Oncor Electric Delivery Company LLC v. Victor Quintanilla, Oscar Interiano Rosales and Accident Fund Insurance Company of America ( 2022 )

AFFIRMED and Opinion Filed October 17, 2022
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-19-01331-CV
ONCOR ELECTRIC DELIVERY COMPANY LLC, Appellant
V.
VICTOR QUINTANILLA, OSCAR INTERIANO ROSALES, AND
ACCIDENT FUND INSURANCE COMPANY OF AMERICA, Appellees
On Appeal from the 160th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DC-17-03500
MEMORANDUM OPINION
Before Justices Schenck, Osborne, and Partida-Kipness
Opinion by Justice Osborne
A jury found appellant Oncor Electric Delivery Company LLC (Oncor)
negligent in connection with an incident where two excavation workers were
electrocuted when a guy wire anchored in the location of a hole that the workers
were excavating suddenly became energized. The workers sued Oncor, contending
that Oncor was negligent by installing an insulator on the guy wire that was too short
to prevent the guy wire from becoming energized when it sagged onto an electrified
jumper. Oncor asserted, among other things, that the workers’ claims were barred
by Chapter 752 of the Texas Health and Safety Code because the workers were
responsible for the work and failed to provide notice to and make mutual safety
arrangements with Oncor before beginning the work. At trial, however, the jury
made findings adverse to Oncor on its alleged Chapter 752 defense.
In five issues, Oncor challenges (1) the sufficiency of the evidence that Oncor
was negligent; (2) whether the evidence conclusively established Oncor’s alleged
Chapter 752 defense, or whether the evidence is insufficient to support the jury’s
adverse findings on the defense; (3) whether the trial court erred by refusing to
submit a general contractor’s negligence and proportionate responsibility to the jury;
(4) whether the trial court erred by refusing to include a certain instruction in the
jury charge relating to Oncor’s alleged Chapter 752 defense; and (5) whether the
workers’ counsel engaged in incurable improper jury argument. We affirm.
BACKGROUND
We draw the following facts from the record, viewed in the light most
favorable to the verdict.
In July 2016, appellees Victor Quintanilla (Victor) and Oscar Interiano
Rosales (Oscar) were working as excavation workers for Alvarenga Underground
Construction, LLC (Alvarenga) when they sustained severe personal injuries from
an electric shock. Alvarenga installs underground utilities such as fiber-optic and
telephone cable. At the time of the incident, Victor and Oscar were digging a hole
for a road bore for utility services to cross under a road in a road-widening project.
–2–
Alvarenga was working as a subcontractor for Henkels & McCoy, Inc. (HMI). HMI
had been hired as the general contractor by Frontier.1
The pit the men were digging was near a utility pole containing high voltage
overhead lines. The pole was stabilized by a system of guy anchors in the ground
that pulled tension on the guy wires attached to the top of the utility pole. The guy
wire at issue was secured by a guy anchor that was located within the location of the
pit that Victor and Oscar were digging. As Victor and Oscar dug the hole, they
slowly removed dirt around the guy anchor, and the guy wire sagged down onto an
electrified jumper coming around the utility pole. While Victor and Oscar were in
the hole, the guy wire became energized, resulting in severe injuries to both men.
Oncor claimed ownership of the guy wire and guy anchor but not the utility
pole. Oncor had constructed the guy-wire system in approximately 1986 to 1987.
The two-foot insulator that Oncor installed on the guy wire, however, was too short
to prevent the guy wire from becoming energized if the guy wire sagged and came
into contact with the electrified jumper coming around the pole.
Victor and Oscar sued Oncor for negligence and gross negligence, alleging,
inter alia, that Oncor owed the public, including Victor and Oscar, a duty to properly
design and erect its equipment and that the insulator for the guy wire did not meet
1
The record reflects that Verizon had hired HMI and that Verizon subsequently became Frontier. For
ease of reference, we will refer to Verizon and Frontier as simply “Frontier.”
–3–
relevant design standards because it did not adequately protect against the guy wire’s
becoming energized.2
Oncor answered, asserting, inter alia, that it was entitled to statutory
indemnification for all liability under § 752.008 of the Texas Health and Safety
Code. It also alleged that Victor’s and Oscar’s damages were caused by their own
negligence or the negligence of other third parties. Oncor moved to designate HMI
and Alvarenga as responsible third parties, and the trial court granted both motions.
The case was tried to a jury. At the close of Victor and Oscar’s case, Oncor
moved for a directed verdict on appellees’ gross-negligence and negligence claims
and on certain elements of Oncor’s alleged indemnity affirmative defense under
Chapter 752. The trial court granted a directed verdict on appellees’ gross-
negligence claims but denied the remainder of the motion. After the close of all
evidence, Oncor again moved for a directed verdict, which the trial court denied.3
At the charge conference, the trial court overruled Oncor’s objections to
(1) the charge’s omission of HMI from the negligence and proportionate-
responsibility questions and (2) the omission of certain instructions from a question
purportedly pertaining to Oncor’s indemnity defense under Chapter 752.
2
Victor and Oscar asserted additional claims but nonsuited them during trial.
3
At trial, Oncor took the position that Victor and Oscar caused the guy anchor to suddenly jerk out of
the ground and the guy wire to spring into the air where it contacted the electrified line. Oncor does not
urge this theory on appeal. Thus, we do not address it.
–4–
The jury returned a verdict finding Victor, Oscar, Alvarenga, and Oncor each
negligent and apportioned responsibility as follows: Victor 2%; Oscar 1%;
Alvarenga 49%; and Oncor 48%. The jury also made findings adverse to Oncor on
its alleged indemnity defense under Chapter 752.
The trial court denied Oncor’s motion for judgment notwithstanding the
verdict (JNOV motion). The trial court signed a final judgment against Oncor
awarding Victor and Oscar damages and prejudgment interest totaling $532,072.72
and $870,861.08, respectively, plus postjudgment interest and court costs. 4 Oncor
timely filed a motion for new trial, which the trial court denied. This appeal followed.
ISSUES ON APPEAL
On appeal, Oncor asserts the following five issues, some of which include
subparts:
(1) There was factually and legally insufficient evidence of Oncor’s negligence.
(2) Oncor proved as a matter of law that Victor’s and Oscar’s claims were barred
by the doctrine of circular indemnity under Chapter 752 of the Texas Health
and Safety Code in that Oncor proved Victor and Oscar (a) were responsible
for the work and (b) were performing a function or activity that caused any
part of a tool, equipment, machine, or material to be brought within six feet
of a high voltage overhead line. Alternatively, the jury’s answers to these two
issues were so against the great weight and preponderance of the evidence that
they were clearly wrong and unjust.
4
The final judgment incorporates by reference a written stipulation filed by appellees and intervenor
Accident Fund Insurance Company of America (AFICA) regarding AFICA’s rights of reimbursement for
workers’ compensation benefits paid to Victor and Oscar.
–5–
(3) The trial court erred by failing to include HMI, a responsible third party and
the project’s contractor, on the verdict form for determinations of negligence
and proportionate responsibility.
(4) The trial court erred by failing to instruct the jury that a person brings material
within six feet of a high voltage overhead line for purposes of Chapter 752 if
the person causes a material already within six feet of a high voltage overhead
line to make physical contact with the high voltage overhead line or to come
closer to the line.
(5) Appellees’ counsel engaged in incurable jury argument by (a) misstating the
law regarding a material already within six feet of an overhead line under
Chapter 752 and (b) providing an invalid basis, not supported by the evidence,
upon which the jury could have held Oncor liable for negligence.
For the reasons discussed below, we resolve all issues against Oncor.
STANDARDS OF REVIEW
When a party attacks the legal sufficiency of the evidence to support an
adverse finding on which it did not have the burden of proof at trial, it must
demonstrate there is no evidence to support the adverse finding. Exxon Corp. v.
Emerald Oil & Gas Co., L.C., 348 S.W.3d 194, 215 (Tex. 2011). In determining
whether the evidence is legally sufficient to support a finding, we consider the
evidence in the light most favorable to the judgment and indulge every reasonable
inference that would support it. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.
2005). We must credit favorable evidence if a reasonable factfinder could and
disregard contrary evidence unless a reasonable factfinder could not. Id. at 827. “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.” Id.
–6–
A complaint that the evidence is legally insufficient will be sustained when
(1) there is a complete absence of evidence of a vital fact, (2) the court is barred by
rules of law or evidence from giving weight to the only evidence offered to prove a
vital fact, (3) the evidence offered to prove a vital fact is no more than a mere
scintilla, or (4) the evidence establishes conclusively the opposite of the vital fact.
Id. at 810. “Anything more than a scintilla of evidence is legally sufficient to support
the finding.” Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc.,
960 S.W.2d 41, 48 (Tex. 1998). There is more than a scintilla of evidence “when the
evidence as a whole rises to a level enabling reasonable and fair-minded people to
have different conclusions.” Waste Mgmt. of Tex., Inc. v. Tex. Disposal Sys. Landfill,
Inc., 434 S.W.3d 142, 156 (Tex. 2014).
When a party attacks the legal sufficiency of an adverse finding on an issue
on which it had the burden of proof, it must demonstrate on appeal that the evidence
establishes, as a matter of law, all vital facts in support of the issue. Dow Chem. Co.
v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (per curiam). When reviewing a “matter
of law” challenge, we must first examine the record for evidence that supports the
finding, while ignoring all evidence to the contrary. Id. Anything more than a
scintilla of evidence is legally sufficient to support the finding. Formosa Plastics
Corp., 960 S.W.2d at 48. If there is no evidence to support the finding, we will then
examine the entire record to determine if the contrary position is established as a
–7–
matter of law. Dow Chem. Co., 46 S.W.3d at 241. The point of error is sustained
only if the contrary proposition is conclusively established. Id.
A party attacking the factual sufficiency of the evidence to support an adverse
finding on which the party did not have the burden of proof must demonstrate on
appeal that there is insufficient evidence to support the adverse finding. Hoss v.
Alardin, 338 S.W.3d 635, 651 (Tex. App.—Dallas 2011, no pet.). In reviewing the
challenge, we consider all the evidence and set the verdict aside only if the evidence
supporting the finding is so weak or so against the overwhelming weight of the
evidence that the finding is clearly wrong and unjust. Id.A party attacking the factual sufficiency of the evidence of an adverse finding
on which the party had the burden of proof must demonstrate on appeal that “the
adverse finding is against the great weight and preponderance of the evidence.” Dow
Chem. Co., 46 S.W.3d at 242. We consider and weigh all the evidence, and we set
aside a verdict only if the evidence is so weak or if the finding is so against the great
weight and preponderance of the evidence that it is clearly wrong and unjust. Id.
