Opinion

Opinion issued May 27, 2004

In The

Court of Appeals

For The

First District of Texas

NO. 01-00-01054-CV

CHRISTOPHER SHAWN WOOD, INDIVIDUALLY AND AS NEXT

FRIEND OF SLADE ZACCHARIA WOOD, Appellant

V.

PHONOSCOPE, LTD.; PHONOSCOPE, INC.; AND PHONOSCOPE

MANAGEMENT, L.C., Appellees

On Appeal from the 165th District Court

Harris County, Texas

Trial Court Cause No. 98-27716

MEMORANDUM OPINION

Appellant, Christopher Shawn Wood, individually and as next friend of his

minor son, Slade Zacharia Wood, plaintiff in the trial court, brings this appeal to

challenge a summary judgment rendered in favor of appellees, Phonoscope, Ltd.,

Phonoscope, Inc., and Phonoscope Management, L.C. (Phonoscope), which became

final by a judgment entered after a trial on the merits against other defendants. In his

sole issue on appeal, Wood challenges the summary judgment rendered in favor of

Phonoscope by contending that the summary-judgment evidence raised issues of fact

and that the trial court granted summary judgment on causes of action that

Phonoscope did not address in moving for summary judgment. We affirm in part and

reverse and remand in part.

Facts and Procedural History

Phonoscope provides cable-television services in the Houston area.

Phonoscope hired RNC Communications to install new fiber-optic cable to improve

its existing network system in the 5700 block of Ranchester on property owned by the

City of Houston, which had conferred a right-of-way ownership to Phonoscope.

Consistent with its usual practice of relying on independent contractors to fulfill

Phonoscope contracts, RNC hired an independent contractor, Boyd Blythe, for the

Ranchester project. Blythe, in turn, hired Wood and others. Wood’s work included

climbing existing utility poles and operating out of a bucket on a “cherry picker”

truck to string new fiber-optic cable by “lashing” it to existing cable on the poles.

RNC owned the truck.

Wood had been working on the Ranchester job for only a few weeks when he

was seriously injured in an electrical contact accident while on the job. Wood was

working approximately 20 feet above ground level in the bucket portion of the cherry

picker when the truck either rolled or was driven backward, which caused the bucket

to come into contact with energized power lines. Wood sustained serious electrical

burns.

Wood sued Phonoscope, RNC, Blythe, and the driver of the truck, George

Eason, Jr., seeking damages for his injuries. Phonoscope moved for traditional

summary judgment under rule 166a(c), see Tex. R. Civ. P. 166a(c), contending that

it was entitled to judgment as a matter of law because Wood was an employee of an

independent contractor, to whom Phonoscope owed no legal duty. The trial court

initially denied Phonoscope’s motion, but later reconsidered that ruling and rendered

a take-nothing summary judgment in Phonoscope’s favor after rendering summary

judgment in favor of RNC. The case proceeded to a jury trial against Blythe and

Eason.

The jury attributed negligence to Blythe (60%), Eason (28%) and Wood

(12%). In accordance with the jury’s verdict, the trial court rendered judgment

awarding Wood approximately $4.5 million in damages, interest, and costs.

Standard of Review

We follow the usual standard of review for traditional summary judgments

granted under rule 166a(a) and (b) of the Rules of Civil Procedure, which requires

that the party with the burden of proof demonstrate that it is entitled to judgment by

establishing each element of its claim or defense as a matter of law or by negating an

element of a claim or defense of the opposing party as a matter of law. See Tex. R.

Civ. P. 166a(a), (b), (cmt.); Tex. Commerce Bank, N.A. v. Grizzle , 96 S.W.3d 240, 252

(Tex. 2002); Hartrick v. Great Am. Lloyds Ins. Co. , 62 S.W.3d 270, 274 (Tex.

App.—Houston [1st Dist.] 2001, no pet.). In reviewing a summary judgment, we

decide the correctness of the trial court’s legal conclusion that the moving party was

entitled to judgment as a matter of law and therefore review that conclusion de novo.

Gonzalez v. Am. Postal Workers Union , 948 S.W.2d 794, 797 (Tex. App.—San

Antonio 1997, writ denied). Like the trial court, we resolve every doubt and indulge

every reasonable inference in the nonmovant’s favor and take all evidence favorable

to the nonmovant as true. Grizzle , 96 S.W.3d at 252 .

Although interlocutory when first rendered, a partial summary judgment

becomes reviewable on appeal when, as here, the trial court renders a final judgment

that disposes of the whole case. See Newco Drilling Co. v. Weyand , 960 S.W.2d 654,

656 (Tex. 1998); State Farm Fire & Cas. Co. v. Griffin , 888 S.W.2d 150, 153 (Tex.

App.—Houston [1st Dist.] 1994, no writ); Waddell v. Huckabee , 807 S.W.2d 455,

459 (Tex. App.—Houston [1st Dist.] 1991, orig. proceeding). The partial, take-nothing summary judgment in favor of Phonoscope thus became final and appealable

when the trial court rendered its final judgment. See Newco Drilling , 960 S.W.2d at

656 ; Griffin , 888 S.W.2d at 153 ; Waddell , 807 S.W.2d at 459 . In reviewing a partial

summary judgment granted before conclusion of the remainder of a case, we are

bound by the record as it existed when the summary judgment was signed and may

not consider evidence introduced thereafter. Pan Am. Petroleum Corp. v. Tex. Pac.

Coal & Oil Co. , 324 S.W.2d 200 , 201 (Tex. 1959); Griffin , 888 S.W.2d at 153 .

