapter 95 of the Texas Civil Practice and Remedies Code, which

applies when a property owner is claimed to be liable for personal

injury, death, or property damage to a contractor, a subcontractor, or

an employee of a contractor or subcontractor arising from the

condition or use of an improvement to real property where the

contractor or subcontractor constructs, repairs, renovates, or

modifies the improvement. Under the statute, the property owner is

not liable unless he controlled the manner in which the work was

performed and knew of the harm and failed to adequately warn of it.

Id. PJC 66.14 cmt. (citing TEX. CIV. PRAC. & REM. CODE § 95.003 (Vernon

2011)).

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contemporaneous result of any activity of the defendant.” These instructions

reflected the pattern jury charge on a property owner’s liability to contractors,

subcontractors, and their employees provided for in Texas Civil Practice and

Remedies Code Chapter 95 and set out in Pattern Jury Charge (“PJC”) 66.14.

Murillo objected to the defendants’ attempt to insert the premises defect

elements into Question No. 3 in defining the duty of control of the defendants and

into Question No. 4 as instructions on the primary question on negligence. He

argued that the defendants’ premises defect theory of liability was an affirmative

defense to his own negligent activity theory of liability. Therefore, he argued, it

could “only be submitted by an affirmative defense instruction, not in the primary

negligence question.” Murillo further objected that the defendants had “not asked

for an affirmative defense instruction pursuant to PJC Chapter 3” and that “[t]hey

are only allowed to submit affirmative defenses by instruction, not questions. And

the PJC does have the appropriate language.” 4 He reiterated: “They are not

4

Chapter 3 of the Pattern Jury Charges on general negligence “contains the

inferential rebuttal instructions to submit if raised by the evidence.” Comm. on

Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General

Negligence & Intentional Personal Torts ch. 3 note (2012). The list of inferential

rebuttal questions includes “new and independent cause,” “sole proximate cause,”

“emergency,” “unavoidable accident,” and “act of God.” Id.

The note to Chapter 3 also states: “A number of traditional defensive or rebuttal

theories once submitted as special issues are now subsumed under the comparative

negligence question and are no longer submitted to the jury. These include . . . ‘no

duty’ and ‘open and obvious’ in premises cases.” Id. (citing Parker v. Highland

22

allowed to assert affirmative defenses by questions, which is what they are doing

in question number 3, and then predicating to question number 4.”

Murillo also objected to the submission of instructions on Murillo’s status as

a licensee, invitee, or trespasser—instructions appropriate to a premises defect

theory of liability—with Question No. 4 on the ground that “the plaintiff’s status is

irrelevant, given the facts of the case,” and “for all the reasons I stated just a short

while ago regarding the premises liability and when it applies pursuant to PJC

66.3” when “none of those [elements] apply in this case.” And he objected to an

instruction on contemporaneous activity in Question 4 on the ground that

“Question number 4 is the general negligence question. The PJC does not

authorize this definition to be submitted along with the general negligence

question.”

Oncor also joined Next Block’s attempt to add the premises defect elements

set out in Civil Remedies and Practice Code Chapter 95 to Question No. 4, which

Next Block accompanied by the statement, “We are real close on getting this case

submitted under Chapter 95.” And Murillo again objected that “the injury-causing

Park, Inc., 565 S.W.2d 512, 520–21 (Tex. 1978), and Massman-Johnson v.

Gundolf, 484 S.W.2d 555, 556–57 (Tex. 1972)).

The note further provides, “These theories should not be submitted by either

question or instruction.” Id. And it continues, “The Texas Supreme Court has

also cautioned that ‘giving multiple instructions on every possible rebuttal

inference has the potential to skew the jury’s analysis.’” Id. (citing Dillard v. Tex.

Elec. Coop., 157 S.W.3d 429, 433 (Tex. 2005)).

23

event is not what they are saying as a part of their affirmative defense,” i.e., breach

of the duty of a premises owner to warn of dangers of which it is aware or,

alternatively, Murillo’s own trespass in the transformer box, both of which the

defendants attempted to insert into Question No. 4 in place of the submission of a

general negligence question as defined in Question No. 4. Both were alleged as

alternative, hence as new and independent, causes of Murillo’s injury, intended to

inferentially rebut Murillo’s theory of the case. 5 Murillo insisted that “if they are

5

The “Inferential Rebuttal Instructions” section of the Pattern Jury Charges, in PJC

3.1, “New and Independent Cause,” defines “proximate cause” differently from

the definition set out in PJC 2.4, which was the jury instruction used in this case.

Rather, PJC 3.1 adds a definition of “new and independent cause.” It provides:

“Proximate cause” means a cause, unbroken by any new and

independent cause, that was a substantial factor in bringing about an

event, and without which cause such event would not have occurred.

In order to be a proximate cause, the act or omission complained of

must be such that a person using ordinary care would have foreseen

that the event, or some similar event, might reasonably result

therefrom. There may be more than one proximate cause of an

event.

“New and independent cause” means the act or omission of a

separate and independent agency, not reasonably foreseeable, that

destroys the causal connection, if any, between the act or omission

inquired about and the occurrence in question and thereby becomes

the immediate cause of such occurrence.

Comm. on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges:

General Negligence & Intentional Personal Torts PJC 3.1 (2012).

The comment to PJC 3.1 provides: “PJC 3.1 should be used in lieu of the usual

definition of ‘proximate cause’ (see PJC 2.4) if there is evidence that the

occurrence was caused by a new and independent cause. Submission if there is no

24

going to be allowed to submit these questions, we need to do it right,” namely by

keeping the injury-causing event as “what I have pled and proved,” i.e.,

negligence, and “then let . . . whatever their theory of the case is . . . be part of the

affirmative defense.” Again he repeated, “This is a direct negligence case with

respect to this defendant. . . . [T]hey are inserting their affirmative defense into the

negligence questions.”

The trial court overruled the defendants’ objections to Questions Nos. 3 and

4, and it refused to add to Question No. 4 the written instructions on the premises

defect elements that the defendants proffered. The court accepted the control

question proffered by the defendants, which became Question No. 3. It accepted

the defendants’ request that the jury be instructed to answer Question No. 4, the

broad-form negligence question on liability, with respect to a defendant only if it

answered “yes” to Question No. 3, finding that that defendant exercised some

control over the manner in which Murillo did his work in the transformer box.

such evidence is improper and may be reversible error.” Id. PJC 3.1 cmt. (internal

citations omitted).

The comment further provides:

Because a new and independent cause is in the nature of an

inferential rebuttal, it should be submitted by instruction only. TEX.

R. CIV. P. 277. . . . The “new and independent cause” instruction is

not used when the intervening forces are foreseeable and within the

scope of risk created by the actor’s conduct. Dew v. Crown Derrick

Erectors, Inc., 208 S.W.3d 448, 450–53 (Tex. 2006).

Id.

25

And it accepted the defendants’ request that the jury be instructed in Question No.

4 only if it found that “Murillo was injured by or as a contemporaneous result of

some activity of that person or entity.”

The charge was thus submitted to the jury on a general negligence theory of

liability. The defendants did not seek to present their premises defect theory of

liability via inferential rebuttal instructions as provided in Chapter 3 of the Texas

Pattern Jury Charges—General Negligence. They sought to submit them solely

instead of Murillo’s theory.