The factfinder is the sole judge of the credibility of the witnesses and the
weight to be given their testimony. City of Keller, 168 S.W.3d at 819 (legal-
sufficiency review); Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757, 761
(Tex. 2003) (factual-sufficiency review). We may not substitute our own judgment
for that of the factfinder merely because we might reach a different result. See City
of Keller, 168 S.W.3d at 819.
–8–
We review a trial court’s rulings on motions for directed verdict and for
judgment notwithstanding the verdict under a legal-sufficiency standard. See id. at
827.
We review a trial court’s submission of jury instructions and questions for an
abuse of discretion. Dallas Area Rapid Transit v. Morris, 434 S.W.3d 752, 757 (Tex.
App.—Dallas 2014, pet. denied); Janga v. Colombrito, 358 S.W.3d 403, 408 (Tex.
App.—Dallas 2011, no pet.). The trial court must submit a question that is raised by
the written pleadings and the evidence, and it may refuse to submit a properly
worded question only if there is no evidence in the record to warrant its submission.
See Janga, 358 S.W.3d at 408.
A trial court is given wide latitude to determine the propriety of explanatory
instructions and definitions. Morris, 434 S.W.3d at 757. Rule 277 affords the trial
court considerable discretion in deciding what jury instructions are necessary and
proper. Id. (citing TEX. R. CIV. P. 277). For an instruction to be proper, it must
(1) assist the jury, (2) accurately state the law, and (3) find support in the pleadings
and evidence. Id.
Finally, we review a trial court’s denial of a motion for new trial for abuse of
discretion. Dugan v. Compass Bank, 129 S.W.3d 579, 582 (Tex. App.—Dallas 2003,
no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable
manner or acts without reference to any guiding rules or principles. Id.–9–
A judgment will not be reversed on grounds that the trial court made an error
of law unless the error probably caused the rendition of an improper judgment or
probably prevented the appellant from properly presenting the case to the court of
appeals. TEX. R. APP. P. 44.1(a).
OVERVIEW OF CHAPTER 752 OF THE
TEXAS HEALTH AND SAFETY CODE
Because Oncor raises Chapter 752 of the Texas Health and Safety Code in
multiple issues, we briefly summarize its relevant sections and how Oncor invokes
them to assert an affirmative defense to Victor’s and Oscar’s negligence claims.
A. Statutory Framework of Chapter 752
Chapter 752 restricts certain activities near high voltage overhead lines. See
TEX. HEALTH & SAFETY CODE ANN. §§ 752.001–.008. Oncor relies upon
§§ 752.001, .003, .004, and .008 to establish its alleged affirmative defense.
Section 752.001 defines “high voltage” and “overhead lines.” Id. § 752.001.
Section 752.003 requires forty-eight hours’ notice and other safety
precautions to be followed when certain functions or activities are performed within
certain prescribed distances of a high voltage overhead line. See id. § 752.003.
Specifically, subsection (a) states: “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.” Id. § 752.003(a)
–10–
(emphasis added). Subsection (b) then prohibits a person, firm, corporation, or
association from beginning the work, activity, or function until the person, firm,
corporation, or association responsible for the work, activity, or function and the
owner or operator, or both, have negotiated certain mutual safety arrangements. See
id. § 752.003(b). The person, firm, corporation, or association responsible for the
work, activity, or function is then required to pay the operator of the line the actual
expenses the line operator incurs in providing the clearances prescribed by their
agreement. See id. § 752.003(c). The line operator is not required to provide
clearance until such payment is made. See id.
The distances prescribed by Chapter 752 are found in §§ 752.004 and .005.
Oncor does not rely upon § 752.005, so we do not address it. Section 752.004 states:
(a) Unless a person, firm, corporation, or association effectively
guards against danger by contact with the line as prescribed by
Section 752.003, the person, firm, corporation, or association,
either individually or through an agent or employee, may not
perform a function or activity on land, a building, a highway, or
other premises if at any time it is possible that the person
performing the function or activity 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.
(b) A person, firm, corporation, or association may not require an
employee to perform a function or activity prohibited by
Subsection (a).
–11–
Id. § 752.004 (emphases added). Oncor does not rely upon § 752.004(a)(1), so we
do not address it. Oncor contends the work at issue fell within § 752.004(a)(2), as
discussed below.
Finally, § 752.008 imposes liability upon a person, firm, corporation, or
association who violates Chapter 752 when the violation results in physical or
electrical contact with a high voltage overhead line. That section states:
If a violation of this chapter results in physical or electrical contact with
a high voltage overhead line, the person, firm, corporation, or
association that committed the violation is liable to the owner or
operator of the line for all damages to the facilities and for all liability
that the owner or operator incurs as a result of the contact.
Id. § 752.008.
B. The Four Elements that Oncor Contends Establish an Affirmative
Defense Based on Chapter 752 in this Case.
Oncor’s position, as we understand it, is that the excavation work Victor and
Oscar were performing required compliance with the notice and safety precautions
of § 752.003 because the excavation work supposedly fell within § 752.004(a)(2).
As shown above, that section concerns a situation where it is possible that the person
performing the work may “bring any part of a tool, equipment, machine, or material
within six feet of a high voltage overhead line.” Id. § 752.004(a)(2) (emphases
added). The evidence at trial indicated that before the work began, the guy wire at
issue was attached to the utility pole and already within six feet of the electrified
jumper located high up on that utility pole. Below are four photographs taken at the
location of, and after, the incident at issue:
–12–
Nonetheless, Oncor contends the work fell within § 752.004(a)(2) because Victor
and Oscar caused the guy wire to move closer to and make contact with the
electrified line.5
5
It is not necessary for the disposition of this appeal for us to determine whether “it is possible that the
person performing the function or activity may . . . bring any part of a tool, equipment, machine, or material
–13–
Oncor’s position is that Victor and Oscar each violated Chapter 752 because
they were both persons responsible for the work and failed to provide Oncor with
the required notice and to make mutual safety arrangements with Oncor before
beginning the work as required by § 752.003. Oncor then relies upon the
indemnification in § 752.008 and the doctrine of “circular indemnity” to assert that
Victor’s and Oscar’s purported Chapter 752 violations constitute an affirmative
defense that bars their claims. The “circular indemnity” doctrine, assuming it applies
in this context, would preclude a plaintiff who violates Chapter 752 (and whose
violation results in physical or electrical contact with a high voltage overhead line)
from any recovery because, under § 752.008, the plaintiff would be required to pay
his own damages. Wolfenberger v. Houston Lighting & Power Co., 73 S.W.3d 444,
447–48 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). Relying on this doctrine,
Oncor argues that “a plaintiff who is injured as a result of contact with a high voltage
power line may not recover against the owner or operator of the power line where
the evidence conclusively establishes the plaintiff failed to comply with the
requirements of [Chapter 752].”
within six feet of a high voltage overhead line while performing the function or activity” when, as in this
case, the material at issue is already within six feet of a high voltage overhead line before the work begins.
TEX. HEALTH & SAFETY CODE ANN. § 752.004(a)(2) (emphasis added); see TEX. R. APP. P. 47.4.
–14–
According to Oncor, its circular indemnity defense based on §§ 752.001, .003,
.004, and .008 in this case required proof of the following four elements:
(1) the lines in question constituted “high voltage” “overhead lines” as
defined by § 752.001;
(2) Victor and Oscar did not provide Oncor with notice pursuant to Chapter
752;
(3) Victor and Oscar were responsible for the work, activity, or function at
issue; and
(4) Victor and Oscar brought a tool, equipment, machine, or material
within six feet of Oncor’s high-voltage overhead line.6
For simplicity, we refer to these purported elements as (1) the Voltage element,
(2) the Notice element, (3) the Responsibility element, and (4) the Six-Feet element.
C. We Assume Without Deciding that Oncor Has Identified the Elements to
Establish an Affirmative Defense, if any, Based on Chapter 752.
Oncor’s argument raises a preliminary question about whether a line owner or
operator may assert the indemnity provision in § 752.008 as an affirmative defense
to bar an injured plaintiff’s negligence claims. It also raises a question about how, if
at all, such an affirmative defense applies when, as in this case, there is more than
one plaintiff, particularly if only one is found to have violated Chapter 752.
Some of our sister courts have held that under the doctrine of circular
indemnity, a plaintiff who violates Chapter 752 and is injured by contact with a high
6
Victor and Oscar contend that Oncor had the burden to (1) submit a predicate question on the
applicability of an exemption found in § 752.002 and (2) prove that Victor and Oscar were within the reach
of the statute. Oncor contends that § 752.002 is inapplicable here. We need not address these arguments to
dispose of this appeal. See TEX. R. APP. P. 47.4.
–15–
voltage overhead line is barred from recovering damages from the line owner or
operator. See, e.g., Presley v. Gulf States Utils. Co., No. 09-10-00039-CV, 2010 WL
4264097, at *2–6 (Tex. App.—Beaumont Oct. 28, 2010, pet. denied) (mem. op.);
Trail v. Friedrich, 77 S.W.3d 508, 513–14 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied); Chavez v. City of San Antonio ex rel. City Public Serv. Bd. of San
Antonio, 21 S.W.3d 435, 438–440 (Tex. App.—San Antonio 2000, pet. denied). Cf.
Wolfenberger, 73 S.W.3d at 447–48 (plaintiff at least raised fact issue on application
of circular indemnity doctrine). Neither this Court nor the Supreme Court of Texas,
however, has addressed the issue or outlined the elements necessary to establish any
such affirmative defense.
We assume without deciding that §§ 752.001, .003, .004, and .008 of the
Texas Health and Safety Code establish an affirmative defense and that Oncor has
identified the essential elements necessary to establish such an affirmative defense,
if any, based on those sections. See TEX. R. APP. P. 47.4. We express no opinion on
whether any such affirmative defense exists under Texas law or on the elements
necessary to establish an affirmative defense, if any, under Chapter 752. See id. We
also express no opinion on how, if at all, the affirmative defense would apply in a
case such as this where there is more than one injured plaintiff. See id.
–16–
EVIDENCE ON ONCOR’S CHAPTER 752 AFFIRMATIVE DEFENSE
(ISSUE TWO)
A. Overview of Oncor’s Arguments on Appeal
We will address Oncor’s second issue first. Oncor contends that it
conclusively established its right to judgment under Chapter 752 because it
“conclusively established each necessary element of Oncor’s circular indemnity
defense as a matter of law.” Alternatively, it argues that “the evidence was too weak
to support the jury’s findings relating to the elements of Chapter 752.”