A judgment that grants more relief than a party is entitled to receive is

erroneous and subject to reversal, but is not interlocutory for that reason alone.

Lehmann v. Har-Con Corp. , 39 S.W.3d 191, 200 (Tex. 2001). We review a summary

judgment that grants more relief than requested as we do any other final judgment and

do not reverse for that reason alone, as under prior law. See Bandera Elec. Coop.,

Inc. v. Gilchrist , 946 S.W.2d 336, 337 (Tex. 1997); Page v. Geller , 941 S.W.2d 101,

102 (Tex. 1997). Rather, the interests of judicial economy demand that we reverse

and remand as to those issues, but address the merits of the properly presented claims.

See Bandera , 946 S.W.2d at 337 ; Postive Feed, Inc. v. Guthmann , 4 S.W.3d 879, 881

(Tex. App.—Houston [1st Dist.] 1999, no pet.).

Discussion

In his sole issue on appeal, Wood challenges the summary judgment rendered

in favor of Phonoscope. Wood contends that the summary-judgment evidence raised

questions of fact concerning Phonoscope’s duty to Wood, specifically, concerning

Phonoscope’s right to control and its actual exercise of control over the work that

Wood and his coworkers performed. Wood further contends that Phonoscope owed

several nondelegable duties to Wood and was negligent per se, and that the trial court

erred by rendering summary judgment on causes of action that Phonoscope did not

address in moving for summary judgment.

The live pleadings against Phonoscope when the trial court rendered summary

judgment included the following claims, all of which are grounded in negligence, and

thus, in a legal duty owed to Wood: negligence; premises defect; negligent hiring of

RNC; and violation of a mandatory duty, under sections 752.002 through 752.006 of

the Health and Safety Code, to notify the electrical utility to de-energize electrical

power at the worksite. Tex. Health & Safety Code Ann. §§ 752.002, 752.003-.006 (Vernon 2003).

The following, pertinent facts are undisputed: (1) Phonoscope was the owner

of the pole pursuant to a right-of-way conferred by the City of Houston; (2)

Phonoscope exercised the role of general contractor for the work of adding fiber-optic

cable to its existing cable-network system; (3) Phonoscope subcontracted the work

to the independent subcontractor, RNC; (4) RNC, in turn, subcontracted the work to

the independent contractor, Blythe, who hired Wood; and (5) except for an indemnity

and insurance agreement with RNC, Phonoscope did not enter into any written

contracts or agreements with any of the parties about the work to be done.

A. Whether Phonoscope Owed Wood a Duty as General Contractor and Owner

Phonoscope relied on settled, common law in asserting that it was entitled to

prevail as a matter of law against Wood’s negligence claims on the grounds that it

owed no duty to Wood.

In a negligence action, a plaintiff must show that (1) the

defendant owed a duty to the plaintiff, (2) the defendant breached that duty, and (3)

the breach proximately caused the plaintiff's injuries. El Chico Corp. v. Poole , 732

S.W.2d 306, 311 (Tex. 1987). The existence of a duty owed is a threshold

consideration, Centeq Realty, Inc. v. Siegler , 899 S.W.2d 195, 197 (Tex. 1995), and

is a question of law for the court. Tex. Home Mgmt., Inc. v. Peavy , 89 S.W.2d 30 , 33

(Tex. 2002).

The principles that govern a general contractor’s duties to a subcontractor’s

employees determine whether Phonoscope, in its role as owner and general

contractor, owed a duty to Wood. See Dow Chem. Co. v. Bright , 89 S.W.3d 602 , 605

(Tex. 2002). Because Phonoscope acted as the general contractor, Phonoscope owed

the same duty to Wood, an independent contractor’s employee, that a premises owner

owes to an independent contractor’s employee. See id. at 605-06; Koch Ref. Co. v.

Chapa , 11 S.W.3d 153 , 155 n.1 (Tex. 1999).

1. “Premises Defect” or “Negligent Activity”?

As the easement owner of the pole premises, pursuant to the right-of-way

conferred by the City of Houston, Phonoscope could potentially incur liability for two

categories of cases: (1) a “premise-defect” case, in which a defect existed on the

premises when the independent contractor entered or was created through some

means unrelated to the injured employee or his employer; and (2) a “negligent

activity” case, in which the defect arises as a contemporaneous result of someone’s

negligence or through the independent contractor’s activity. See Bright , 89 S.W.3d

at 606; Coastal Marine Serv., Inc. v. Lawrence , 988 S.W.2d 223, 225 (Tex. 1999);

Williams v. Olivo , 952 S.W.2d 523, 527 (Tex. 1997). Whether a particular case

involves a “premises defect” or a “negligent activity” is a question of law. See

Bright , 89 S.W.3d at 606-07 (comparing and contrasting both types of cases in

summary-judgment context); Lawrence , 988 S.W.2d at 225 (same; further citing

supreme court’s legal conclusions categorizing case as one type or another in

analogous, directed-verdict context); Williams , 952 S.W.2d at 527 (rejecting

“negligent activity” category and categorizing case as involving “premises defect”).

Phonoscope moved for summary judgment on the grounds that “negligent activity,”

rather than “premises defect,” principles controlled this case.