3. The Jury’s Findings

The jury found, in response to Question No. 3, that 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 also found, in response to

Question No. 4, that Oncor’s negligence “proximately cause[d] the injury in

question.” It found Oncor 60% responsible for having “caused or contributed to

cause the injury in [Question No.] 4,” and it assessed total damages of $7,770,000.

The trial court entered judgment on the verdict. Oncor appealed.

Oncor’s Liability to Murillo

In its first and second issues, Oncor argues that the case against it was

incorrectly submitted to the jury on a negligent activity theory of liability rather

26

than on a premises defect theory, that Murillo failed to state a claim against it on a

negligent activity theory, and that the evidence is legally and factually insufficient

to support the jury’s findings regarding its control and negligence.

A. Liability of Premises Owner/Operator for Its Own Negligent

Activity and for Premises Defect

Premises owners and occupiers, such as Oncor, may be held liable for

personal injuries caused by either (1) negligent activities of the owner or occupier

or (2) unreasonably dangerous conditions on the premises. See Timberwalk

Apartments, Partners, Inc. v. Cain, 972 S.W.2d 749, 753 (Tex. 1998).

The Texas Supreme Court has consistently recognized that negligent-activity

claims and premises-defect claims against a property owner/occupier involve two

independent theories of recovery that fall within the scope of negligence. See Gen.

Elec. Co. v. Moritz, 257 S.W.3d 211, 214–16 (Tex. 2008). It has stated that

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

sometimes unclear,” there is a recognized distinction between the two theories.

Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762, 776 (Tex. 2010). And it has

repeatedly “rejected attempts to blur the distinction between these two claims,”

much less to eliminate that distinction. See State v. Shumake, 199 S.W.3d 279, 284

(Tex. 2006); Keetch v. Kroger Co., 845 S.W.2d 262, 264 (Tex. 1992) (declining

“to eliminate all distinction between premises conditions and negligent activities”).

27

“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, 972 S.W.2d at 753. A premises

owner performing an activity on property it controls has a duty to use ordinary care

so that its activity does not proximately cause foreseeable injury. See Del Lago,

307 S.W.3d at 777 (holding that premises owner had duty to use degree of care in

performing activities that owner of ordinary prudence would use under same or

similar circumstances); Moritz, 257 S.W.3d at 214; West v. SMG, 318 S.W.3d 430,

438 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (holding same).

In a negligent activity case, “‘ordinary care’ means the ‘degree of care that

would be used by an owner or occupier of ordinary prudence under the same or

similar circumstances,’” and the failure to use such care must proximately cause

the plaintiff’s injury. Del Lago, 307 S.W.3d at 777. Thus, “negligence” in the

context of a negligent activity claim means doing or failing to do what a person of

ordinary prudence in the same or similar circumstances would have not done or

done. Timberwalk, 972 S.W.2d at 753.

Proximate cause requires both cause in fact and foreseeability, both of which

must be established by the evidence. W. Invs., Inc. v. Urena, 162 S.W.3d 547, 551

(Tex. 2005); see Del Lago, 307 S.W.3d at 774 (“Proximate cause comprises two

elements: cause in fact and foreseeability.”). “Foreseeability exists if the actor, as

28

a person of ordinary intelligence, should have anticipated the dangers his negligent

act created for others.” Aleman v. Ben E. Keith Co., 227 S.W.3d 304, 310 (Tex.

App.—Houston [1st Dist.] 2007, no pet.). Cause in fact means that the defendant’s

act or omission was a substantial factor in bringing about the injury which would

not otherwise have occurred. See Del Lago, 307 S.W.3d at 774; 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.”). “If the defendant’s negligence merely furnished a condition that made

the injury possible, there can be no cause in fact.” Urena, 162 S.W.3d at 551.

There may be more than one proximate cause of an occurrence. Del Lago, 307

S.W.3d at 774.

Unlike a negligent activity claim, a premises defect claim is not based on the

defendant’s malfeasance, but on its nonfeasance. Id. at 776. That is, “a premises

defect claim is based on the property itself being unsafe,” not on the defendant’s

activity. Shumake, 199 S.W.3d at 284 (emphasis added). Negligence in the

premises defect context thus means “failure to use ordinary care to reduce or

eliminate an unreasonable risk of harm created by a premises condition which the

owner or occupier [of land] knows about or in the exercise of ordinary care should

know about.” Timberwalk, 972 S.W.2d at 753 (quoting Keetch, 845 S.W.2d at

264); see Del Lago, 307 S.W.3d at 787–88 (holding that negligence in premises

29

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). In such circumstances, the property owner has a duty to

“either adequately warn of the dangerous condition or make the condition

reasonably safe.” Del Lago, 307 S.W.3d at 771 (quoting TXI Operations, L.P. v.

Perry, 278 S.W.3d 763, 765 (Tex. 2009)).

Cases brought against a property owner/occupier either on a negligent

activity theory or on a premises defect theory incorporate the elements of control

and duty. But control and duty are defined differently for these two theories of

liability.

In Moritz, the supreme court explained the concept of control in a negligent

activity case, stating:

Generally, an owner or occupier does not owe a duty to ensure that

independent contractors perform their work in a safe manner. But one

who retains a right to control the contractor’s work may be held

liable for negligence in exercising that right. This right to control

may be expressed by contract or implied by conduct. . . .

[A] defendant’s duty “is commensurate with the control it

retains over the independent contractor’s work.” Thus, it is not

enough to show that the defendant controlled one aspect of [the

plaintiff’s] activities if his injury arose from another.

Moritz, 257 S.W.3d at 214 (quoting Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d

778, 783 (Tex. 2001)) (emphasis added in Moritz). This duty was adopted into

Texas law from the Restatement (Second) of Torts section 414, which provides:

30

One who entrusts work to an independent contractor, but who retains

the control of any part of the work, is subject to liability for physical

harm to others for whose safety the employer owes a duty to exercise

reasonable care, which is caused by his failure to exercise his control

with reasonable care.

Harrison, 70 S.W.3d at 783 (quoting RESTATEMENT (SECOND) OF TORTS § 414

(1965)); see also Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex. 1985).

The right to control may be shown either by explicit contractual assignment,

which is generally a question of law for the court, or by the actual exercise of

control, which is generally a question of fact for the jury. Shell Oil Co. v. Khan,

138 S.W.3d 288, 292 (Tex. 2004); see also Harrison, 70 S.W.3d at 783 (holding

that duty to ensure that independent contractor performs its work in safe manner

arises “if the general contractor retains some control over the manner in which the

independent contractor performs its work”).

The Moritz court distinguished the duty of a premises owner/occupier in a

premises defect case from the duty of a premises owner who retains control over

any part of the work on a worksite for the safety of those working there, stating:

Generally, a landowner is liable to employees of an independent

contractor only for claims arising from a pre-existing defect rather

than from the contractor’s work, and then only if the pre-existing

defect was concealed: “With respect to existing defects, an owner or

occupier has a duty to inspect the premises and warn of concealed

hazards the owner knows or should have known about.” . . . [T]he

landowner’s duty is limited [to concealed hazards] because control is

being turned over to someone else. . . .

31

257 S.W.3d at 215 (quoting Khan, 138 S.W.2d at 295) (emphasis added); see Cnty.

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

of premises defect liability claim, that county assumed sufficient control over state-

owned causeway because it had maintenance contract with state that included

responsibilities over causeway’s streetlight system and holding that “[t]he 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”).