Oncor contends that the trial court submitted Question Nos. 2 and 3 to obtain
jury findings on the Responsibility and Six-Feet elements, respectively, of Oncor’s
Chapter 752 defense. Oncor acknowledges that the jury’s “NO” answers to these
questions constituted findings adverse to Oncor.7 Oncor challenges those findings
on appeal.
Our analysis below turns on the Responsibility element, addressed in jury
Question No. 2. Oncor argues that the evidence presented at trial conclusively
established that Victor and Oscar were “responsible for the work, activity, or
function” or, alternatively, that the evidence at trial was too weak to support the
jury’s adverse findings.
7
We discuss Question No. 2 below. In Question No. 3, the jury was asked: “On July 12, 2016 at the
time of the occurrence in question, were [Victor and Oscar] performing a function or activity that caused
any part of a tool, equipment, machine, or material to be brought within six feet of a high voltage overhead
line?” The jury answered “NO.”
–17–
With respect to the Six-Feet element (addressed in Question No. 3), Oncor
argues that the evidence conclusively established that Victor and Oscar brought part
of a tool, equipment, machine, or material within six feet of Oncor’s high voltage
overhead line or, alternatively, that the evidence was too weak to support the jury’s
adverse finding.
With respect to the Voltage element, Oncor contends that appellees’ counsel
stipulated as to the facts establishing the element and that the jury was instructed
accordingly.
With respect to the Notice element, Oncor contends that the trial court
submitted Question No. 4 to obtain a jury finding on that element. The jury answered
“NO” in response to Question No. 4, and Oncor contends that this constituted a
favorable finding establishing the Notice element of its affirmative defense.8
As we discuss below, after reviewing the record, we conclude that the
evidence supporting the jury’s answers to Question No. 2—relating to the
Responsibility element—is legally and factually sufficient, negating that element.
8
In Question No. 4, the jury was asked to answer “yes” or “no” as to each Victor, Oscar, and Alvarenga
with respect to the following:
Before the temporary work, activity, or function that [Victor and Oscar] were performing
at the time of the occurrence in question began, did any of those named below notify Oncor
of the work, activity, or function they would be performing at least 48 hours before the
work began, and negotiate a satisfactory mutual arrangement with Oncor to provide
temporary de-energization and grounding, temporary relocation or raising of its overhead
line, or temporary mechanical barriers to separate and prevent contact between the line and
the material or equipment involved in the work, activity, or function?
The jury was instructed that a “yes” answer must be based on a preponderance of the evidence and that if
it did not find that a preponderance of the evidence supported a “yes” answer, then it must answer “no.”
The jury answered “NO” as to Victor, Oscar, and Alvarenga in Question No. 4.
–18–
Thus, we need not address Oncor’s arguments regarding the other three elements of
its alleged Chapter 752 defense. See TEX. R. APP. P. 47.4.
B. The Evidence Supporting the Jury’s Adverse Findings in Question No. 2
Is Legally and Factually Sufficient.
Question No. 2, which related to the Responsibility element of Oncor’s
Chapter 752 affirmative defense, asked the jury the following:
Were any of the persons named below responsible for the work,
activity, or function Victor Quintanilla and Oscar Rosales were
performing on July 12, 2016[,] at the time of the occurrence in
question?
“Responsible for the work, activity, or function” means one who
desires to temporarily carry on the work and who therefore
exercises some degree of control over the worksite. Factors to be
considered to determine whether someone is responsible for the
work, activity, or function include:
(1) knowledge of the specific proposed location of the work;
(2) participation in deciding where the work will be
performed;
(3) presence at the worksite;
(4) involvement after hiring a contractor to perform services;
and
(5) ownership interest in the property where the work was
conducted.
The charge asked the jury to answer “Yes” or “No” as to Victor and Oscar,
separately. The jury answered “NO” as to both.
Chapter 752 does not define “person, firm, corporation, or association
responsible” for the work, activity, or function. See TEX. HEALTH & SAFETY CODE
–19–
ANN. §§ 752.001, .003. Here, the jury was provided with a definition and five non-
exclusive factors to consider when determining whether Victor and Oscar were
persons responsible for the work, activity, or function at issue. The definition and its
factors do not come from the plain-language of Chapter 752, nor do they seem to
take into account the provisions of § 752.003 that require a person responsible for
the work to pay for the line operator’s actual expenses in providing any agreed-upon
clearance of the lines. See id. §§ 752.003(c), (d). But there was no objection to the
form of Question No. 2, so we measure the legal and factual sufficiency of the
evidence against the charge as given. See Seger v. Yorkshire Ins. Co., Ltd., 503
S.W.3d 388, 407 (Tex. 2016) (legal sufficiency); Westview Drive Invs., LLC v.
Landmark Am. Ins. Co., 522 S.W.3d 583, 602 (Tex. App.—Houston [14th Dist.]
2017, pet. denied) (factual sufficiency). We express no opinion on whether the form
of Question No. 2, including the definition and factors listed therein, accurately
states Texas law. See TEX. R. APP. P. 47.4.
Oncor organizes its argument according to the five factors listed in
Question No. 2 and discusses Victor and Oscar together. So we will do the same.
1. Knowledge of the specific proposed location of the work
Oncor’s argument regarding the first factor consists of two sentences:
As to the first factor, the evidence presented at trial conclusively
established that [Victor and Oscar] were familiar with and had
knowledge of the location of the work to be performed. [RR 3:80-81,
135-138]. Moreover, they both testified that they could easily see
–20–
Oncor’s guy anchor and attached guy wires before they began digging
the bore pit in the exact same location. [RR 3:85, 120]
This argument and the cited portions of the record are inapposite. They do not
address or evidence Victor’s or Oscar’s having knowledge of a “proposed” location
of the work. The cited portions of the record, and other portions that Oncor ignores,
show that Victor and Oscar dug in the location staked by Frontier. Oncor does not
cite, and we have not found, evidence showing that the location Frontier had staked
was a “proposal” or that Victor and Oscar could have proposed a different location.
For example, Daryl McElroy, a regional supervisor for HMI, testified that
Frontier had told Alvarenga where to dig. Angel Alvarenga, an Alvarenga
supervisor, also testified that Frontier had told them where to dig and that Victor and
Oscar were told to dig the hole in the exact location they were because that is where
Frontier had staked it. He explained that the hole they were digging was in
preparation for a road bore; they were going to cross the road in that location because
there was a cross-connect box where they had to bring service from one side of the
road to that box, and they needed the hole in that location. Angel testified that
Frontier had placed stakes exactly where it wanted the new line.
Victor testified that his job was to dig a hole to put down telephone cable. He
testified that the location is marked by the telephone company. Victor explained that
he typically makes sure about where the hole is marked, waits for the order from his
supervisor to start digging, and then starts digging. Oscar, who had been working
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for Alvarenga only for a matter of months, agreed with Victor’s description of a
typical day and that it was accurate as to what happened on the day of the incident.
After reviewing the entire record, we conclude that the record does not
conclusively establish the first factor in jury Question No. 2 in Oncor’s favor. A
reasonable jury could conclude on this record that the first factor weighed against a
finding that either Victor or Oscar was responsible for the work, activity, or function
at issue.
2. Participation in deciding where the work will be performed
Oncor argues that the evidence at trial conclusively established the second
factor in Question No. 2 “because [Victor and Oscar] had some discretion in
determining the exact location of the bore pit and the manner in which the bore pit
would be dug.” According to Oncor, “it was undisputed at trial that both [Victor and
Oscar] exercised control over the location and nature of the work being performed
and were in a position to notify Oncor that they planned to excavate the guy anchor,
but simply chose not to do so.” Oncor contends that no one from Alvarenga or HMI
was supervising Victor and Oscar or providing them with guidance about how deep
or wide to dig the pit, that Victor and Oscar saw the guy anchor and guy wires and
chose to excavate the guy anchor anyway, and that Victor and Oscar had input and
responsibility amongst the two of them for determining how to perform the work.
–22–
To support its argument, Oncor cites the same evidence it cited in support of the first
factor, plus additional portions of Victor’s, Oscar’s, and Angel’s testimony.
Oncor’s argument again strays from the factor given to the jury: Participation
in deciding where the work will be performed. As discussed above with the first
factor, there is more than a scintilla of evidence that Victor and Oscar dug in the
location staked by Frontier and could not choose a different location for the pit. The
additional portions of the record Oncor cites do not demonstrate Victor’s or Oscar’s
participating in deciding “where” the work will be performed.
Even if a decision about “where” the work would be performed implicated a
decision about how deep to dig the hole or, specifically, a decision to excavate the
guy anchor, the evidence is not conclusive in Oncor’s favor. For example, McElroy,
the HMI regional supervisor, was asked: “And at that location why did they have to
dig as deep as they had to?” He answered, “If I recall, this was a road expansion.
And they were actually dropping the depths of the road, the whole area, so they had
to go deeper and move all the utilities over so it would be out of the roadway.”
Further, Victor testified that a supervisor ordered him to dig no more than four
feet and that it was not his judgment call, or his sole decision, as to how deep to dig.
He also testified that on the day of the incident, he did what he was told to do by his
employer and that he did the same task that he had done numerous times before.
Victor denied touching the guy wire or guy anchor, denied causing the guy
anchor to move, and denied digging the anchor completely out of the ground. Victor
–23–
also testified that he comes across guy wires “[a]lmost every day,” that he has
worked and dug around guy wires “[m]any times,” and that, in his experience, guy
wires are not hot. At one point, Victor was asked: “If [the job] calls for you to dig
around the guy wire, do you need to do anything different than what you would do
in the past?” He answered: “No. The same thing.”
Similarly, Oscar testified that on the day of the incident, he did what he was
told to do by his employer, that he dug up to the depth he was told to dig, that this
was the same task he had done numerous times before, and that he did not have any
reason to believe the guy wire was going to be hot. He further testified that he dug
around the anchor wire thinking it was safe; he had done so numerous times in the
past without issue. Oscar also denied moving the anchor or causing it to move.
Additionally, Angel denied that they removed the anchor and testified that
they worked around the anchor. And Johnny Dagenhart, appellees’ expert, testified
that he was not “so sure that [Victor and Oscar] intended to dig up the anchor itself.”
He testified, “They were digging a hole and the anchor happened to be there.”