In “premises defect” cases, the premises owner or general contractor has a duty

to inspect the premises and warn its independent contractor-invitees of dangerous

conditions that are not open and obvious and that the owner knows or should have

known exist. Lawrence , 988 S.W.2d at 225 . In this category of cases, the danger

does not arise through the work activity of the independent contractor. Id. ; see

Williams , 952 S.W.2d at 526-27 (holding that drill-pipe thread-protectors left on

ground by work crew during previous shift constituted premises defect); see also

McCaughtry v. Barwood Homes Ass’n , 981 S.W.2d 325, 333 (Tex. App.—Houston

[14th Dist.] 1998, pet. denied); Corpus v. K-J Oil Co. , 720 S.W.2d 672, 674-75 (Tex.

App.—Austin 1986, writ ref’d, n.r.e.); Bryant v. Gulf Oil Corp. , 694 S.W.2d 443,

444-45 (Tex. App.—Amarillo 1985, writ ref’d n.r.e.) (all concluding that proximity

of power line to work activity did not constitute “premise defect” that would trigger

owner’s or occupier’s duty to warn because danger did not arise until independent

contractor’s work activity).

In “negligent activity” cases, the dangerous condition arises because of the

independent contractor’s work activity. See Bright , 89 S.W.3d at 606-07

(categorizing, as “negligent activity,” pipe that had been placed by fellow employee

and that fell and trapped plaintiff’s arm) ; Lawrence , 988 S.W.2d at 225 (categorizing

pinch-point area on crane that injured plaintiff as “negligent activity” because area

posed no danger until put into use in work activity); see also Hoechst-Celanese Corp.

v. Mendez , 967 S.W.2d 354, 355-56 (Tex. 1998) (employing “negligent activity”

analysis in context of injuries sustained by employee of independent contractor who

fell from shelf of metal tool box that employee had used instead of ladder).

The “negligent activity” category thus encompasses conditions that are not

dangerous until they are put into operation. See Lawrence , 988 S.W.2d at 225 . Well-settled Texas law recognizes that power lines are not inherently dangerous in

themselves, although they may become dangerous because of the manner in which

independent contractors who come on premises perform their work duties. See

McCaughtry , 981 S.W.2d at 333 ; Corpus , 720 S.W.2d at 674-75 ; Bryant , 694 S.W.2d

at 444-45 ; see also Shell Oil Co. v. Songer ; 710 S.W.2d 615, 620 (Tex.

App.—Houston [1st Dist.] 1986, writ ref’d n.r.e.) (holding that although working

around live wires is inherently dangerous, duty to perform electrical repair safely was

on independent contractor in control of electrical repair work, whose employee

sustained injuries while performing repairs, rather than on owner-occupier). From

these principles, we agree with Phonoscope and conclude that this is a “negligent

activity”case.

2. Duty Commensurate with Control in “Negligent Activity” Case

A party seeking to impose liability in a “negligent activity” case can establish

a premises owner or operator’s right to control in the following two ways: (1)

evidence of a contractual agreement that explicitly assigns a right of control to the

owner or operator, or, if there is no contractual agreement, (2) evidence that the

owner or operator actually exercised control over the work. Lawrence , 988 S.W.2d

at 226 . Although right of control can be shown by express contractual agreement or

evidence of actual control, a mere possibility of control does not establish that a

contractor actually retained or exercised a right of control. Id.

Because there was no written contract between Phonoscope and any of the

subcontractors here, other than the indemnity agreement between Phonoscope and

RNC, and thus no written instructions to subcontractors that could be construed as

Phonoscope’s retaining supervisory control, any duty that Phonoscope owed to Wood

is necessarily premised on a showing of actual exercise of control over the details of

Wood’s work, under the parameters defined by the supreme court in Bright ,

Lawrence , and Mendez . See Bright , 89 S.W.3d at 607; Lawrence , 988 S.W.2d at 226 ;

Mendez , 967 S.W.2d at 355-56 .

Wood contends that Phonoscope owed him a duty because Phonoscope had

both a right to control and actually exercised control over the work done by Wood’s

work crew on the Ranchester project. In a “negligent activity” case, the owner,

occupier, or general contractor, here Phonoscope, has no general duty to see that its

independent contractors perform their work activity in a safe manner. See Bright , 89

S.W.3d at 606; Lawrence , 988 S.W.2d at 225 ; Mendez , 967 S.W.2d at 356 . But when

a contractor or owner actually exercises a right of supervisory control over the

employees of an independent subcontractor, that exercise of control may trigger

liability for injuries to those employees. Bright , 89 S.W.3d at 607; Lawrence , 988

S.W.2d at 225-26 ; Mendez , 967 S.W.2d at 356 .

To raise an issue of fact concerning Phonoscope’s actual exercise of control

over the manner in which Wood did his work, Wood had to show that Phonoscope

had more than a right to stop the work or order it resumed, to inspect or receive

progress reports, or to make suggestions, recommendations, or revisions that need not

necessarily be followed; control must rise to a level that would have precluded

Blythe’s, and thus Wood’s, complete freedom to do the work in his own way. See

Mendez , 967 S.W.2d at 356 (citing Restatement (Second) of Torts § 414 cmt. c).

Liability for injuries to the employees of a subcontractor is commensurate with the

control retained over the “operative details” of the subcontractor’s work. Lee Lewis

Constr., Inc. v. Harrison , 70 S.W.3d 778, 783 (Tex. 2001); Mendez , 967 S.W.2d at

355-56 .