Here, Question No. 3 in the jury charge asked whether the listed defendants,

including Oncor, “exercised[d] control over the manner in which Marco Murillo’s

work in the transformer was performed.” Question No. 4 asked whether any of the

listed defendants were negligent. “Negligence” was defined as “failure to use

ordinary care”; “proximate cause” was defined as “a substantial factor that brings

about an event and without which the event would not have occurred”; and an

occurrence was described as “foreseeable” if “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.”

The trial court thus submitted the case to the jury on Murillo’s negligent

activity theory of liability and not on the defendants’ premises defect theory, and

the charge reflects the pattern jury charge for submission of a general negligence

32

case to the jury on a broad-form liability question. Therefore, in my view, this

Court should have reviewed the sufficiency of the evidence to support the jury’s

findings that Oncor had a duty to use ordinary care in exercising control over the

distribution of electricity to the transformer where Murillo was injured while doing

his work and that it breached that duty by its contemporaneous negligent activity,

directly and foreseeably causing Murillo’s injuries. But it did not. If it had done

so, it would necessarily have concluded that the evidence was both legally and

factually sufficient to support the jury’s findings regarding Oncor based on the

negligence theory of liability submitted to it.

B. Legal and Factual Sufficiency of the Evidence to Support the

Jury’s Verdict

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

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

33

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). “The final

test for legal sufficiency must always be whether the evidence at trial would enable

reasonable and fair-minded people to reach the verdict under review.” Del Lago,

307 S.W.3d at 770 (quoting Wilson, 168 S.W.3d at 827).

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 fact finder’s province to resolve conflicting evidence, we must

assume that it resolved all conflicts in accordance with the verdict if reasonable

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

34

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. Sufficiency of the Evidence to Support the Jury’s Findings

The evidence shows that Oncor’s involvement with the demolition and

utility removal project went far beyond its merely distributing electricity through

its electric cables and transformers to its customer, Next Block, under an electricity

provider’s contract. It shows that Oncor both contractually and actually retained

control of the safe distribution of electricity to its transformers on the worksite

until “the completion of removal” of all utilities from the site. Oncor not only

generally controlled the safe distribution of electricity to Next Block; it retained

control over the safety conditions of Murillo’s and others’ work in the demolition

and utility removal process in general and in the transformer on Pad B in

particular. It therefore had a duty, commensurate with that retention of control, to

use ordinary care to ensure that electricity would not be running through a live

cable when Murillo, or anyone else, entered the transformer box on Pad B to

disconnect the cable as part of the salvage and removal process.

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 the electricity to that area, including neighboring Pad A, so that

removal of the electrical utilities from the demolished Windfall Apartments could

35

proceed safely. And it is undisputed that Oncor continued to distribute electricity

to that cable to the transformer on Pad B over the next six weeks, creating a

dangerous risk of electrocution for any worker who entered the transformer box to

disconnect the cable so that the transformer could be removed from the site.

There was also sufficient evidence from which the jury could reasonably

have concluded that the customary practice on the site was for AAA and Murillo—

not Oncor’s own workers—to disconnect the deactivated electricity cables from

the transformers inside the unlocked and open transformer boxes whenever they

got to them so that they could salvage the copper wiring in the cables and Oncor

could then remove its cables and transformers from the site. Although some Oncor

employees testified that Oncor’s customary practice was to disconnect its own

electricity cables, salvage their materials, and remove the transformers themselves

all on the same day, this testimony was contradicted by that of Hagmeier, Davis,

and other Oncor employees who testified that Oncor’s standard procedure for de-

energizing and removing the transformers from the worksite was not followed on

this project. Shipp and Oncor employees testified that Oncor did not commit to a

particular time frame for completing the removal of the transformers, but that the

work was usually done within six to seven weeks, depending on the existence of

other, more urgent maintenance, weather, and other factors. This evidence must be

36

viewed in the light most favorable to Murillo and the contrary evidence

disregarded. See Wilson, 168 S.W.3d at 822.

Likewise, although some Oncor employees testified that the transformer

boxes were always kept locked, Oncor employee Albanese testified to cutting off

locks on the transformers with bolt cutters when he “had to,” and Murillo testified

that when he reached each transformer box, the locks were already removed and he

did not remove the locks himself. Murillo also testified that, on numerous previous

occasions during the utility removal process, Oncor employees waited for Murillo

and the AAA crew to unbolt the cables from the transformers before they lifted and

hauled away Oncor’s transformer boxes. This evidence too must be viewed in the

light most favorable to Murillo, not Oncor, and all contrary evidence disregarded.

See id.

Viewing the evidence in the light most favorable to the verdict, as the

standard of appellate review requires, I would conclude, on the basis of this record,

that the evidence was legally and factually sufficient to support the jury’s finding,

in response to Question No. 3, that Oncor “retain[ed] some control over the manner

in which Marco Murillo’s work in the transformer was performed” as the party that

controlled the flow of electricity to the transformer on Pad B during the cable

disconnection, material salvage, and utility removal process, in the course of which

Murillo was injured.

37

I would also conclude that the evidence is sufficient to support the jury’s

finding, in response to Question No. 4, that Oncor had a duty of ordinary care that

it breached by negligently failing to de-energize both cables running from the

utility pole servicing the transformer on Pad B when it sent a crew to the site for

that purpose and by negligently continuing to distribute electricity to the

transformer on Pad B through that cable during the utility removal process after it

closed Next Block’s account, directly and foreseeably causing Murillo to be

severely injured when he entered the transformer box on Pad B to disconnect it.

See Del Lago, 307 S.W.3d at 777 (premises owner had duty to use degree of care

in performing activities that would be used by owner or occupier of ordinary

prudence under same or similar circumstances).

The jury was the sole judge of the witnesses’ credibility and alone was

charged with resolving conflicting evidence; it was entitled to believe one witness

over another; and this Court cannot impose its own opinion to the contrary. See

Wilson, 168 S.W.3d at 819. Because it was the jury’s province to resolve

conflicting evidence, we must assume that it resolved all conflicts in accordance

with the verdict if reasonable persons could do so. See id. Viewing the evidence

in the light most favorable to Murillo, I would conclude that the evidence of

Oncor’s negligence was such that reasonable and fair-minded people could have

reached the verdict under review and that the evidence was, therefore, legally

38

sufficient. See Del Lago, 301 S.W.3d at 770; Wilson, 168 S.W.3d at 827.

Likewise, I would conclude that the jury’s findings on Oncor’s liability were not so

contrary to the weight of the evidence as to make them clearly wrong and unjust,

and therefore the evidence was also factually sufficient to support the verdict. See

Arias, 265 S.W.3d at 468.

The en banc majority, however, construes Oncor’s duty to be the duty of a

premises owner in a premises defect case to inspect the premises and warn of or

remedy hidden dangers. Thus it does not address the sufficiency of the evidence to

support the charge the jury was given. Without considering the duty of a premises

owner/occupier to use ordinary care in exercising control it has retained over an

aspect of the manner in which a workman’s work is safely performed, the en banc

majority denies that there is any evidence that Oncor had any duty to Murillo other

than the duty of a premises owner to the general public. It opines, “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 the

Pad B transformer was either energized or de-energized.” Slip Op. at 19. But this

is not a correct representation of the record, as Murillo does point to such evidence,

as discussed above.