Even if the evidence on some of these points was conflicting, the trier of fact
assesses the credibility of the witnesses and the weight to be given their testimony
and can accept all, part, or none of the testimony or make its own deductions from
the evidence. Cain v. Pruett, 938 S.W.2d 152, 159 (Tex. App.—Dallas 1996, no
writ). The jury as the trier of fact has the responsibility to judge the credibility of the
witnesses, to assign the weight to the witnesses’ testimony, and to resolve any
–24–
inconsistencies in the testimony. Id. The jury may accept or reject all or part of the
witnesses’ testimony. Id.Moreover, even if the presence of a supervisor is relevant, the evidence on
this point is also not conclusive in Oncor’s favor. Victor testified that a supervisor
was there when they arrived at the site. Angel, an Alvarenga supervisor, did testify
that no one from HMI or Frontier had come to watch and that Victor and Oscar were
left in the hole unsupervised. But he also testified about his coming to the site and
inspecting the scene before Victor and Oscar began digging and about how he saw
the markings on the ground and the guy wire before they started digging. Angel also
testified that he had been standing there when Victor and Oscar started digging and
stopped watching after they had dug out the first few feet. He further explained that
when he left Victor and Oscar, he was “across the street” taking a trailer off a truck.
Based on our review of the entire record, the evidence regarding the second
factor in Question No. 2 is not conclusive in Oncor’s favor. A reasonable jury could
conclude, on this record, that the second factor weighed against a finding that either
Victor or Oscar was responsible for the work, activity, or function at issue.
3. Presence at the worksite
There is no dispute that Victor and Oscar were present at the worksite. This is
where they were injured while performing their excavation work as Alvarenga
employees. This factor favors Oncor.
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4. Involvement after hiring a contractor to perform services
Oncor argues that the fourth factor in Question No. 2 was conclusively
established by testimony showing that Victor and Oscar were the only two persons
physically present at or in the bore pit at the time the work was performed. According
to Oncor, the evidence it cites shows that (1) the next nearest person was Angel, who
was approximately 300 feet away and did not observe Victor and Oscar as they
excavated the guy anchor, and (2) Angel testified that he had no idea that Victor and
Oscar were excavating, manipulating, or otherwise altering the position of the guy
anchor.9
Oncor’s argument is inapposite to the fourth factor in Question No. 2. Oncor
makes no argument and cites no evidence showing that Victor or Oscar hired a
contractor or that they were involved after another contractor was hired to perform
any services. And we have found no such evidence. Rather, the record reflects that
HMI was Frontier’s general contractor, that Alvarenga was HMI’s subcontractor,
and that Victor and Oscar were Alvarenga’s employees; nothing in the record
indicates that anyone else was hired for this excavation work.
Based on our review of the entire record, the evidence regarding the fourth
factor in Question No. 2 is not conclusive in Oncor’s favor. A reasonable jury could
9
As shown above, the record does not support Oncor’s contentions about what Angel’s testimony was
concerning his supervision of Victor and Oscar and their having moved the guy anchor. And the cited
portions of the record do not reflect that Angel was “approximately 300 feet away”; we have found no such
evidence.
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conclude that this fourth factor weighed against a finding that either Victor or Oscar
was responsible for the work, activity, or function at issue.
5. Ownership interest in the property where the work was conducted
Oncor acknowledges in its brief that Victor and Oscar “did not have an
ownership interest in the property where the work was being performed.” But Oncor
takes the position that we should “minimally consider that factor” and instead focus
on whether an employee had “some degree of control” over the worksite and the
actual work being performed. We reject Oncor’s argument.
The jury was instructed that it could consider whether Victor and Oscar had
an ownership interest in the property where the work was conducted when
determining whether Victor or Oscar was responsible for the work, activity, or
function at issue. It was not instructed to “minimally consider” this fifth factor.
When a case is tried to a jury and the party complaining on appeal did not
object to the charge (as in this case), the sufficiency of the evidence is measured
against the court’s charge, not some other law not identified in the charge. See
Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000). The jury was free to decide the
weight to assign to each of the five nonexclusive factors listed in the jury charge.
See Big Dog Logistics, Inc. v. Strategic Impact Corp., 312 S.W.3d 122, 136–37 (Tex.
App.—Houston [14th Dist.] 2010, pet. denied).
Based on our review of the record, the fifth factor in Question No. 2 is not
conclusive in Oncor’s favor and a reasonable jury could conclude that this factor
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weighed against a finding that either Victor or Oscar was responsible for the work,
activity, or function at issue.
6. One who desires to temporarily carry on the work and who
therefore exercises some degree of control over the worksite
Oncor concludes its discussion of the sufficiency of the evidence to support
the jury’s adverse findings on Question No. 2 by stating that the evidence
“conclusively established” that Victor and Oscar were both “the sole persons with
knowledge of and discretionary control over the specific work being performed and
the only two individuals who remained present at the worksite and remained
involved in the work at issue for the entirety of its duration.” It further argues:
“Alternatively, the evidence at trial was too weak to support the jury’s finding[s]
that [Victor and Oscar] were not responsible for the work.”
Oncor’s arguments concerning control over the worksite seem to derive from
the general definition set forth in Question No. 2. Specifically, the question defined
“[r]esponsible for the work, activity, or function” as “one who desires to temporarily
carry on the work and who therefore exercises some degree of control over the
worksite.” (Emphasis added.)10 Oncor cites three cases from our sister courts
(Chavez, 21 S.W.3d at 437–38, Presley, 2010 WL 4264097, at *6, and Trail, 77
S.W.3d at 509–13) and suggests that following those cases compels a conclusion
10
Oncor provides no argument and cites no evidence showing how either Victor or Oscar “desire[d] to
temporarily carry on the work.” A determination of the effect, if any, of Oncor’s failure to address the first
portion of the definition in Question No. 2 is not necessary to dispose of this appeal. See TEX. R. APP. P.
47.4.
–28–
that the evidence conclusively establishes that Victor and Oscar were responsible for
the work. Oncor’s argument is not persuasive for three reasons.
First, to the extent Oncor’s discussion of the factors in Question No. 2
addressed Victor’s and Oscar’s control over the worksite, Oncor’s arguments are
either not supported by the record or require this Court to ignore the evidence that
supports the challenged findings and to consider only the evidence that, in Oncor’s
view, is contrary to the adverse findings, as discussed above. Thus, Oncor’s legal-
and factual-sufficiency challenges to the jury’s answers to Question No. 2 are
contrary to our standards of review. See Dow Chem. Co., 46 S.W.3d at 241–42.
Second, Oncor’s reliance upon the cited cases is misplaced. The sufficiency
of the evidence in this case is measured against the court’s charge, not some other
law not identified in the charge. See Osterberg, 12 S.W.3d at 55. The charge defined
a person who is “[r]esponsible for the work, activity, or function,” and the jury was
then free to consider and weigh the five listed factors to determine if Victor or Oscar
fell within that definition. We defer to the jury’s role to weigh the factors listed in
Question No. 2. See Rangel v. Rivera, No. 14-14-00623-CV, 2015 WL 4930894, at
*3 (Tex. App.—Houston [14th Dist.] Aug. 18, 2015, no pet.) (mem. op.).
Third, the cases cited by Oncor are distinguishable. Each is a summary-
judgment case. And in each case, the evidence was uncontroverted that the person
injured (1) was working as a volunteer or independent contractor and not as an
employee or (2) was an employee who was not doing the job he had been instructed
–29–
to do by his employer or at the employer’s worksite. See Chavez, 21 S.W.3d at 437–
38 (person injured had volunteered to trim a tree for a friend’s mother); Trail, 77
S.W.3d at 509–13 (person injured was working on the roof of a building as an
independent painting contractor and the premises owner did not retain any right to
direct the details of the painter’s work); Presley, 2010 WL 4264097, at *1–2 (person
was injured when he raised the bed of his employer’s truck at an auto-parts store,
but the injured person had taken the truck to the store without telling his employer
rather than going to employer’s dig site as his employer had instructed).
By contrast, this is a jury-trial case. And the evidence about Victor’s and
Oscar’s control over the worksite was not uncontroverted. There was also no
contention that Victor or Oscar were volunteers (like in Chavez) or independent
contractors (like in Trail). Although Victor and Oscar were employees like the
plaintiff in Presley, there is more than a scintilla of evidence in this case that Victor
and Oscar were doing the job that their employer had instructed them to do: they dug
in the location where they had been told to dig, they were at the worksite where their
employer had instructed them to go, and they did their work while a supervisor was
either standing there watching them or was across the street.11
11
In its reply brief, Oncor cites Jordan v. Centerpoint Energy Houston Elec., LLC, No. 14-18-00663-
CV, 2019 WL 5565978, at *6 (Tex. App.—Houston [14th Dist.] Oct. 29, 2019, pet. denied) (mem. op.), for
the general definition of a person responsible for the work. But Jordan is another summary-judgment case,
and the person injured did not dispute on appeal that he alone controlled the work and was a person
responsible under § 752.003. Id. Oncor also cites AEP Tex. N. Co. v. SPA Pipe, Inc., No. 03-06-00122-CV,
2008 WL 5210919, at *6 (Tex. App.—Austin Dec. 12, 2008, pet. dism’d) (mem. op.), in its discussion of
Question No. 2 in its reply. But in that case, the court assumed without deciding that courts should consider
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After reviewing the entire record, the evidence relating to control over the
worksite is not conclusive in Oncor’s favor and a reasonable jury could conclude
that Victor and Oscar did not exercise some degree of control over the worksite.
7. Conclusion
Viewing the evidence in the light most favorable to the challenged findings,
we conclude that more than a scintilla of evidence supports the jury’s answers on
Question No. 2. Further, considering and weighing all of the evidence, we cannot
say that the evidence supporting the jury’s answers on Question No. 2 is so weak or
that the findings are so against the overwhelming weight of the evidence that the
findings are clearly wrong and unjust. Thus, the evidence is legally and factually
sufficient to support the jury’s adverse answers on Question No. 2.
Oncor did not conclusively establish the Responsibility element of its Chapter
752 defense or successfully challenge the jury’s adverse answers to Question No. 2.
Thus, we need not address the remaining elements addressed in jury Question Nos.
3 and 4. We overrule Oncor’s second issue.
EVIDENCE OF ONCOR’S NEGLIGENCE
(ISSUE ONE)
In its first issue, Oncor argues that there was factually and/or legally
insufficient evidence of Oncor’s negligence. In Question No. 1, the jury was asked,
whether a person had some degree of control over a worksite when determining who is a person responsible
for the work and then concluded that a fact issue existed on whether the movant had such control. See id.at *6 n.10.
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“Did the negligence, if any, of those named below proximately cause the occurrence
in question?” The jury was asked to answer “Yes” or “No” as to Victor, Oscar,
Alvarenga, and Oncor, separately. The jury answered “Yes” as to each.