To trigger liability, supervisory control must (1) relate to the activity that

caused the injury, (2) involve either the power to direct that the work be done in a

certain manner or forbid its being done in an unsafe manner, Lawrence , 988 S.W.2d

at 226 , and (3) relate to the injury that the alleged negligence caused. Bright , 89

S.W.3d at 607; see Mendez , 967 S.W.2d at 356 (noting supreme court’s having

adopted section 414 of the Restatement (Second) of Torts and holding that same

requires “nexus” between duty of care and right of control). Essentially, the evidence

must give rise to an inference that the supervising entity specifically approved a

dangerous act. See Lee Lewis Constr., Inc. , 70 S.W.3d at 783-84 (general

contractor’s supervisor approved lanyard fall-protection system and use of “bosun’s”

chair without independent lifeline and therefore retained right to control deceased

worker’s activity); see also Bright , 89 S.W.3d at 609 (“[W]e have never concluded

that a general contractor actually exercised control of a premises [when] there was no

prior knowledge of a dangerous condition and no specific approval of any dangerous

act .”) (Emphasis added.)

3. Whether Wood Raised a Fact Issue on Control by Phonoscope

Phonoscope moved for summary judgment on the grounds that it owed no duty

to Wood as a matter of law because Phonoscope neither had a contractual right of

control over the activities of its subcontractors, nor exercised actual control.

Phonoscope supported its motion with several evidentiary exhibits. The first was the

affidavit of Phonoscope’s president, who acknowledged that RNC was to string a

particular type of cable for the Ranchester project, but denied any awareness that

Blythe, who employed Wood, was a subcontractor for the work. The president of

Phonoscope also denied providing detailed or specific instructions to anyone

concerning either the methods used to string the cable or how to operate the “bucket

truck.” Phonoscope also supported its motion with the affidavit of the president of

RNC, who (1) confirmed that RNC owned the bucket truck, (2) stated that Wood’s

activities were “exclusively under the control” of Blythe, RNC’s subcontractor, (3)

stated that RNC relied on its independent contractors’ expertise, (4) denied that RNC

directed its subcontractors’ work or the work of any of its subcontractors’ employees;

(5) denied that Phonoscope directed RNC’s work, and (6) further denied that

Phonoscope had ever provided RNC with any instructions concerning how to use the

bucket truck, how to string the cable, how to use the lasher equipment, or concerning

any other details or methods. No one from Phonoscope was present at the accident

scene, according to the affidavits. Additional summary-judgment evidence

established that RNC had only office personnel and had no “field employees” who

climbed poles, strung wire, or worked from a bucket truck to string wires on poles.

Based on this evidentiary showing, Phonoscope established that it did not

actually exercise control over the details of Wood’s work to the extent required to

trigger liability under the Bright , Lawrence , and Mendez cases and therefore

established that it was entitled to prevail as a matter of law on Wood’s claims that

Phonoscope was negligent in its role as general contractor, owner, or occupier of the

worksite premises. Accordingly, the burden shifted to Wood to raise a fact issue to

defeat that showing. See City of Houston v. Clear Creek Basin Auth ., 589 S.W.2d

671, 678 (Tex. 1979); Marchal v. Webb , 859 S.W.2d 408, 412 (Tex. App.—Houston

[1st Dist.] 1993, writ denied) .

In response to the contentions in Phonoscope’s motion for summary judgment

on the issue of control, Wood offered summary-judgment evidence of the following:

(1) Phonoscope provided maps to its subcontractors, on which Blythe would

sometimes take notes of instructions provided by a Phonoscope representative; (2)

Phonoscope instructed its subcontractors to string fiber-optic cable on poles that

Phonoscope identified as Phonoscope’s poles; (3) Phonoscope instructed its

subcontractors concerning the type of fiber-optic cable to be used for projects,

including the Ranchester project; (4) Phonoscope required Blythe to check out fiber-optic cable from inventory at the Phonoscope facility and return any unused cable on

a daily basis; (5) Phonoscope limited subcontractor’s work to stringing and lashing

new fiber-optic cable, which other Phonoscope personnel would later splice and

connect; (6) Phonoscope did not permit subcontractors to do any splicing; (7) Blythe

received instruction from either of two Phonoscope representatives, Ray Browning

or Jim Cox; (8) Browning routinely rode with Blythe to indicate where the lines

should be run; (9) Browning visited the worksites from time to time, as often as twice

daily, to ensure that the cable was being strung properly; (10) Browning sometimes

stopped work being done by a crew to tell them to do it differently, for example to

string the cable somewhat higher on a pole.

Wood contends that his evidentiary response to Phonoscope’s motion for

summary judgment sufficiently raised triable issues of fact concerning Phonoscope’s

right of supervisory control because they showed that Blythe, and therefore Wood,

was not entirely free to do the work in his own way and, therefore, that Wood

defeated Phonoscope’s right to judgment as a matter of law. We disagree.

Wood offered no summary-judgment evidence to defeat Phonoscope’s

evidentiary showing that Blythe, and not Phonoscope or RNC, ultimately and

exclusively controlled Wood’s activities. Wood’s evidence showing that Blythe took

instructions from Browning or Cox tended to refute Phonoscope’s contention that it

gave no instructions at all on how to string the fiber-optic cable. It is nevertheless

undisputed that Phonoscope did not own the bucket truck—the movement of which

resulted in Wood’s injuries—never instructed anyone concerning either how to use

the bucket truck or how cabling and lashing was to be done while a crew member was

in the bucket, and had no representative present to give instructions when Wood was

injured. Likewise, the degree of participation by Phonoscope’s Browning or Cox

shown by Wood’s summary-judgment evidence does not give rise to any inference

to support Wood’s contention that Blythe, and thus Wood, was not free to “do the

work in his own way.” See Mendez , 967 S.W.2d at 356 .