The en banc majority also opines, “No evidence supports the jury’s finding

that Oncor exercised or retained any control over Murillo’s work,” supporting this

39

claim with the statement that “Oncor employees never even spoke to anyone on the

AAA crew.” Id. But testimony by an Oncor employee that Oncor employees

never spoke to anyone on the AAA crew is irrelevant to the question of whether

Oncor had and breached a duty of ordinary care in controlling the distribution of

electricity to the transformer on Pad B where Murillo was electrically injured while

performing his material salvage tasks. And it ignores the evidence cited above of

Oncor’s contractual assumption of ongoing control over the distribution of

electricity to the site until “the completion of removal” of utilities—including its

meters, electricity cables, transformers, and transformer boxes—from the property

and its actual control of the distribution of electricity to maintain safe working

conditions during the utility removal operations on the worksite, in the course of

which Murillo was injured.

Finally, the en banc majority claims that “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.” And it concludes, “Without

evidence of such acts, Oncor, as an electricity provider, had no general duty to

recognize and prevent electrical contact during a construction project.” Slip Op. at

20. But Murillo never claimed that Oncor energized the transformer while he was

working. He claimed, and the evidence clearly showed, that Oncor failed to de-

energize the transformer on Pad B on June 12 and continued to distribute

40

electricity to it over the next six weeks during the utility removal project for which

it had agreed to control the electricity. Nor was the negligence question submitted

to the jury on a theory of Oncor’s duty as an electricity provider to recognize and

prevent electrical contact. Questions 3 and 4 asked whether Oncor (like the other

defendants) had “exercise[d] . . . some control over the manner in which Marco

Murillo’s work in the transformer was performed” and whether its negligence

“proximately cause[d] the injury in question” as “a contemporaneous result of

some activity that of that . . . entity.”

I find the evidence more than sufficient to support the jury’s findings of

Oncor’s liability on a general negligence theory when the evidence is viewed in the

light most favorable to Murillo, as it must be. The en banc majority’s

determination that the evidence is insufficient to support Oncor’s theory of the

case when the evidence is viewed in the light most favorable to Oncor on an

unsubmitted charge is immaterial to the charge as given. Therefore, I turn to the

en banc majority’s argument that the charge was improperly submitted on broad-

form negligence and that the judgment of the trial court on the jury’s verdict must

be overturned as a matter of law and judgment rendered in favor of Oncor.

Jury Charge Error

In its third issue, Oncor contends that Murillo’s exclusive remedy against it

was to bring a premises defect liability claim under the Civil Practice and

41

Remedies Code Chapter 95. It also contends that Murillo waived that claim by not

securing findings on the essential elements of a premises defect claim against a

property owner set out in Chapter 95, including Oncor’s control of the premises

and its actual knowledge and failure to warn of the dangerous condition that caused

the plaintiff’s injury. Oncor argues that, as a defendant on a premises defect

liability theory, 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 to keep its premises safe. It therefore contends that judgment must

be rendered in its favor. The en banc majority agrees and renders judgment in

favor of Oncor.

The en banc majority, accepting Oncor’s argument, holds that the case as to

Oncor could only have been submitted to the jury as a case against an occupier of

land for failure to warn of or remedy an existing hidden defect of which it knew

and not as a negligent activity case. Thus, it holds that the trial court committed

harmful error by failing to submit to the jury instructions defining Oncor’s duty to

Murillo in a way that would have allowed the jury to consider Oncor’s warnings to

those who came near its energized transformers and the reasonable efforts it made

to keep its premises safe. That is, it holds that the trial court erred in failing to

substitute the defendants’ theory of liability for Murillo’s and, therefore, the

42

judgment must be reversed and rendered in favor of Oncor. In my view, in so

doing, the en banc majority accepts the defendants’ invitation to “blur the

distinction” between negligent activity and premises defect liability, and, indeed, to

eliminate the latter as a theory of liability for a premises owner/occupier in direct

contravention of the Texas Supreme Court’s directives in Del Lago, Shumake, and

Keetch; and it implicitly invites the supreme court to overrule those cases. See Del

Lago, 307 S.W.3d at 776; Shumake, 199 S.W.3d at 284; Keetch, 845 S.W.2d at

264.

I therefore turn to whether there was reversible error in the charge and what

it means to both premises liability law and the law governing jury charge error to

conclude that there was.

A. The Jury Charge in Negligence and Premises Defect Cases

Texas Rule of Civil Procedure 277 mandates broad-form submission of jury

questions “whenever feasible.” TEX. R. CIV. P. 277. The trial court has

considerable discretion in determining proper jury instructions. Thota v. Young,

366 S.W.3d 678, 687 (Tex. 2012). “An instruction is proper if it (1) assists the

jury, (2) accurately states the law, and (3) finds support in the pleadings and

evidence.” Id. (quoting La.-Pac. Corp. v. Knighten, 976 S.W.2d 674, 676 (Tex.

1998)).

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When a trial court submits a defective issue to the jury without objection, the

appellate court reviews the sufficiency of the evidence against the questions and

instructions that were actually given; not against questions and instructions never

requested. Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). An appellate court

does not reverse a judgment for charge error unless the error was harmful “because

it ‘probably caused the rendition of an improper judgment’ or ‘probably prevented

the petitioner from properly presenting the case to the appellate courts.’” Thota,

366 S.W.3d at 687 (quoting TEX. R. APP. P. 44.1(a), 61.1).

1. Submission of the Charge in Negligent Activity and Premises Defect

Cases

As in other cases, a trial court has great discretion in submitting the jury

charge in negligent activity and premises defect cases. Tex. Dep’t of Transp. v.

Ramming, 861 S.W.2d 460, 463 (Tex. App.—Houston [14th Dist.] 1993, no writ);

see Thota, 366 S.W.3d at 687. This discretion is subject to Rule 277’s mandate of

broad-form submission “whenever feasible.” Keetch, 845 S.W.2d at 266; see TEX.

R. CIV. P. 277. It is also “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.” Ramming, 861

S.W.2d at 463; see TEX. R. CIV. P. 278.

“Where . . . the alleged facts support . . . an on-going activity [or]

contemporaneous injury theory, then the case need not be presented to the jury in

44

premises liability terms. Rather, a general negligence question is appropriate and

sufficient.” Ramming, 861 S.W.2d at 465.

In a premises defect case, as in a negligent activity case, “[t]he plaintiff may

submit [the] cause of action to the jury through a question about the [defendant]’s

right to control the defect-producing work, to establish a duty, and a broad-form

negligence question.” Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523,

529 (Tex. 1997). However, in a premises defect case, unlike a negligent activity

case, instructions incorporating the premises defect elements set out in Corbin v.

Safeway Stores, Inc., 648 S.W.2d 292 (Tex. 1983), must accompany the questions.

Id.

The supreme court explained the additional requirement of instructions in a

premises defect case in Corbin by reference to the Restatement (Second) of Torts

section 343, which, it stated, summarized “the duty of reasonable care that an

occupier of premises owes to invitees.” 648 S.W.2d at 295 (citing RESTATEMENT

(SECOND) OF TORTS § 343 (1965)). This duty requires an occupier with “actual or

constructive knowledge of any condition on the premises that poses an

unreasonable risk of harm to invitees . . . to take whatever action is reasonably

prudent under the circumstances to reduce or to eliminate the unreasonable risk

from that condition.” Id. The duty of an owner/occupier under a premises-defect

theory of liability thus stands in clear contrast to the duty of an owner/occupier

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under a negligence theory, which derives from a different section of the same

Restatement (Second) of Torts, section 414. See Harrison, 70 S.W.3d at 783

(“One who entrusts work to an independent contractor, but who retains the control

of any part of the work, is subject to liability for physical harm to others for whose

safety the employer owes a duty to exercise reasonable care which is caused by his

failure to exercise this control with reasonable care.”) (quoting RESTATEMENT

(SECOND) OF TORTS § 414 (1965)).