Oncor argues that the jury’s negligence finding against Oncor is supported by
insufficient evidence because there is legally and/or factually insufficient evidence
of (1) foreseeability; (2) proximate cause; (3) negligence, duty, foreseeability, and
causation due to Chapter 752; and (4) negligence due to appellees’ trespass upon
Oncor’s chattel. We resolve this issue against Oncor.
A. Foreseeability
Oncor contends that there is legally and/or factually insufficient evidence that
its “use of a two-foot guy insulator posed a foreseeable risk of harm to [Victor and
Oscar].” It argues that “this occurrence, or some similar event” was unforeseeable
as a matter of law because it could have not foreseen that Victor and Oscar would
“excavate” the guy anchor without notice to or authorization from Oncor.
To support its position, Oncor contends that the undisputed evidence at trial
was that the guy wire, as installed, was incapable of becoming energized unless
tension on it was released. It then points to evidence that it contends shows that
utility poles commonly last seventy years or more and that the guy-wire system at
issue had existed for approximately thirty years without sagging or becoming
energized before Victor and Oscar purportedly “excavated the guy anchor.”
According to Oncor, guy-wire sagging is rare, the circumstances under which guy-
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wire sagging is expected were not present here, and the mere possibility of the
occurrence did not make it foreseeable.
In short, Oncor’s argument, as we understand it, is that as a matter of law,
Oncor’s guy-wire system as installed posed no foreseeable danger to Victor or
Oscar, or someone similarly situated who digs in proximity to a guy anchor. This is
because, in Oncor’s view, Victor’s and Oscar’s actions of purportedly digging up
the guy anchor without notice to Oncor was unforeseeable as a matter of law.
Oncor’s position ignores the evidence regarding the reasons why it installed
an insulator on the guy wire in the first instance (to protect people on the ground
from electrocution if the guy wire sags). Its argument is also contrary to Texas law
because it focuses on the foreseeability of the specific reason why this guy wire
sagged and not on the foreseeable danger that Oncor’s negligent act or omission
created for others. It is also construing the evidence in a light most favorable to
Oncor and ignoring the evidence favorable to the verdict, contrary to our standards
of review. See Dow Chem. Co., 46 S.W.3d at 241–42; Hoss, 338 S.W.3d at 651.
1. A reasonable jury could conclude that Oncor’s installing an
insulator that was too short to extend past the hot line created a
reasonably foreseeable danger of electrocution to Victor and
Oscar, or someone similarly situated.
Foreseeability means that an actor, as a person of ordinary intelligence, should
have anticipated the dangers that his negligent act or omission created for others.
Alcoa, Inc. v. Behringer, 235 S.W.3d 456, 460 (Tex. App.—Dallas 2007, pet.
denied). As we explained in Alcoa, Inc., the Texas Supreme Court uses the following
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two-prong test for foreseeability: (1) that the injury be of such a general character as
might reasonably have been anticipated, and (2) that the injured party should be so
situated with relation to the wrongful act that injury to him or one similarly situated
might reasonably have been foreseen. Id. (citing Mellon Mtge. Co. v. Holder, 5
S.W.3d 654, 655 (Tex. 1999)). “Foreseeability requires only that the general danger
of a harmful event occurring be foreseeable.” Sanmina-SCI Corp. v. Ogburn, 153
S.W.3d 639, 642 (Tex. App.—Dallas 2004, pet. denied). “The question of
foreseeability . . . involves a practical inquiry based on common experience applied
to human conduct.” Doe v. Boys Club of Greater Dallas, Inc., 907 S.W.2d 472, 478
(Tex. 1995) (internal quotation marks and citation omitted).
Following Texas law, the proper inquiry regarding the foreseeability element
of appellees’ negligence claims was whether a person of ordinary intelligence should
have anticipated that Oncor’s negligent act or omission—here, installing an
insulator that was too short to extend past the hot line if the guy wire sagged onto an
electrified jumper—created a reasonably foreseeable danger of electrocution to
Victor and Oscar, or someone similarly situated. See Alcoa, Inc., 235 S.W.3d at 460.
More than a scintilla of evidence demonstrated that the answer to that question was
yes. For example:
 Terry Mayo, Oncor’s distribution-standards manager and representative at
trial, testified that power companies must effectively insulate their guy wires
to prevent them from becoming electrified and to protect us all from
electrocution. He agreed that “[g]uy wires do sag” and that this occurs
–34–
“because the anchor moves,” “[i]f someone digs [the anchor] up,” and because
of “soil erosion.”
Mayo’s testimony evidenced that at least one reason why Oncor installs
insulators on guy wires is to prevent electricity from traveling to the ground
when the guy wire sags and contacts energized equipment; the insulator would
not allow enough current to flow through it.
Mayo also testified that the pole and guy wire at issue were subject to the 1984
National Electric Safety Code (NESC). The record reflects that as to guy
insulators, the NESC states: “Insulators shall be so placed that in case any guy
sags down upon another, the insulators will not become ineffective.” Mayo
testified that the pole was also governed by a design standard that Oncor
created and originally published in 1969 and that the intent behind that
standard was for the insulator to extend past the hot wire.
Mayo further testified that Oncor installs insulators to protect everyone on the
ground, including utility workers like Victor and Oscar, from electrocution.
He testified about how certain utility workers on the ground are particularly
at risk of being electrocuted: “[T]here’s a couple of different groups of people
that aren’t as educated about the hazards of electricity [as Oncor’s utility
workers] and that’s primarily children, and then other workers who are
working near utility lines.” Mayo explained that “[j]ust because you’re
working and a contractor and you’re working around energized equipment,
you’ve not necessarily been trained on the dangers.”
Mayo acknowledged that the insulator at issue did not extend past the hot wire
and that this included when the pole was built in 1986.
 Ian Neff, an HMI safety manager, testified about excavation workers like
Victor and Oscar as being among the types of utility workers who work near
energized equipment without appreciating the danger. He testified that
Alvarenga is an excavation-digging outfit and that excavation workers are
trained on below-ground dangers; they are not typically trained on aerial
dangers or on identifying inadequately insulated guy wires. Neff testified that
some crews like Alvarenga dig in proximity to anchors and guy wires every
day, all day, and that it is common practice to move underground utilities.
 Angel Alvarenga testified that Alvarenga “work[s] around saggy guy wires
all the time,” that he encounters sagging guy wires “[o]n a daily” basis, and
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that he saw sagging guy wires as he drove to court that day. He also testified
that the guy wire at issue was sagging before they started digging.
 Johnny Dagenhart, P.E., appellees’ electrical-engineering expert, testified
that the insulator is placed on the pole so electricity does not transmit to the
ground if the guy sags down “for whatever reason.” Dagenhart testified that
the insulator is there to protect everyone, even people digging up the anchor.
According to Dagenhart, these insulators have been used since at least 1977.
The record reflects that this guy-wire system was installed in 1986 to 1987.
According to Dagenhart, an inadequate safeguard or an ineffective fail-safe
was like a ticking time bomb and an “accident waiting to happen eventually.”
He also testified: “People are going to do expected activities. Digging a hole
in the ground is an expected activity. And, generally speaking, that’s taking
into account with the 811 dial-before-you-dig-type situation under most
circumstances now.” He further testified: “[T]he electric industry tries to take
into account the expected activities. And, hopefully, even people doing foolish
things sometimes and still not getting hurt.”
 Forest J. Smith, P.E., Oncor’s electrical-engineering expert, provided
testimony showing that the electrical-power industry has known since at least
the 1920s that guy wires sag and lose tension and that these things are
foreseeable to power companies. He also testified about an insulator’s role in
protecting people working on the ground near a utility pole. He testified that
a guy wire that contacts hot wires is an electrical hazard and that an insulator
is a safeguard that protects people when guy wires contact hot wires.
Smith also testified that the “whole reason for the insulator is to interrupt any
path to ground the current might take,” explaining that “an insulator . . . blocks
electric current from flowing.” He admitted that the “insulator was there to
protect Oscar and Victor.” Smith also agreed that the insulator at issue did not
extend past the hot wire when Victor and Oscar arrived at the worksite.
On this evidence, a reasonable jury could conclude that power companies like
Oncor have been aware for nearly a century that guy wires sag and lose tension. It
could also conclude that even if guy-wire sagging is not common (though there was
testimony evidencing it happens more regularly), Oncor understands that the
potential danger of a sagging guy wire is significant enough—particularly to
–36–
untrained utility workers—that Oncor has been installing insulators on its guy wires
for decades. Thus, a jury could reasonably conclude that Oncor’s installing an
insulator that was too short to extend past the hot line if the guy wire sagged created
a reasonably foreseeable danger of electrocution to Victor and Oscar, or someone
similarly situated.
2. Oncor’s foreseeability argument erroneously focuses on the
foreseeability of the precise manner by which Victor and Oscar
were injured.
In its challenge to the foreseeability element of appellees’ negligence claims,
Oncor focuses on how, in Oncor’s view of the evidence, the guy-wire system stood
before Victor and Oscar began digging. As we understand its argument, Oncor
contends that the guy-wire system could pose a danger only as it stood if someone
dug up the anchor and that such an occurrence is unforeseeable as a matter of law.
Oncor cites three cases from other jurisdictions to support its position: Hercules
Powder, Co. v. Disabatino, 188 A.2d 529 (Del. 1963), Rank v. Metro. Edison Co.,
87 A.2d 198 (Pa. 1952), and Greenwald v. N. States Power Co., 32 N.W.2d 320(Minn. 1948). We reject Oncor’s argument for four reasons.
First, Oncor’s foreseeability argument is premised on a contention that it was
entitled to notice of the work and had to authorize the work before it began; this
implicitly assumes that Chapter 752 applied to the excavation work at issue. As
discussed above, Oncor did not conclusively establish its Chapter 752 defense.
–37–
Second, Oncor’s focus on the foreseeability of the specific reason why this
guy wire sagged is contrary to Texas law. Foreseeability “does not require that a
person anticipate the precise manner in which injury will occur once he has created
a dangerous situation through his negligence.” Univ. of Tex. M.D. Anderson Cancer
Ctr. v. McKenzie, 578 S.W.3d 506, 519 (Tex. 2019). “It requires only that the general
danger, not the exact sequence of events that produced the harm, be foreseeable.”
Id. (internal quotation marks and citation omitted). “The test is not what the
[defendant] believed would occur,” and it does not “require that he anticipate just
how injuries will grow out of that dangerous situation.” Id. at 520 n.12 (citation
omitted, brackets in original). Rather, the issue is “whether he ought reasonably to
have foreseen that the event in question, or some similar event, would occur.” Trinity
River Auth. v. Williams, 689 S.W.2d 883, 886 (Tex. 1985).