Wood’s response showed only that Browning’s or Cox’s instructions were to

ensure that the work crews use the correct fiber-optic cable on the correct poles and

that they string and lash the cable so that the next work crew had only to complete the

work by splicing and connecting the wires. Nothing in the evidence showing that

Browning identified poles and locations on the poles suggests that Browning, or any

representative of Phonoscope, directed or required Wood or any subcontractor to

work within six feet of the power lines, one of the activities that Wood contends

resulted in his injuries. Likewise, nothing in the evidence relating to Browning or

Cox’s instructions, or any of the summary-judgment evidence that Wood offered,

shows or suggests that Phonoscope directed Wood or any subcontractor concerning

the two additional activities that Wood contends resulted in his injuries, specifically,

the details of using the bucket truck or how work was to be done while a crew

member was in the bucket.

Under Lawrence , Bright , and Mendez , to overcome Phonoscope’s right to

judgment as a matter of law in its role of owner and general contractor for the

Ranchester project, Wood had to offer summary-judgment evidence that raised a

triable issue of fact sufficient to show a causal nexus between his injuries and any

supervisory control that Phonoscope either retained or actually exercised over the

operative details of his work. See Bright , 89 S.W.3d at 607-11 (rendering judgment

that injured worker take nothing, in accordance with summary judgment rendered by

trial court, after rejecting eight contentions on which worker premised arguments that

defendant exercised actual control); Lawrence , 988 S.W.2d at 226 (rendering

judgment, in accordance with directed verdict and take-nothing judgment rendered

by trial court, that survivors of worker whose head was crushed in pinch-point area

of crane take nothing, on grounds that no employees of owner of crane and premises

directed work on day of injury or at any other time, further noting that evidence that

workers would have taken direction if offered showed merely a “possibility” of

control and thus no “‘right to control’ actually retained or exercised”); Mendez , 967

S.W.2d at 358 (rendering judgment that injured worker take nothing, in accordance

with summary judgment rendered by trial court, on grounds that premises owner’s

requiring compliance with its safety standards did not rise to level imposing

unqualified duty on owner to ensure that workers did nothing unsafe); compare Lee

Lewis Constr., Inc. , 70 S.W.3d at 784 (rejecting legal-sufficiency challenge to jury’s

finding that general contractor retained control over fall-protection systems at

worksite where worker died after fall, on grounds that contractor retained right to

control subcontractor’s fall-protection systems based on contractor’s superintendent’s

approving use of both lanyard fall-protection system and “bosun” chair without

independent lifeline).

Here, as in Bright , Lawrence , and Mendez , there was no fact issue raised to

suggest that Phonoscope specifically approved a dangerous act. See Bright , 89

S.W.3d at 609. We hold that Wood did not raise a triable issue of fact sufficient to

show a causal nexus between his injuries and any supervisory control either retained

or actually exercised by Phonoscope over the operative details of Wood’s work,

which thus defeated any claim that Phonoscope owed Wood a duty of care under the

common law. See Van Horn v. Chambers , 970 S.W.2d 542, 544 (Tex. 1998) (noting

that absence of recognized legal duty ends inquiry into negligence liability). Because

the summary-judgment record established that Phonoscope did not owe Wood a duty

of care based on Phonoscope’s status as general owner and contractor under the

common-law theories asserted by Wood, we conclude that the trial court properly

rendered summary judgment in favor of Phonoscope as owner and general contractor.

B.Whether Phonoscope Owed Nondelegable Duties to Wood—Negligence

Per Se?

Wood further contends that the trial court erred by rendering summary

judgment because Phonoscope did not establish that it was entitled to prevail as a

matter of law on the several, nondelegable duties that Wood claimed that Phonoscope

owed to him. Both the summary-judgment record and Wood’s and Phonoscope’s

arguments on appeal indicate that Wood further contends that Phonoscope was

negligent per se by not complying with these allegedly nondelegable duties. To the

extent that Wood contends that Phonoscope was negligent per se, we note that

negligence per se is a common-law doctrine that imposes a duty based on a standard

of conduct created by a penal statute rather than on the reasonably-prudent-person test

that governs pure negligence claims. Smith v. Merritt , 940 S.W.2d 602, 607 (Tex.

1997). The threshold inquiries in every negligence per se case are whether the

plaintiff belongs to the class that the statute was intended to protect and whether the

plaintiff’s injury is of a type that the statute was designed to prevent. Perry v. S.N. ,

973 S.W.2d 301, 305 (Tex. 1998).

1. Health and Safety Code Chapter 752

Wood’s pleadings alleged that chapter 752 of the Health and Safety Code

imposed nondelegable duties on Phonoscope to notify the electrical utility of the

cabling work to be done by Wood’s crew so that the high voltage lines could be de-energized. Issues of statutory construction raise questions of law that we properly

review de novo. Subaru of Am., Inc. v. David McDavid Nissan, Inc. , 84 S.W.3d 212,

222 (Tex. 2002); see Fisher v. Lee & Chang P’ship , 16 S.W.3d 198, 200-02 (Tex.

App.—Houston [1st Dist.] 2000, pet. denied).

Section 752.004 restricts activities near high voltage overhead lines. Tex.

Health & Safety Code Ann. § 752.004 (Vernon 2003). If a person, who is

performing a function or activity on “land, a building, a highway, or other premises,”

may (1) “move or be placed within six feet of a high voltage overhead line while

performing the function or activity” or (2) “bring any part of a tool, equipment,

machine, or material within six feet of a high voltage overhead line while performing

the function or activity,” section 752.004 forbids “the person, firm, corporation or

association, either individually or through an agent or employee” from performing the

function or activity unless “the person, firm, corporation or association effectively

guards against danger by contact with the line as prescribed by [s]ection 752.003.”