The Corbin court distinguished the duty of a premises occupier from “a

simple negligence action,” stating that “Section 343 simply tailors the traditional

test of the conduct of a reasonably prudent person to a specific category of

defendants, namely, premises occupiers.” 648 S.W.2d at 295. Thus, “an

occupier’s liability to an invitee depends on whether he acted reasonably in light of

what he knew or should have known about the risks accompanying a premises

condition, not on whether a specific set of facts or a specific breach of duty is

established.” Id. Accordingly, the Corbin court set out the premises defect

elements that distinguish a premises defect case against an owner/occupier from a

general negligence case in which a specific set of facts and a specific breach of

duty are established, namely, (1) “[a]ctual or constructive knowledge of some

condition on the premises by the owner/operator” that (2) “posed an unreasonable

risk of harm”; (3) the owner/operator’s failure to “exercise reasonable care to

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reduce or eliminate the risk”; and (4) proximate cause of the plaintiff’s injuries.

Keetch, 845 S.W.2d at 264 (quoting Corbin, 648 S.W.2d at 296).

Subsequently, in Olivo, after distinguishing the duty of a premises

owner/occupier on a negligent activity theory from that of an owner/occupier on a

premises defect theory, the supreme court held that “[b]ecause premises defect

cases and negligent activity cases are based on independent theories of recovery, a

simple negligence question, unaccompanied by the Corbin elements as instructions

or definitions, cannot support a recovery in a premises defect case.” 952 S.W.2d at

529.

Given these distinctions, I turn to whether the trial court erred by refusing to

submit the case as to Oncor on a premises defect theory, as requested by the

defendants, rather than on a general negligence theory, as requested by Murillo.

2. Propriety of the Negligent Activity Charge Submitted in This Case

In my view, this case falls squarely under the law governing the negligent

activity of a premises owner/occupier as set out in Moritz, Kahn, Harrison, and,

most pertinently on the facts, Ramming—cases the majority fails to consider or

addresses only to dismiss.

In Ramming, a car accident occurred at an intersection where the defendant’s

employee had turned off a traffic signal for maintenance and testing activities. See

861 S.W.2d at 463. The defendant, the Texas Department of Transportation

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(“TexDot”), was found negligent for its act of turning off the traffic signals at an

intersection where its “test/maintenance activity was ongoing at the time of the

accident,” proximately causing the plaintiff to be injured. Id. at 465.

Just as here, the trial court in Ramming refused to submit requested

premises-defect instructions to the jury along with its broad-form negligence

question. It 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 non-contemporaneous act of [the property owner in control].”

Id. In other words, a premises defect occurs when the defendant’s negligent

activity, or negligent exercise of its control over an aspect of the activities on the

site, is not the cause in fact of the plaintiff’s injury because it has turned over

control to someone else. See Del Lago, 307 S.W.3d at 776 (premises defect claim

is not based on defendant’s malfeasance, but on its nonfeasance); Moritz, 257

S.W.3d at 215 (“[T]he landowner’s duty is limited [to concealed hazards] because

control is being turned over to someone else. . . .”); Shumake, 199 S.W.3d at 284

(stating that “a premises defect claim is based on the property itself being unsafe,”

not on defendant’s activity); Urena, 162 S.W.3d at 551 (discussing causation and

stating, “If the defendant’s negligence merely furnished a condition that made the

injuries possible, there can be no cause in fact”).

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In both Ramming and this case, the premises occupier’s negligent activity

was a direct and foreseeable cause of the plaintiff’s injury. Like in Ramming,

Murillo was not injured because a hidden dangerous condition occurred as a result

of equipment failure, act of God, third party interference, or the non-

contemporaneous act of the easement owner. Just as Ramming was injured when

he entered the intersection because the defendant, TexDot, had shut off the light at

that intersection while it performed maintenance and testing activities, so, here,

Murillo was injured while working to disconnect a transformer to which Oncor had

agreed to control the distribution of electricity during the utility removal process

and to which it continued to control the electricity as Murillo and others

disconnected the electricity cables, salvaged their wiring, and removed the

transformers from the site.

Notably, the Ramming court specifically distinguished the seminal premises

defect case of Keetch v. Kroger Co., relied upon here by Oncor and the majority to

show that this is a premises defect case and cannot be a negligent activity case. In

Keetch, the Texas Supreme Court held that because there was no contemporaneous

activity the case should have been submitted to the jury on a premises defect

theory. 845 S.W.2d at 264. The Ramming court noted that Keetch slipped and fell

in a store from water on the floor thirty minutes after the store sprayed water on the

plants. 861 S.W.2d at 465 (citing Keetch, 845 S.W.2d at 264). It observed that, in

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contradistinction to its own 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) (emphasis

added). 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, there was no time gap between Oncor’s negligent

distribution of electricity to the transformer, Murillo’s reaching into the

transformer box to disconnect the cable, and Murillo’s electrical injury. Murillo

was not injured by the hidden danger of properly protected electrical wires in a

utility easement about which Oncor had previously warned, as required for this to

be a premises defect case. See Moritz, 257 S.W.3d at 214–15; Khan, 138 S.W.3d

at 295. It is, in my view, Ramming—and not Keetch—that is the relevant authority

in this case, along with Moritz, Kahn, and Harrison.

The en banc majority, however, because it discounts the possibility ab initio

that Murillo’s injuries were caused by Oncor’s malfeasance, relies on the premises

defect cases of Clayton W. Williams, Jr., Inc. v. Olivo and Houston Lighting &

Power v. Brooks to support its conclusion that this is a premises defect case in

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which Oncor fully discharged the only duty it could have had to Murillo as a

utilities easement owner by warning of the danger of electricity in the transformer

boxes. However, the facts in those cases too, as in Keetch, are wholly different

from the facts in this case. Neither Olivo nor Brooks involved a premises owner’s

failure to exercise ordinary care over an aspect of the activities on the premises that

it controlled. Both involved a one-time, non-ongoing event that created a

dangerous condition on the property not attributable to the negligent activity of the

premises owner/occupier. Therefore, neither is applicable.

In Olivo, an independent contractor, Olivo, suffered an injury after falling

from a drill pipe rack onto drill thread protectors left on the ground, and he sued

the general contractor, Williams, on a general negligence theory. 952 S.W.2d at

526–27. The supreme court expressly stated that a general contractor, such as the

defendant Williams, who is in control of premises “is charged with the same duty

as an owner or occupier.´ Id. at 527. And it stated that such a person or entity

“may be liable for 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.” Id. (citing Redinger, 689 S.W.2d at 427).The 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. The court held that the presence of the drill

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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, Williams].” Id. at 528.

The supreme court opined that Williams, the general contractor, could have

been found liable to Olivo on a negligent activity theory if it had retained the right

to control an aspect of Olivo’s work or had actually 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.

However, contrary to this case, there was no evidence of Williams’ negligent

exercise of control over the part of Olivo’s work that created the dangerous

condition.