Third, even if it were relevant, Oncor’s arguments that the guy-wire system
as it stood posed no foreseeable danger and that someone’s digging up the guy
anchor is unforeseeable as a matter of law are based on a view of the evidence that
is favorable to its position and that ignores the evidence favorable to the verdict. This
is contrary to our standards of review. See Dow Chem. Co., 46 S.W.3d at 241–42;
Hoss, 338 S.W.3d at 651. As shown above, multiple witnesses (including Dagenhart,
Mayo, Neff, Angel, Victor, and Oscar) provided testimony from which a reasonable
jury could conclude that the guy-wire system, as it stood, created a foreseeable
danger to others; that someone’s digging up a guy anchor is foreseeable; that guy
–38–
wires can sag due to things like soil erosion; that this guy wire was sagging before
the work began; and that guy-wire sagging occurs often.
Although Oncor solicited testimony that Victor’s and Oscar’s actions, as
Oncor views them, were not foreseeable and that Oncor has reason to expect that
members of the working public will comply with Chapter 752 (assuming it applies),
the jury was free to reject it. See City of Keller, 168 S.W.3d at 819–20; Golden Eagle
Archery, Inc., 116 S.W.3d at 761; Cain, 938 S.W.2d at 159. Moreover, the trial court
admitted into evidence Oncor’s “Safety Smart–Know the Law” brochure discussing
Chapter 752. That brochure stated that responsible parties who violate Chapter 752
are subject to criminal penalties. See TEX. HEALTH & SAFETY CODE ANN. § 752.007
(imposing a criminal penalty for violations of Chapter 752). Evidence of the
existence of a criminal penalty for a Chapter 752 violation was some evidence that
work performed in violation of the statute was reasonably foreseeable.
Fourth, the three decades’ old cases cited by Oncor from other jurisdictions
are distinguishable and not persuasive. In Hercules Powder, a man was killed after
he grasped a hanging guy wire that had been cut loose from its anchor by an
unknown third person. 188 A.2d at 531. At the trial of that case in the early 1960s,
all experts agreed that as installed and attached to their anchors, the guy wires in
question were in no way dangerous, could not possibly have become energized, and
would not readily become loosened. Id. at 531–33. Here, there was no such
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agreement. Indeed, Dagenhart’s testimony was essentially that Oncor’s installing an
insulator that was too short to extend past the hot line was a ticking time bomb.
In Greenwald, a man located in a rural area was electrocuted and killed when
he disconnected an uninsulated guy wire at the anchor. 32 N.W.2d at 320–21. But in
that case from the 1940s, the evidence was that insulators were not used in rural
regions. Id. at 321. On the record before it, the court concluded that “[t]he guy wires
were so installed as to involve no danger at all to persons on the ground” and that
“was the full measure of defendant’s duty to decedent.” Id. at 322. In the instant
case, however, the record contains evidence showing that Oncor acknowledges it
owes a duty to insulate its guy wires to protect the public, including workers like
Victor and Oscar, from electrocution. Unlike Greenwald, there was evidence in this
case, based on events taking place decades later, that the guy wire at issue was
supposed to be insulated and the insulator was supposed to extend past the hot wire.
In Rank, the court expressly declined to address whether a plaintiff’s
detachment of a guy wire from an anchor fell within a foreseeable orbit of danger
and instead assumed negligence on the part of the defendant. 87 A.2d at 199–200.
The court did not hold, as Oncor contends, that “inadequately insulated guy wires
pose no foreseeable risk of harm where guy wire had remained in original condition
and had never become energized in 16 years since installation.”
Oncor attempts to liken the facts of this case to those in the above three cases
by referring to Mayo’s testimony that he has “not known anyone at Oncor to have
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been injured or killed by sagging guy wires.” Oncor fails to acknowledge that in the
next question, Mayo was asked: “But that’s the reason they started putting insulators
on guy wires 50 years ago.” And he answered: “It is part of the code.” Oncor’s
argument also ignores testimony from Mayo, Dagenhart, and Smith evidencing that
the code and/or design standards applicable here required the insulator to extend past
the hot line at issue.
All three cases cited by Oncor were issued years, if not decades, before the
1984 NESC and 1969 Oncor design standards applicable to the pole at issue. Even
if Oncor solicited different opinions on the proper interpretations of those standards
at trial, the jury was free to reject that testimony. See City of Keller, 168 S.W.3d at
819–20; Golden Eagle Archery, Inc., 116 S.W.3d at 761; Cain, 938 S.W.2d at 159.
Oncor also cites Dyess v. Harris, 321 S.W.3d 9, 13–15 (Tex. App.—Houston
[1st Dist.] 2009, pet. denied), and Stumph v. Dallas Fire Insurance Co., 34 S.W.3d
722, 730 (Tex. App.—Austin 2000, no pet.), to argue that the mere existence of a
result that was within the realm of possibilities does not make a risk of harm
reasonably foreseeable. But Oncor’s reliance upon these cases is misplaced. Dyess
concerns whether the defendants could have reasonably foreseen the criminal acts
of a third party; this is not an issue raised in this case. See 321 S.W.3d at 13–17
(involving foster parents and foster-care agency being sued for negligence after a
foster child who was placed in the foster parents’ home sexually assaulted another
child in the home). Stumph is an insurance-policy-interpretation case that does not
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address or even use the word “negligence.” See 34 S.W.3d at 724–34. Both cases are
inapposite to the foreseeability analysis of appellees’ negligence claims.
Accordingly, we reject Oncor’s arguments challenging the foreseeability
element of Victor’s and Oscar’s negligence claims.
B. Proximate Cause
Oncor next argues that Victor and Oscar “presented legally and/or factually
insufficient evidence of proximate causation.” According to Oncor, this is because,
in its view, “[Victor’s and Oscar’s] decision to excavate the guy anchor without
authorization or notice to Oncor, causing the guy wire to become energized, was
entirely unforeseeable as a matter of law and severed the chain of proximate
causation.” Oncor’s argument, as we understand it, is that the evidence conclusively
demonstrates that Victor’s and Oscar’s actions, as Oncor views them, constituted a
new and independent cause.
This argument again assumes that Chapter 752 applied to the work at issue
and that Victor and Oscar violated that chapter. As shown above, Oncor did not
conclusively establish its Chapter 752 defense.
Regardless, Oncor’s argument misconstrues Texas law governing new and
independent cause. A new and independent cause of an occurrence is the act or
omission of a separate and independent agent, not reasonably foreseeable, that
destroys the causal connection, if any, between the act or omission inquired about
and the occurrence in question. Columbia Rio Grande Healthcare, L.P. v. Hawley,
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284 S.W.3d 851, 856 (Tex. 2009). The theory of new and independent cause is a
component of the proximate-cause issue that a jury may consider in determining the
existence or non-existence of proximate cause. Id.“[U]nder Texas law, a new and independent cause that extinguishes the
liability of a party cannot arise out of an affirmative act of negligence by either the
plaintiff or the defendant.” Biaggi v. Patrizio Rest. Inc., 149 S.W.3d 300, 305 (Tex.
App.—Dallas 2004, pet. denied). “The defensive issue of new and independent
cause can be raised and attributed only to some outside agency operating to cause
the complained-of injury.” Id. As a result, any negligence by Victor or Oscar, even
if it contributed to each of their own injuries, did not act to extinguish Oncor’s
liability for injuries caused by its own negligence. See id. at 305–06.
In fact, none of the authorities cited by Oncor in support of its proximate-
cause argument are on point. For example, Oncor cites Timberwalk Apartments,
Partners, Inc. v. Cain, 972 S.W.2d 749, 753, 758 (Tex. 1998), and Bos v. Smith, 556
S.W.3d 293, 304–05 (Tex. 2018). But both cases concerned whether the defendant
owed a duty to protect someone from the criminal acts of a third party. Here, Oncor
is complaining about Victor’s and Oscar’s acts, not the criminal acts of a third party.
Oncor also cites Seaway Products Pipeline Co. v. Hanley, 153 S.W.3d 643,
658 (Tex. App.—Fort Worth 2004, no pet.). In that case, a third-party excavator had
ruptured a pipeline company’s pipeline. Id. at 647–48. The pipeline company then
sued the developers of the land based on the theory that the developers were
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negligent by platting the lot so that the pipeline would run under the front of the lot
rather than on the back or sides of the lot. Id. In the portion of the case cited by
Oncor, the court was addressing whether the developers could have foreseen that
their platting of a lot so that the pipeline ran under the front of the lot could have led
to the third-party excavator’s rupture of the pipeline. Id. at 658. The court did not
hold that the pipeline company’s own actions (who are in the same posture as Victor
and Oscar here) constituted a new and independent cause that severed the chain of
proximate cause. See id.Oncor also cites Alabama Power Co. v. Moore, 899 So. 2d 975, 977 (Ala.
2004). According to Oncor, the Moore court held that a “directed verdict was proper
in favor of an electric utility where the plaintiff [had] used tools to remove a guy
wire from a guy anchor, causing the guy wire to lose tension and become energized
after touching an energized ‘stinger’ wire.” But the utility company in Moore did
not dispute that it was negligent in maintaining the utility pole and guy wire. Rather,
the Moore court held that the plaintiff’s intentional actions “superseded any alleged
negligence or wantonness” of the utility company. Id. at 980. Oncor fails to
recognize, however, that Moore was decided under Alabama law—and Alabama
(unlike Texas) is a contributory-negligence state.12 Thus, the analysis in Moore does
not comport with the law in Texas. See Biaggi, 149 S.W.3d at 305–06.
12
In Alabama, “[c]ontributory negligence on the part of a plaintiff [that] proximately contributes to the
plaintiff’s injuries will bar recovery.” Creel v. Brown, 508 So. 2d 684, 687–88 (Ala. 1987); see also
Hawkins v. Simmons, 295 So. 3d 683, 688 (Ala. Civ. App. 2019).
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Accordingly, we reject Oncor’s contention that Victor’s and Oscar’s actions,
even as Oncor views them, constituted a new and independent cause that severed the
chain of proximate causation.
C. Negligence, Duty, Foreseeability, and Causation Due to Chapter 752
Oncor’s third argument is that there is legally and/or factually insufficient
evidence of “negligence, duty, foreseeability, and causation due to [Victor’s and
Oscar’s] failure to comply with the notice requirements of Chapter 752 of the Texas
Health and Safety Code.” According to Oncor, “Where a statutory scheme exists for
making utilities aware of work that may interfere with the utility’s infrastructure, it
is unforeseeable that individuals will be injured by a utility’s infrastructure where
the party failed to notify the utility before beginning the work.” Oncor then argues:
Here, [Victor and Oscar] presented legally and/or factually insufficient
evidence of negligence, duty, foreseeability[,] and causation[] because
they presented legally and/or factually insufficient evidence that
anyone provided Oncor with any type of notice required by Chapter
752. In fact, the evidence presented at trial conclusively established that
no one provided Oncor with any type of notice required by Chapter 752.