Id.

Section 752.003 governs temporary clearance of high voltage overhead lines

and states, in part, as follows:

(a) A person, firm, corporation, or association responsible for

temporary work or a temporary activity or function closer to a high

voltage overhead line than the distances prescribed by this chapter must

notify the operator of the line at least 48 hours before the work begins.

(b) A person, firm, corporation, or association may not begin the

work, activity, or function under this section until the person, firm,

corporation, or association responsible for the work, activity, or function

and the owner or operator, or both, of the high voltage overhead line

have negotiated a satisfactory mutual arrangement to provide temporary

de-energization and grounding, temporary relocation or raising of the

line, or temporary mechanical barriers to separate and prevent contact

between the line and the material or equipment or the person performing

the work, activity, or function.

Id. § 752.003(a)-(b) (Vernon 2003). (Emphasis added.) The statute authorizes both

criminal penalties and damages for violations of chapter 752. Id. §§ 752.007, 752.008

(Vernon 2003).

Phonoscope moved for summary judgment on Wood’s chapter 752 claims by

contending that any liability was attributable to the subcontractor performing the work

because Phonoscope did not retain or exercise sufficient control over the work being

performed and was therefore not the responsible party to request temporary clearance

under section 752.003(a) or incur liability under section 752.008. Phonoscope also

argued that the statute did not apply to Wood because he was “an employee of an

electrical or communications contractor who [was] working under the contractor’s

supervision” and therefore exempted by the express language of section 752.002(a)

and (b)(6). Id. § 752.002(a), (b)(6) (Vernon 2003). Wood’s affidavit in response

included the following assertions: Phonoscope was the “party responsible for the

work,” and Wood’s work activity placed him within six feet of the high voltage lines.

In the same affidavit, Wood denied that he was an employee of an electrical or

communications contractor.

Although Wood is among the class of those that chapter 752 was enacted to

protect, the statute does not state that it imposes a non-delegable duty. See Espinoza

v. Hicks , 984 S.W.2d 274, 277 (Tex. App.—El Paso 1988, no writ). As we held above

in addressing Wood’s common-law, negligence-based claims, Phonoscope established

both that it had no supervisory control and that it did not actually exercise control,

over the details of Wood’s work activity and was not even present on the day when

Wood was injured. Relying on Espinoza in Trail v. Friedrich , 77 S.W.3d 508 (Tex.

App.—Houston [1st Dist.] 2002, pet. denied), this Court held that the premises owner,

who had no right to direct the details of the contractor’s work, was not a “responsible”

party under sections 752.003(a) and (b). See Trail , 77 S.W.3d at 513 (citing Espinoza ,

984 S.W.2d at 277 ); see also Espinoza , 984 S.W.2d at 277 (“We think it is clear . . .

that the legislature did not intend to place a non-delegable duty on landowners.”).

Thus, although chapter 752 was enacted to protect workers like Wood, sections

752.003(a) and (b) impose a duty on the party who is responsible for the work and

most knowledgeable about the need to notify the utility. See Trail , 77 S.W.3d at 513 ;

Espinoza , 984 S.W.2d at 277 ; see also Songer , 710 S.W.2d at 620-621 (holding, under

common-law principles, that independent contractor in control of installation was in

superior position than premises owner to eliminate dangerous condition by de-activating power lines). We conclude that Phonoscope established its right to prevail

as a matter of law on Wood’s chapter 752 claims.

2. Phonoscope’s Franchise Agreement with City of Houston

Wood’s pleadings alleged that Phonoscope’s franchise agreement with the City

of Houston triggered in Phonoscope a nondelegable,“high” duty of care to Wood. In

moving for summary judgment, Phonoscope raised two legal challenges to the asserted

duty. The first questioned whether Wood was an intended beneficiary of the franchise

agreement; the second questioned Wood’s authority or standing to enforce any

provision of that agreement. In response, Wood relied on paragraph L of the

agreement, which states the following:

Standard of Care . [Phonoscope] shall at all times employ a high

standard of care and shall install, maintain, and use approved methods

and devices for preventing failures or accidents which are likely to cause

damages, injuries, or nuisances to the public.

Wood also relied on excerpts from the deposition testimony by Phonoscope’s

president, in which she was questioned about the purpose of paragraph L and generally

agreed that Phonoscope should not “endanger” the lives of workmen installing

Phonoscope cables.

In support of his contention that the franchise agreement reflected a concern for

public safety and thus imposed a non-delegable duty on Phonoscope to Wood, Wood

relies on this Court’s opinion in Edwards v. Hammerly Oaks, Inc. , 908 S.W.2d 270

(Tex. App.—Houston [1st Dist.] 1995), aff’d as modified , 958 S.W.2d 387 (Tex.

1997). In Edwards , in which a tenant who was assaulted by two employees of an

apartment complex sued the complex, we construed Houston City Ordinance § 10-343(b)(4) as imposing a duty “by law,” based on concerns of public safety, and

therefore concluded that the ordinance imposed on the managers of the Hammerly

Oaks apartment complex a nondelegable duty that triggered liability for their agents’

acts. Id. at 273. A key distinction between this case and Edwards , as well as the

authorities on which Edwards relies, is that the alleged duty here is not imposed “by

law,” but pursuant to an agreement between two parties, the City of Houston and

Phonoscope. Because Wood was not a party to the agreement, Phonoscope correctly

asserted that he was required, but failed, to establish either that he had standing to

enforce the agreement or that he was a third-party beneficiary of the contract.