Here, there was ample evidence of Oncor’s negligent exercise of control

over its distribution of electricity to the worksite that resulted in its provision of

electricity to a transformer on Pad B during the cable disconnection, copper

salvage, and transformer removal process on the worksite. Oncor had a contractual

and a common-law duty to disconnect the electricity to the site as work proceeded,

using the ordinary care of a prudent utility easement owner in control of electricity

to the site so that workmen could safely enter the easement where its utilities were

located, disconnect the boxes from the de-energized electric cables, salvage their

wiring, and leave the transformers ready for Oncor’s ongoing removal of its

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utilities from the site. Instead of performing this work with ordinary care, Oncor

negligently failed to disconnect one of the live cables and negligently continued to

distribute electricity to the transformer on Pad B, directly and foreseeably causing

Murillo’s injury when he attempted to disconnect the cable.

The circumstances, allegations, and evidence in Olivo are thus entirely

unlike those in this case. Olivo’s claim was clearly a claim that he was injured by

a dangerous condition of the premises: drill thread protectors previously left on the

ground by his own employer, an independent contractor, not by the general

contractor he sued, and Olivo made no showing that Williams, the general

contractor, negligently exercised control over any aspect of his work on the

premises. Thus, the only duty imputable to Williams was the duty to warn of a

hidden dangerous condition of which it was aware, not the duty to exercise its

control of an aspect of the manner of work on the workplace in a safe manner. See

Olivo, 952 S.W.2d at 527-28. But Olivo neither pled nor showed that Williams in

its capacity as general contractor in control of the premises was aware of the drill

protectors on the ground and should have either remedied or warned about the

danger. Id. at 526–27.

Brooks, likewise, was clearly a premises defect case, not a negligent activity

case. The plaintiff made no showing that the defendant power company h ad

assumed a duty of control over any aspect of the construction work taking place on

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the worksite where the plaintiff’s injuries occurred or that it continued to distribute

electricity to the site in disregard of the danger to the workmen. Brooks, 336

S.W.2d 603, 605–06 (Tex. 1960). In that case, 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 Brooks, 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

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

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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.

The circumstances here are the opposite. Oncor had exclusive control of the

supply of electricity to the worksite. It had been asked and had agreed to remove

the last remaining electricity distribution services to the site, including Pad B, so

that the type of work Murillo and others were doing—disconnecting the de-

energized cables from the transformers so that the wiring could be salvaged and

Oncor could subsequently remove the transformer boxes—could be safely

performed. It had sent a crew to the site for that purpose. However, that crew

disconnected only one of the two cables to the area where Murillo was injured, and

Oncor negligently continued to distribute electricity through one of the two cables

to the transformer on Pad B during the utility removal process being conducted by

its own employees and AAA’s, proximately causing Murillo’s severe electrical

injuries when he touched the live electric cable while attempting to disconnect it.

The material circumstances of this case are thus the opposite of those in

Brooks, and do not support Oncor’s claims that, like the electric utilities easement

owner in Brooks, it had no duty to Murillo beyond the duty of nonfeasance of a

utilities easement owner to the general public and that it committed no negligent

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acts through its own malfeasance that foreseeably and directly caused Murillo’s

injury.

None of the cases cited by Oncor and the en banc majority support the

claim—essential to the en banc majority’s holding that this is a premises defect

case that was improperly submitted as a negligent activity case—that Oncor’s

malfeasance in failing to disconnect a live electric cable running to the transformer

on Pad B was not a cause in fact of Murillo’s injury and is irrelevant to the proper

disposition of this case. See Urena, 162 S.W.3d at 551 (stating that if defendant’s

negligence merely furnished condition that made injury possible, there can be no

cause in fact). None of them refute the claim that this case is properly

characterized as a negligent activity case in which Oncor’s own ongoing negligent

exercise of its control over the electricity to the transformer proximately caused

Murillo’s electrical injury. See Ramming, 861 S.W.2d at 465–66; cf. Olivo, 952

S.W.2d at 527–28.

Nevertheless, Oncor argues that the charge was erroneous and probably

caused rendition of an improper judgment against it, and the en banc majority

agrees. I turn, therefore, to Oncor’s allegations of jury charge error.

B. Oncor’s Claims of Jury Charge Error

Texas Rule of Civil Procedure 278 provides that the trial court must “submit

the questions, instructions and definitions in the form provided by Rule 277, which

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are raised by the written pleadings and the evidence.” TEX. R. CIV. P. 278; Harris

Cnty. v. Smith, 96 S.W.3d 230, 236 (Tex. 2002). It continues, “A judgment shall

not be reversed because of the failure to submit other and various phases or

different shades of the same question.” TEX. R. CIV. P. 278. “[I]f the trial court has

‘to resolve a legal issue before the jury could properly perform its fact-finding

role[,] . . . a party must lodge an objection in time for the trial court to make an

appropriate ruling without having to order a new trial.’” Osterberg, 12 S.W.3d at

55 (quoting Holland v. Wal-Mart Stores, Inc., 1 S.W.3d 91, 94 (Tex. 1999)).

Additionally, Rule 274 provides that an objecting party “must point out

distinctly the objectionable matter and the grounds of the objection”; “[a]ny

complaint as to a question, definition, or instruction, on account of any defect,

omission, or fault in pleading, is waived unless specifically included in the

objections.” TEX. R. CIV. P. 274. Correspondingly, Texas Rule of Appellate

Procedure 33.1 requires that a complaining party (1) make a timely objection to the

trial court that “state[s] the grounds for the ruling that the complaining party

[seeks] from the trial court with sufficient specificity to make the trial court aware

of the complaint, unless the specific grounds were apparent from the context” and

(2) obtain a ruling on his objection. See TEX. R. APP. P. 33.1.

I, therefore, address Oncor’s complaints about the charge to determine

whether the complaints properly allege jury charge error and preserve it for appeal.

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1. Error in the Failure to Include Premises Defect Questions,

Definitions, and Instructions

Oncor argues that the trial court erred by failing to include in the jury charge

the premises defect definitions and instructions that Oncor and the other defendants

requested be included in the broad-form question on control, Question 3, and the

broad-form liability question on negligence, Question 4, which together asked the

jury to determine whether the listed defendants controlled an aspect of the manner

in which Murillo’s work was performed in the transformer where he was injured

and whether they failed to use ordinary care in exercising that control, proximately

causing Murillo’s injury

Oncor argues that, as a utility easement owner/occupier, it had no duty to

recognize and prevent electrical contact during a construction project. It had only

the duty to warn of the danger of electricity inside a transformer box, which was a

dangerous condition of the premises. It also argues that its failure to disconnect the

electricity running to the transformer on Pad B merely furnished a condition that

made Murillo’s injury possible; it did not cause it. Murillo’s injury was caused by

his own actions in attempting to disconnect the live cable to the transformer. Thus,

its negligence was not the cause in fact of Murillo’s injuries. See Urena, 162

S.W.3d at 551 (discussing causation in negligence context and stating, “If the

defendant’s negligence merely furnished a condition that made the injuries

possible, there can be no cause in fact”). But the argument that Murillo’s injury

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was caused by an independent and intervening cause—not by Oncor’s negligence

or as a result of any foreseeable consequence of Oncor’s negligence—is exactly

what the jury would have been asked to decide had Oncor sought the proper

inferential rebuttal instruction set out in chapter 3 of the PJCs on general

negligence.