Oncor further contends that it had “no duty to foresee that someone would be
conducting work that would cause them to excavate the guy anchor and reposition
the guy wire to come into contact with Oncor’s high voltage overhead lines because
Oncor had received no notice under Chapter 752.” And, it argues, “Oncor could not
have foreseen that [Victor and Oscar] would perform their work in such a reckless
manner as to cause the type of occurrence at issue in this case.” Oncor’s arguments
are unpersuasive.
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Oncor’s position appears to be that when a statutory scheme exists for making
utilities aware of work that may interfere with the utility’s infrastructure, it is
unforeseeable as a matter of law that individuals will be injured by a utility’s
infrastructure when the party failed to notify the utility before beginning the work.13
Oncor cites two cases to support its argument, but neither case stands for such a
broad proposition. See Seaway Prods. Pipeline Co., 153 S.W.3d at 658 (holding
pipeline company offered no summary-judgment evidence demonstrating that the
rupture of its pipeline by a third-party excavator was foreseeable to the developers
when they platted the lot so that pipeline ran in the front of the lot); Hanus v. Tex.
Utils. Co., 71 S.W.3d 874, 877, 882–84 (Tex. App.—Fort Worth 2002, no pet.)
(holding that a plaintiff did not present summary-judgment evidence showing that
power company’s decision to bury power lines created a duty to warn the
homeowners of the dangers associated with buried power line).
Further, Oncor is merely repeating its contentions that (1) it could not have
foreseen the specific manner in which this incident occurred and (2) Victor’s and
Oscar’s actions, as Oncor views them, constitute a new and independent cause. As
discussed above, these positions are contrary to Texas law, based on a view of the
13
Oncor’s argument is again premised on an unstated assumption that Oncor conclusively proved that
it was entitled to notice of the work under Chapter 752 and that the required notice was not provided. As
shown above in our discussion of Oncor’s second issue, Oncor did not conclusively prove at least one
element necessary to establish its alleged affirmative defense under Chapter 752. We express no opinion
on whether, on this record, Oncor proved or obtained findings from the jury that Oncor was entitled to but
did not receive notice under Chapter 752 in this case. See TEX. R. APP. P. 47.4.
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evidence that is contrary to our standards of review, or both. See McKenzie, 578
S.W.3d at 519 (discussing foreseeability of manner in which incident occurred);
Biaggi, 149 S.W.3d at 305–06 (discussing new and independent cause).
Oncor contends that in Mountain States Telephone & Telegraph Co. v. Vowell
Construction Co., 341 S.W.2d 148, 150 (Tex. 1960), the Supreme Court of Texas
held that a “telephone company could not have foreseen that city would excavate its
telephone cable where city never informed company that it would be conducting
work near underground cable.” We disagree. In that case, a telephone company
asserted a trespass claim against a contractor, and the court analyzed whether the
evidence at trial conclusively established that the construction company had
committed a trespass by severing a cable that was lawfully located in the street. See
341 S.W.2d at 149–51. Chapter 752 was not at issue in that case, nor was any other
statutory scheme for making utilities aware of work that may interfere with the
utility’s infrastructure. The court did not analyze whether the contractor’s actions
were reasonably foreseeable to the telephone company; the words “foresee” and
“inform” do not appear, in any variation, in the opinion at all. See id. at 148–51.
Finally, Oncor cites Bryant v. Gulf Oil Corporation, 694 S.W.2d 443, 446
(Tex. App.—Amarillo 1985, writ ref’d n.r.e.), regarding the duties owed by an
occupier of premises to the employees of an independent contractor. But Bryant is
distinguishable because it was a premises liability case, the defendant had “no
control over the installation or the maintenance of the highline,” and the case did not
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concern the foreseeability of whether the employee of a subcontractor may engage
in work without providing a utility with notice required by any particular statute. See
id. at 446–47. The instant case was submitted to the jury as an ordinary negligence
case, and the evidence supporting the jury’s ordinary-negligence finding against
Oncor is what Oncor is challenging on appeal.
Accordingly, and after reviewing the entire record, we reject Oncor’s
contention that Victor’s and Oscar’s actions, even as Oncor views them, rendered
the evidence of “negligence, duty, foreseeability, and causation” legally or factually
insufficient.
D. Trespass Upon Oncor’s Chattels
Oncor’s fourth challenge to the evidence supporting the negligence finding is
premised on the notion that Victor and Oscar were trespassers to Oncor’s chattels.
Oncor argues: “Because [Victor and Oscar] were trespassers, the evidence of
negligence at trial was legally and/or factually insufficient.” Oncor contends that
Victor and Oscar “excavated” the guy anchor and caused the guy wires to change
position and that by doing so, they became trespassers as to Oncor’s chattels. Thus,
it argues, “Oncor did not owe them a duty of ordinary care in negligence in installing
and maintaining the guy anchor or guy wires.” Instead, Oncor contends that it is not
liable “absent a showing of gross negligence.”
“A detention of personalty lawfully obtained, after demand, is a wrongful act
constituting a trespass.” Zapata v. Ford Motor Credit Co., 615 S.W.2d 198, 201
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(Tex. 1981). And as this Court has explained, “A trespass to chattels is a wrongful
interference with or injury to property that causes actual damage to the property or
deprives the owner of its use for a substantial period of time.” Armstrong v.
Benavides, 180 S.W.3d 359, 363 (Tex. App.—Dallas 2005, no pet.). Oncor did not
make any argument about trespass to chattels until after the jury’s verdict. No
question or instruction was requested by Oncor about appellees’ “detention of
personalty” or “injury to property.” See Zapata, 615 S.W.2d at 201; Armstrong, 180
S.W.3d at 363. Instead, based on instructions requested by Oncor, the jury
considered whether Oncor’s negligence was a proximate cause of appellees’ injuries.
The same question and instruction also inquired about appellees’ negligence, and the
jury made findings accordingly. As we have discussed, there was legally and
factually sufficient evidence to support the jury’s findings. Consequently, we reject
Oncor’s contention that “the evidence was legally and/or factually insufficient to
establish negligence as to a trespasser.”
E. Conclusion
Viewing the evidence in the light most favorable to the challenged finding,
we conclude that more than a scintilla of evidence supports the jury’s negligence
finding against Oncor in Question No. 1. Further, considering and weighing all of
the evidence, we cannot say that the evidence supporting the jury’s negligence
finding as to Oncor on Question No. 1 is so weak or that the finding is so against the
overwhelming weight of the evidence that the finding is clearly wrong and unjust.
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Thus, the evidence is legally and factually sufficient to support the jury’s finding
against Oncor in Question No. 1, and we reject all of Oncor’s arguments to the
contrary. We overrule Oncor’s first issue.
JURY CHARGE ERROR
(ISSUES THREE AND FOUR)
A. Submission of HMI’s Negligence to the Jury (Issue Three)
In its third issue, Oncor contends that the trial court erred by failing to include
HMI, the general contractor, on the verdict form for determinations of negligence
(Question No. 1) and proportionate responsibility (Question No. 5). As discussed
above, Question No. 1 asked, “Did the negligence, if any, of those named below
proximately cause the occurrence in question?” In Question No. 5, the jury was
asked to assign percentages of responsibility only to those the jury found had caused
or contributed to the occurrence in Question No. 1.
HMI was not a party to this case. But prior to trial, the trial court granted
Oncor’s motion to designate HMI as a responsible third party. HMI’s status as a
designated responsible third party, however, did not guarantee HMI’s inclusion on
the verdict form. “A trial court may not submit a question to the jury regarding the
conduct of any person without sufficient evidence to support the submission.”
Gregory v. Chohan, 615 S.W.3d 277, 298 (Tex. App.—Dallas 2020, pet. granted)
(en banc) (citing TEX. CIV. PRAC. & REM. CODE ANN. § 33.003(b)).
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1. Governing law
A party has produced sufficient evidence to support submission of a question
to the jury when it provides more than a scintilla of evidence of potential
responsibility for the claimed injury. Id. “To support a finding that a third party was
responsible based on negligence, a defendant must produce evidence of a legal duty
owed to the claimant by the third party, a breach of that duty, and damages to the
claimant proximately caused by the breach of the duty.” In re Kilmer,
No. 05-20-00814-CV, 2021 WL 1290734, at *3 (Tex. App.—Dallas Apr. 7, 2021,
orig. proceeding) (mem. op.) (citation omitted).
Thus, the trial court erred by failing to include HMI on the verdict form on
Question Nos. 1 and 5 only if there was legally sufficient evidence that (1) HMI, the
general contractor, owed Victor and Oscar, the employees of a subcontractor, a duty
of ordinary care; (2) HMI breached that standard of care; and (3) such breach was a
proximate cause of the occurrence. See TEX. CIV. PRAC. & REM. CODE ANN.
§ 33.003(b); Gardner Oil, Inc. v. Chavez, No. 12-10-00274-CV, 2012 WL 1623420,
at *6 (Tex. App.—Tyler May 9, 2012, no pet.) (mem. op.) (“The trial court should
not allow the submission of a question to the jury regarding conduct of a responsible
third party where there is not sufficient evidence to support the submission.”).
As a general rule, one who employs an independent contractor has no duty to
ensure that the contractor performs its work in a safe manner. AEP Tex. Cent. Co. v.
Arredondo, 612 S.W.3d 289, 295 (Tex. 2020). An exception exists when “the
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employer retains some control over the manner in which the contractor performs the
work that causes the damage.” Id. (internal quotation omitted). If the right to control
an independent contractor’s work exists, then a duty arises regardless of whether
actual control is exercised. Id.In evaluating whether a duty is owed, we consider that an employer must have
some latitude to tell its independent contractors what to do, in general terms, without
becoming subject to liability. Id. The duty arises where the right to control extends
to “the means, methods, or details of the independent contractor’s work” such that
the contractor “is not entirely free to do the work in his own way.” Id. (internal
quotation omitted). Further, the control must relate to the condition or activity that
caused the injury. Id. No duty of care arises with respect to an independent
contractor’s work by virtue of the employer’s general right to order work started and
stopped, to direct when and where the work is done, to require that work be done by
a certain time, or to control activities that have “nothing to do with the resulting
injury.” Id.; see also JLB Builders, L.L.C. v. Hernandez, 622 S.W.3d 860, 865 (Tex.