Wood also relied on section 428 of the Restatement (Second) of Torts in

contending that the franchise agreement imposed a non-delegable duty on

Phonoscope. Section 428 provides as follows:

An individual or a corporation carrying on an activity which can be

lawfully carried on only under a franchise granted by public authority

and which involves an unreasonable risk of harm to others, is subject to

liability for physical harm caused to such others by the negligence of a

contractor employed to do work in carrying on the activity.

Restatement (Second) of Torts § 428 (1965 and Appendix 1986).

In support of

this argument, however, Wood again asserts that his work was “inherently or

intrinsically dangerous” because it necessitated proximity to power lines. As

addressed above, settled Texas law rejects the premise that power lines are inherently

dangerous in themselves, while recognizing that they may become dangerous because

of the manner in which independent contractors who come on premises perform their

work duties. See McCaughtry , 981 S.W.2d at 333 ; Corpus , 720 S.W.2d at 674-75 ;

Songer ; 710 S.W.2d at 620 ; Bryant , 694 S.W.2d at 444-45 .

We conclude that Phonoscope established that it was entitled to prevail as a

matter of law on Wood’s claim that the franchise agreement between Phonoscope and

the City of Houston created a high duty of care in Phonoscope in favor of Wood and

therefore conclude that the trial court properly granted summary judgment in favor of

Phonoscope on that claim.

3. “Inherently Dangerous” Work and National Codes

Wood also contends that because Phonoscope placed its poles in a manner that

required him to work within close proximity to high-voltage power lines, his work was

inherently dangerous and thus triggered a nondelegable duty exception from the

general rule that a premises owner or contractor incurs no liability for work done by

an independent contractor. We again note that well-settled Texas law recognizes that

high-voltage lines are not inherently dangerous, but may become dangerous because

of the manner in which independent contractors who come on premises perform their

work duties. See McCaughtry , 981 S.W.2d at 333 ; Corpus , 720 S.W.2d at 674-75 ;

Songer ; 710 S.W.2d at 620 ; Bryant , 694 S.W.2d at 444-45 .

In opposing Phonoscope’s motion for summary judgment, Wood relied on

expert testimony of B. Michael Aucoin, who averred, by affidavit, that the proximity

of Phonoscope’s cable and poles to high-voltage overhead power lines violated

unspecified provisions of several national administrative regulations and codes.

As

Phonoscope explained in response, however, the regulations and codes to which

Aucoin referred impose obligations on employers for their employees. Moreover,

violation of a nonpenal administrative code statute does not establish a negligence per

se claim. See Pack v. Crossroads, Inc ., 53 S.W.3d 492, 509-10 (Tex. App.—Fort

Worth 2001, pet. denied) (holding that trial court had properly rejected claim of

negligence per se premised on administrative regulation pertaining to nursing homes

on grounds that penalties were civil and not criminal in nature).

It is undisputed that Phonoscope did not employ Wood, and Wood has not

demonstrated that violations of any of the regulations or code on which his expert

relied were punishable as crimes. Accordingly, Wood’s summary judgment evidence

did not defeat Phonoscope’s right to judgment as a matter of law for alleged violations

of administrative regulations and codes.

We hold that Phonoscope established its right to summary judgment as a matter

of law on Wood’s claims that nondelegable duties were imposed on Phonoscope or

that Phonoscope was negligent per se.

Summary Judgment on Claims Not Addressed in Phonoscope’s Motion

As noted above, the trial court initially denied Phonoscope’s motion, but

Phonoscope reurged it, and Wood filed a response. The trial court then rendered a

take-nothing summary judgment in Phonoscope’s favor. In responding to

Phonoscope’s reurged motion, Wood pointed out that he had amended his pleadings

several times and claimed that Phonoscope’s reurged motion did not address those

claims. Phonoscope replied that all of Wood’s claims were negligence based and thus

adequately addressed and encompassed in Phonoscope’s reurged motion. On appeal,

Wood contends that Phonoscope’s failure to address his premises defect and negligent

hiring claims requires that we reverse the summary judgment. Phonoscope counters

that its no-duty ground is dispositive of both claims.

It is “axiomatic” that a party may not prevail by a summary judgment on a cause

of action that the party does not address in moving for summary judgment. Chesser

v. Southwestern Bell Tel. Co. , 658 S.W.2d 563, 564 (Tex. 1983); Clark v. Pruett , 820

S.W.2d 903, 907 (Tex. App.—Houston [1st Dist.] 1991, no writ); see also Tex. R.

Civ. P. 166a(c) (“Issues not expressly presented to the trial court by written motion,

answer, or other response shall not be considered on appeal as grounds for reversal.”)

Therefore, when, as here, a plaintiff amends his pleadings after the defendant has

moved for summary judgment, the defendant must ordinarily file an amended motion

for summary judgment to be entitled to prevail on the entirety of the plaintiff’s case.

Sosa v. Cent. Power & Light , 909 S.W.2d 893, 894-95 (Tex. 1995); Smith v. Atlantic

Richfield Co. , 927 S.W.2d 85, 88 (Tex. App.—Houston [1st Dist.] 1996, writ denied).

The portion of a final summary judgment that is rendered on the plaintiff’s entire case

under these circumstances must be reversed because the judgment grants more relief

than requested. See Lehmann , 39 S.W.3d at 200 ; Postive Feed, Inc. , 4 S.W.3d at 881 .