Likewise, at the charge conference, the defendants, including Oncor, sought

to submit their defensive theory of premises defect liability to disprove the

essential duty element and the causation element of Murillo’s theory. That is, they

sought to replace the definition of the duty owed by the defendants under a

negligent activity theory with the duty owed by a property owner on a premises

defect theory and to give the jury instructions that would permit it to find that

Murillo’s injury was caused not by Oncor’s negligent distribution of electricity to

the transformer on Pad B but by Murillo’s own trespass into an electrified

transformer about which he had been properly warned by Oncor’s standard

warnings of the danger of live electricity posted on the transformer box and the

transformer inside it. Thus, the changes and additions the defendants sought to

make to the broad-form control question and negligence question, Questions Nos.

3 and 4, were inferential rebuttal issues—issues that require the plaintiff to prove

the nonexistence of an affirmative defense or that “seek[] to disprove the existence

of an essential element submitted in another issue.” See Bed, Bath & Beyond, Inc.

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v. Urista, 211 S.W.3d 753, 756 (Tex. 2006) (quoting Select Ins. Co. v. Boucher,

561 S.W.2d 474, 477 (Tex. 1978)).

Unlike alternate theories of liability and damage elements, however, Rule

277 not only mandates broad-form submission “whenever feasible,” it also

prohibits the submission of inferential rebuttal questions. TEX. R. CIV. P. 277.

“[I]nferential rebuttal issues cannot be submitted in the jury charge as separate

questions and instead must be presented through jury instructions.” Urista, at 757

(citing TEX. R. CIV. P. 277) (emphasis added).

Yet Oncor never sought to define its duty to Murillo in the charge as the

duty of a premises owner to warn of concealed hazards of which it was aware,

other than as the primary definition of the duty of control in Question 3, which the

defendants asked be submitted to the jury instead of the duty of ordinary care in

controlling an aspect of the manner in which Murillo did his work in the

transformer. Nor did it seek inferential rebuttal instructions that would have

permitted the jury to find that its negligence was not the cause in fact of Murillo’s

injury, but that his injury was caused by his own trespass into the transformer box.

And it failed to make this request for inferential rebuttal instructions even though

Murillo repeatedly pointed out at the charge conference, correctly, that defensive

theories, such as Oncor’s, can only be submitted by inferential rebuttal instructions,

and not by questions. See TEX. R. CIV. P. 277; Urista, 211 S.W.3d at 756; Comm.

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on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General

Negligence & Intentional Personal Torts ch. 3 (2012) (containing inferential

rebuttal instructions). It is instructive to consider why Oncor did not seek these

instructions.

Had Oncor sought inferential rebuttal instructions on its defensive theory of

premises defect liability, and had the trial court granted this request and modified

the instructions in Question 4 to permit the jury to find that a new and independent

cause of Murillo’s injury—Murillo’s trespass into Oncor’s easement to attempt to

disconnect the live cable—broke the causal connection between Oncor’s

negligence and Murillo’s injury, it would also have had to instruct the jury that

Murillo’s injury had to be an unforeseeable consequence of Oncor’s own negligent

activity.

The problem was that no such instruction could be reasonably supported by

the facts of the case. Therefore, all of the warnings set out in the PJCs on general

negligence for improper submission of a case to the jury would have come into

play. These include the warning that “giving multiple instructions on every

possible rebuttal inference has the potential to skew the jury’s analysis.” Comm.

on Pattern Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General

Negligence & Intentional Personal Torts ch. 3 note (2012) (quoting Dillard v. Tex.

Elec. Coop., 157 S.W.3d 429, 433 (Tex. 2005)); see id. PJC 3.1 cmt. “Caveat.”

61

And they include the warning in the comment to PJC 3.1 that where there is no

evidence that the occurrence was caused by a new and independent cause—a cause

that in a non-foreseeable way destroys the causal connection between the negligent

act and the plaintiff’s injury—submission of an inferential rebuttal instruction on

the new and independent cause “is improper and may be reversible error.” Id. PJC

3.1 cmt. (citing Galvan v. Fedder, 678 S.W.2d 596, 598–99 (Tex. App.—Houston

[14th Dist.] 1984, no writ), and James v. Kloos, 75 S.W.3d 153, 162–63 (Tex.

App.—Fort Worth 2002, no pet.)).

I would hold that Oncor waived its objection that the case should have been

submitted to the jury on a premises defect theory by failing to seek proper

inferential rebuttal instructions. But, even if it did not, the trial court did not err in

refusing to submit the defendants’ request for premises defect instructions.

2. Error in the Jury’s Finding that Oncor’s Negligent Activity Was

Contemporaneous with Murillo’s Injury

Oncor also contends in this appeal that it cannot be held liable to Murillo on

a negligence theory of liability because its failure to turn off an existing energized

electrical transformer on June 12 was not contemporaneous with Murillo’s injury

on July 25; thus, the evidence is legally insufficient to support the jury’s verdict

finding it liable to Murillo for negligence. Without evidence of contemporaneous

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

[its] failure to take measures to make the property safe,” and not an activity “based

62

on affirmative, contemporaneous conduct by [Oncor] that caused the injury.” See

Del Lago, 307 S.W.3d at 776. Therefore, Murillo’s only claim against it is a

premises-defect claim.

Oncor thus seeks a legal ruling on contemporaneity from this Court that it

failed to seek from to the trial court prior to the submission of the charge. See

Osterberg, 12 S.W.3d at 55 (if trial court has to resolve legal issue before jury

could properly perform its fact-finding role, party must lodge objection in time for

trial court to make appropriate ruling without having to order new trial). Instead,

in the trial court, Oncor joined the defendants’ request that the jury decide whether

the negligence of the listed defendants was contemporaneous with Murillo’s injury,

and the trial court gave the instruction that the jury was to answer “Yes” to the

question whether a listed defendant’s negligence “proximately cause[d] the injury

in question . . . only if [it found] that Marco Murillo was injured by or as a

contemporaneous result of some activity of that person or entity.”

Thus, I would hold that Oncor waived any objection to the charge based on

its claim that its negligent activity was not contemporaneous with Murillo’s injury.

See TEX. R. CIV. P. 278 (providing that trial court must submit questions,

instructions, and definitions raised by pleadings and evidence in form provided by

Rule 277); TEX. R. CIV. P. 274 (providing that objecting party “must point out

distinctly the objectionable matter and the grounds of the objection” and that

63

“[a]ny complaint as to a question, definition, or instruction, on account of any

defect, omission, or fault in pleading, is waived unless specifically included in the

objections.”).

I would hold that the case was properly submitted on broad-form negligent

activity questions as to the liability of all defendants and that Oncor does not

identify any reversible error in the charge. See TEX. R. CIV. P. 277 (requiring that

“the court shall, whenever feasible, submit the cause upon broad-form questions”);

see also Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990)

(interpreting “whenever feasible” as mandating broad-form submission “in any or

every instance in which it is capable of being accomplished”); Comm. on Pattern

Jury Charges, State Bar of Tex., Tex. Pattern Jury Charges: General Negligence &

Intentional Personal Torts PJC 4.1 cmt. (2012).

C. The En Banc Majority’s Reliance on Premises Defect Cases to

Support its Holding Rendering Judgment in Favor of Oncor

Murillo sought submission only of his negligent activity theory of liability to

the jury, and his claim succeeds or fails on that theory, not on an alternative theory

of how his claim might have been submitted on a hypothetical charge that was

neither properly sought nor given. Neither Oncor nor the en banc majority has

identified any error in the actual charge, and the evidence is, in my view, plainly

sufficient to support the jury’s findings. Therefore, I can find no basis to reverse

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the trial court’s judgment for jury charge error, much less to render judgment in

favor of Oncor.

The en banc majority, however, concludes as a threshold matter that the trial

court committed harmful error by failing to submit the case to the jury—at least as

to Oncor—on the defendants’ premises defect defense rather than on Murillo’s

general negligence theory of liability. Thus, it does not consider whether Oncor

had the duty set out in the charge—namely a duty to Murillo to use ordinary care

in controlling the distribution of electricity to the transformer on Pad B where

Murillo was injured while attempting to disconnect the transformer from a live

cable—or whether Oncor could have breached its duty by its negligent exercise of

such a duty. See Moritz, 257 S.W.3d at 214; Corbin, 648 S.W.2d at 295

(distinguishing negligent activity theory of liability of premises occupier from

premises defect theory of liability). Nor does it consider Murillo’s nearly being

electrocuted when, in the course of his work, he attempted to disconnect the live

cable running to the transformer on Pad B as evidence that Oncor’s negligent

activity in controlling the distribution of electricity to the transformer was

contemporaneous with Murillo’s injury and proximately caused it. A fortiori,

viewing the case solely as a premises defect case in which Oncor had no duty to

Murillo other than the duty to warn of a hidden danger on the premises, the en banc

majority does not find any evidence to support the jury’s finding that Oncor had

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and breached a duty of care in safely controlling the distribution of electricity to

the transformer.

Because the en banc majority never reviews the sufficiency of the evidence

to support the jury’s findings under the actual charge on the plaintiff’s negligent

activity theory of liability, and because it finds the evidence it deems relevant to be

insufficient to support the jury’s findings under its hypothetically correct charge on

a premises defect theory, it holds that the judgment in Murillo’s favor must be

reversed and judgment rendered in Oncor’s favor. This holding follows because,

in the majority’s view, Murillo failed to plead the only claim he could have made

against Oncor—a claim for breach of the duty owed by a utilities easement owner

to the general public to warn of a hidden danger of which it knows. And, the en

banc majority points out, Oncor fulfilled this duty by posting signs on its

transformer boxes that they contained dangerous electricity. Slip Op. at 23–24. It

follows that Murillo had no claim of any kind against Oncor.

The en banc majority again relies on Olivo, and also on Torrington Co. v.

Stutzman, 46 S.W.3d 829 (Tex. 2000)—cases in which the supreme court found

the jury charge defective for failing to include questions and instructions on the

genuinely only available theory—as support for its ruling on jury charge error and

for its rendition of judgment in favor of Oncor. These cases are, however, wholly

unlike this case and inapplicable to it.

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In Olivo, as stated above, the supreme court clearly distinguished between

the “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.” 952 S.W.2d

at 527. And it held that the general contractor could be held liable to Olivo, the

employee of an independent contractor, only if it had retained “the right of control

over the injury-causing activity or condition.” Id. But the plaintiff, Olivo, had

made no showing that Williams had negligently exercised control over any aspect

of his work on the premises; and he had also neither pled nor showed that Williams

was aware of the presence of the drill protectors that injured Olivo and should have

warned about them. Id. Because “the case fits in the second category . . . and

involves a premises defect that the independent contractor [and not the defendant

general contractor] created,” the trial court erred by failing to require that the

premises defect instructions be given. Id. at 528–29.

Here, by contrast, Murillo specifically pled that Oncor itself—the utilities

easement owner—controlled the distribution of electricity to the transformer on

Pad B and, by its own negligent activity in failing to disconnect the electricity

running through the cable and continuing to distribute electricity through it to the

transformer, proximately caused his injuries when he attempted to disconnect the

cable from the transformer. Therefore, the trial court did not err in submitting the

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case to the jury on broad-form questions as to control and negligence. This case is,

therefore, entirely unlike Olivo on the jury charge issue.

Torrington, also relied on by the en banc majority, is neither a premises

defect nor a negligent activity liability case. It is a products liability case brought

in connection with a helicopter crash in which two marines died. See Torrington

Co., 46 S.W.3d at 832. The issue was whether the defendant ball-bearing

manufacturer had undertaken a duty to investigate and identify defective bearings.

Id. at 837–38. The case was submitted to the jury on a broad-form negligence

liability question as to the defendant’s breach of that duty, without a predicate

question as to whether it had undertaken such a duty. See id.

Analogizing to Olivo, in which the plaintiff’s premises defect liability claim

had been submitted to the jury without the necessary predicate questions to

establish Williams’ duty to Olivo, the supreme court observed in Torrington that

“[p]remises liability cases are similar to undertaking cases in that the plaintiff

seeks to impose a duty on another to take protective action based upon special

circumstances or the relationship between the parties.” Id. at 838. The court stated

that, in the negligent undertaking case at issue, “the broad-form negligence

question allowed the jury to hold Torrington liable regardless of whether

Torrington knew or should have known that its services were necessary to protect

others” and “allowed an affirmative answer regardless of whether anyone relied

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upon Torrington’s undertaking, or whether Torrington’s performance of its

undertaking increased the plaintiffs’ risk of harm.” Id. The court held that the jury

should have been instructed that Torrington was negligent only if it undertook to

perform services that it knew or should have known were necessary for the

plaintiffs’ protection and failed to exercise reasonable care in performing those

services, the services were relied on, and the plaintiffs’ risk of harm was increased.

Id. at 838–39.

Here, unlike in Torrington, the jury was instructed on what was required to

find each of the defendants liable, including Oncor. The jury questions as to

whether the defendants each controlled an aspect of the manner in which Murillo’s

work was performed in the transformer on Pad B and whether they breached the

duty of ordinary care in exercising such control, proximately causing Murillo’s

injuries, were all before the jury and were appropriate and sufficient to establish

both duty and breach on the part of Oncor and the other defendants.

Rather than supporting the en banc majority’s conclusion that this case

should be reversed and judgment rendered against Murillo because the jury was

not given predicate instructions necessary to establish the defendant’s duty on a

premises defect theory of liability, Torrington supports the conclusion that in a

negligent activity case where the acts that constitute duty, breach, and causation

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are well established by the pleadings and stated in the instructions and questions no

additional instructions are required.

I thus find Torrington, like Olivo, to be inapplicable to this case. And I

cannot agree with the en banc majority that either supports a finding of jury error

or rendition of judgment in favor of Oncor. 6

Conclusion

The Texas Supreme Court has consistently “rejected attempts to blur the

distinction” between the liability of a premises owner or occupier for its own

negligence and its liability for a premises defect. Shumake, 199 S.W.3d at 284.

And it has declined “to eliminate all distinction between premises conditions and

negligent activities.” Keetch, 845 S.W.2d at 264. The holding of the en banc

majority in this case not only blurs the distinction between these causes of action

but eliminates altogether the concept of a premises owner’s liability for its own

ongoing negligent activity and immunizes property owners in general and utility

easement owners in particular to liability for any such claims.

In my view, the submission of this case to the jury on a negligent activity

theory of liability was proper, there was no error in the charge, and the evidence

was legally and factually sufficient to support the jury’s verdict in favor of Murillo.

6

I note that, in Torrington, the supreme court remanded the case to the trial court

because it had clarified the law in its opinion; it did not reverse and render

judgment as the en banc majority does here. See Torrington Co. v. Stutzman, 46

S.W.3d 829, 839–41 (Tex. 2000).

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Therefore, I would affirm the trial court’s judgment on the verdict holding Oncor

liable to Murillo for its negligence, and I would leave the judgment against the

other defendants undisturbed.

Evelyn V. Keyes

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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