An exception applies, however, when the grounds initially asserted in moving

for summary judgment conclusively negate an element that is common to the

allegations asserted in an amended pleading. See Judwin Prop., Inc. v. Griggs &

Harrison , 911 S.W.2d 498, 502-03 (Tex. App.—Houston [1st Dist.] 1995, no writ).

As in the trial court, Phonoscope contends that it conclusively negated any duty owed

to Wood and therefore defeated a necessary element of both the premises defect and

negligent hiring claims that Wood added in his amended pleading and, therefore, that

the exception applies.

A. “Premises Defect”

We agree with Phonoscope that its motion for summary judgment conclusively

negated Wood’s claims that Phonoscope owed him a duty under a “premises-defect”

theory of liability. Phonoscope’s motion for summary judgment addressed the two

possible theories under which, as owner and general contractor, Phonoscope could

become liable to Wood under the common law. These were the “premises defect” and

“negligent activity” theories of liability. In addition to explaining the circumstances

under which a particular theory would apply and explaining the scope of the duty

owed under each, Phonoscope argued that the “negligent activity” theory controlled

this case as a matter of law. As addressed above, whether a particular case involves

a “premises defect” or a “negligent activity” is a question of law. See Bright , 89

S.W.3d at 606-07.

We have concluded that this is a “negligent activity” case and, in addition, that

Phonoscope conclusively established that it owed no duty to Wood as a matter of law.

Because Phonoscope’s contentions in moving for summary judgment had already

negated the “premises defect” theory of liability, and because this is a “negligent

activity” case as a matter of law, we conclude that this case comes within the Judwin

Properties exception and, therefore, that the trial court did not err by granting

summary judgment on the “premises defect” claim added by Wood’s amended

pleadings.

B. Negligent Hiring of RNC

Wood’s amended petition alleged that Phonoscope negligently hired RNC

because RNC had no employees of its own, but was nevertheless engaged to do the

Ranchester project “despite . . . having no knowledge of safety rules, safety laws,

safety codes, and/or safety standards.” Texas common law, on which Phonoscope

relied in moving for summary judgment, recognizes that a person who employs an

independent contractor must use reasonable care to select an independent contractor

who is competent to do the work assigned. See Moore v. Roberts , 93 S.W.2d 236,

238-39 (Tex. Civ. App.—Texarkana 1936, writ ref’d); King v. Assoc. Commercial

Corp ., 744 S.W.2d 209, 213 (Tex. App.—Texarkana 1987, writ denied); see also Ross

v. Tex. One P’ship , 796 S.W.2d 206, 216 (Tex. App.—Dallas 1990), writ denied per

curiam , 806 S.W.2d 222 (1991) (holding that one who hires independent contractor

has duty of care and “reasonable inquiry”); also Webb v. Justice Life Ins. Co. , 563

S.W.2d 347, 349 (Tex. Civ. App.—Dallas 1978, no writ) (adopting Restatement

(Second) of Torts § 411 (1965)). As these authorities and the restatement recognize,

negligent hiring is an independent tort. See Read v. Scott Fetzer Co. , 990 S.W.2d 732,

739 (Tex. 1998) (Hecht, J., dissenting) (noting that, to extent contractor retains

control, subcontractor is not “independent”). One hiring an independent contractor

may be held responsible for the contractor’s negligent acts if the employer knew or

should have known that the contractor was incompetent and a third person was injured

because of the contractor’s incompetence. King , 744 S.W.2d at 213 ; see also

Restatement (Second) of Torts § 411(a) (1965) (recognizing that employer may

be “subject to liability for physical harm to third persons” caused by employer’s failure

to exercise reasonable care to employ competent and careful subcontractor to do work

that will involve risk of physical harm unless skillfully and carefully done).

Phonoscope has consistently maintained that RNC and all its subcontractors

were independent and that Phonoscope neither retained nor exercised control over

them. Although lack of control over its independent contractor was dispositive of

Wood’s premises-based claims, lack of control is not an element of his negligent-hiring claim and proof of lack of control was therefore not dispositive of the claim.

To be entitled to prevail as a matter of law on that claim, therefore, Phonoscope had

a duty to, but failed to, move for summary judgment.

In response to Wood’s claim that its reurged motion for summary judgment did

not address his negligent hiring claim, Phonoscope nevertheless argued that it was

entitled to prevail as a matter of law for the following reasons:

Plaintiff has no evidence whatsoever that Phonoscope had any

knowledge that RNC had previous problems performing its job safely.

Furthermore, the Plaintiff has no evidence that Phonoscope knew or

should have known that the Plaintiff was not an employee of RNC or that

he was working with an inexperienced crew, hired through a sub-sub-contractor relationship of which Phonoscope was not aware.

Wood had no burden to produce evidence to raise a fact issue on his negligent-hiring

claim, however, because Phonoscope had never moved for summary judgment on that

basis. Accordingly, we hold that the trial court erred by rendering summary judgment

in favor of Phonoscope on that theory of liability.

We sustain Wood’s sole issue with respect to his contention that the trial court

erred by granting Phonoscope’s motion for summary judgment on Wood’s claim that

Phonoscope was negligent in hiring RNC as its subcontractor for the Ranchester

project. In all other respects, we overrule Wood’s sole issue.

Conclusion

With the exception of Wood’s claim of negligent hiring against Phonoscope,

which we reverse and remand for further proceedings, we affirm the judgment of the

trial court.

Elsa Alcala

Justice

Panel consists of Chief Justice Radack and Justices Alcala and Higley.