2021) (“[C]ontrol must relate to the condition or activity that caused the injury.”
[internal quotation omitted]).
2. Oncor’s arguments regarding the existence of a legal duty owed by
HMI to Victor and Oscar
We can ascertain three reasons from Oncor’s briefing as to why it contends
HMI, the general contractor, owed a legal duty to Victor and Oscar. But none of
those reasons establishes error in the trial court’s refusal to submit HMI on the
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verdict form. Oncor’s arguments either are not supported by the record or do not
demonstrate that there was sufficient evidence that HMI retained a right to control
any activities that had anything to do with Victor’s and Oscar’s being electrocuted.
a. Staking the digging area
Oncor contends there was a fact question on whether HMI “incorrectly staked
the dig area.” It claims that Angel “attested that [HMI] staked the digging area of the
project.” But the cited portions of the record contain no such testimony, and we have
found none. The record reflects that Frontier staked the digging area.
b. Training of Alvarenga’s employees
Oncor contends there was a fact question as to whether HMI “failed to ensure
[that] Alvarenga [had] properly trained its employees.” According to Oncor,
Dagenhart testified that HMI “had a responsibility to ensure [that] Alvarenga
provided proper training to its employees” and that “he would expect any
experienced person from [HMI] with any knowledge of OSHA regulations . . . to
recognize that [Victor and Oscar] were not doing the job correctly.” It also contends
that McElroy, the HMI regional supervisor, “testified [that] if he had been at the site
during the dig[, then] he would have addressed the situation.”
In making these arguments, Oncor suggests that Dagenhart’s and McElroy’s
testimony evidenced that HMI owed Victor and Oscar a legal duty to ensure that
Alvarenga’s employees received OSHA training on aerial dangers. Oncor is taking
the cited testimony out of context. In the cited portions of the record, Dagenhart and
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McElroy were testifying about Victor’s and Oscar’s placing the spoil pile on the
edge of the trench and about the absence of any shoring in the bore pit. This
concerned an issue about whether Victor and Oscar had obtained OSHA training.
They were not testifying about any training that related to digging near a guy anchor.
Oncor cites nothing in the record demonstrating that the location of the spoil
pile or Alvarenga’s not providing Victor and Oscar with OSHA training relating to
same proximately caused their being electrocuted. See JLB Builders, L.L.C., 622
S.W.3d at 865; AEP Tex. Cent. Co., 612 S.W.3d at 295; see also Townley v. Lanier,
No. 14-19-00447-CV, 2021 WL 2325082, at *4 (Tex. App.—Houston [14th Dist.]
June 8, 2021, pet. denied) (mem. op.) (overruling complaint trial court erred by
omitting designated responsible third party from jury charge because appellant did
not cite any portion of the record regarding the contributory conduct of the
responsible third party). There was evidence, however, to the contrary. For example,
McElroy, the HMI regional supervisor, was asked: “[Did t]he spoil piles and the
shoring have anything to do [with] why Victor and Oscar got electrocuted?” He
answered: “No, sir.” He further testified:
Q. . . . . You’re a workplace safety guy. If Oscar and Victor
had went through the OSHA 10 training, would you have anticipated
that they would understand the dangers of an uninsulated guy wire?
A. No, sir.
Q. That’s not something you all go over in OSHA training, is
it?
A. No, sir.
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Neff, an HMI safety manager, also provided testimony showing that OSHA training
for excavation workers would typically not include training on above-ground
electrical hazards. Thus, even if there were evidence that HMI owed a duty to ensure
that Alvarenga had provided Victor and Oscar with OSHA training and that HMI
had breached that duty, Oncor points to no evidence showing that such failure had
anything to do with Victor’s and Oscar’s injuries.
c. Supervision of the worksite
Oncor argues there was a fact question regarding HMI’s failure “to adequately
supervise the worksite.” According to Oncor, HMI “retained some responsibility for
the worksite” as the general contractor and that, under its contract with Alvarenga,
HMI retained rights to the worksite related to inspections, safety, and plan changes.
To support this position, Oncor cites, without explanation, paragraphs 14, 15, and
22(e) of the contract between HMI and Alvarenga. It then references testimony that
it contends shows HMI “was not on site to supervise the digging project,” suggesting
that HMI breached a duty to supervise Victor and Oscar.
Oncor provides no argument, cites no legal authority, and cites nothing in the
record to explain how paragraph 14, 15, or 22 of the HMI–Alvarenga contract
provided HMI with a right to retain control over the means, methods, or details of
the work that related to a condition or activity that caused Victor’s and Oscar’s being
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electrocuted; and we can ascertain no such explanation.14 See TEX. R. APP. P. 38.1(i);
Townley, 2021 WL 2325082, at *4. Oncor’s position is not that HMI had a duty to
provide Chapter 752 notice. Oncor made this clear in its reply brief, stating: “[T]here
was insufficient evidence to submit Chapter 752 responsibility for [HMI] . . . because
[it] did not authorize or know about the guy anchor excavation.”
In its reply brief, Oncor raises two new arguments as to why it contends HMI
owed Victor and Oscar a legal duty—namely, that HMI failed to exercise reasonable
care in selecting Alvarenga as an independent contractor and that HMI has liability
if it authorized a trespass to Oncor’s chattels. But we cannot consider matters raised
for the first time in a reply brief. See Sanchez v. Martin, 378 S.W.3d 581, 590 (Tex.
App.—Dallas 2012, no pet.).
Accordingly, Oncor failed to demonstrate that there was sufficient evidence
to support the submission of HMI’s negligence and proportionate responsibility to
the jury. Thus, we conclude that the trial court did not err by refusing to grant
14
Paragraph 14 provides that HMI shall have access to the work; that materials furnished and
workmanship performed by Alvarenga are subject to HMI’s inspection; and that if material or work is found
defective or not in conformity with drawings, plans, or specifications, then Alvarenga is required to correct
and replace the material or work.
In paragraph 15, HMI reserved the right to make changes to the drawings, plans, specifications, and
other work before and during the work.
In Paragraph 22, Alvarenga promised to comply with all applicable safety rules, laws, and regulations,
including OSHA, during the performance of its work under the contract. In subparagraph (e), Alvarenga
promised to cooperate with any safety inspections or audits.
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Oncor’s request to submit HMI in the verdict form on Question Nos. 1 and 5. We
overrule Oncor’s third issue.
B. Omission of Instruction from Question No. 3 (Issue Four)
In its fourth issue, Oncor contends the trial court erred by failing to include an
instruction in Question No. 3. That question asked: “On July 12, 2016[,] at the time
of the occurrence in question, were [Victor and Oscar] performing a function or
activity that caused any part of a tool, equipment, machine, or material to be brought
within six feet of a high voltage overhead line?” The jury answered: “NO.”
Oncor had requested the following instruction to be included with
Question No. 3:
You are instructed that a person brings a tool, equipment,
machine, or material within six feet of a high voltage overhead line if
the person causes any part of the tool, equipment, machine, or material
that is already within six feet of a high voltage overhead line to make
physical contact with the high voltage overhead line or to come closer
to the line than it existed before the person acted.
Appellees objected to Oncor’s tendered instruction as constituting an improper
comment on the weight of the evidence. The trial court sustained appellees’
objection, signed a tender sheet striking the instruction from Oncor’s proposed
Question No. 3, and submitted Oncor’s proposed Question No. 3 as modified. Oncor
subsequently objected to the omission of its proposed instruction on grounds that its
instruction was consistent with Texas law and would assist the jury. The trial court
implicitly overruled Oncor’s objection by stating: “[T]he Court’s previous rulings
stand.” See TEX. R. APP. P. 33.1(a)(2)(A).
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On appeal, Oncor argues that the trial court erred by omitting Oncor’s
proposed instruction in Question No. 3 and that such error was harmful because it
related to a contested, critical element of Oncor’s Chapter 752 defense and probably
caused the rendition of an improper verdict.
Oncor, however, fails to challenge the trial court’s ruling sustaining appellees’
objection that the proposed instruction constituted an improper comment on the
weight of the evidence. A proposed jury instruction that is otherwise in accordance
with Texas law may nonetheless be objectionable if it constitutes an improper
comment on the weight of the evidence. See Briones v. Sharkey,
No. 04-11-00584-CV, 2012 WL 3776488, at *2 (Tex. App.—San Antonio Aug. 31,
2012, no pet.) (mem. op.). Because Oncor does not challenge all independent
grounds for the trial court’s ruling, we overrule Oncor’s fourth issue. See Herczeg v.
City of Dallas, No. 05-19-01023-CV, 2021 WL 1169396, at *2 (Tex. App.—Dallas
Mar. 29, 2021, pet. denied) (mem. op.), cert. denied, No. 22-128, 2022 WL 4654650(U.S. Oct. 3, 2022).
Error, if any, in refusing Oncor’s requested instruction in Question No. 3 is
also harmless. TEX. R. APP. P. 44.1(a). Like Question No. 2, Question No. 3 asked
the jury to make a finding that Oncor contends was essential to establishing its
alleged Chapter 752 defense. Because we conclude above that the evidence is legally
and factually sufficient to support the jury’s adverse findings on Question No. 2, any
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error in Question No. 3 is immaterial and harmless.15 See TEX. R. APP. P. 44.1(a).
Thus, we overrule Oncor’s fourth issue for this additional, alternative reason.
IMPROPER JURY ARGUMENT
(ISSUE FIVE)
In its fifth issue, Oncor argues that appellees’ counsel engaged in incurable
jury argument during closing argument by (1) misstating the law regarding a material
already within six feet of an overhead line under Chapter 752 and (2) providing an
invalid basis, not supported by the evidence, upon which the jury could have held
Oncor liable for negligence. We resolve this issue against Oncor.
A. Preservation of Error
Appellate complaints of improper jury argument must ordinarily be preserved
by timely objection and request for an instruction that the jury disregard the improper
remark. Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009). Oncor made no such
objection or request during appellees’ counsel’s closing argument. Nonetheless, a
complaint of incurable jury argument may be asserted and preserved in a motion for
new trial, even without a complaint and ruling during the trial. See TEX. R. CIV. P.
324(b)(5). Because Oncor raised its incurable-argument contentions in its motion for
new trial, which the trial court denied, Oncor preserved this issue for our review.
15
We express no opinion on whether Question No. 3 accurately stated Texas law or requested a finding
on an essential element of an affirmative defense, if any, established by §§ 752.001, .003, .004, and .008 of
Chapter 752. Nor do we express any opinion on whether the instruction that Oncor requested in Question
No. 3 accurately stated the law.
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B. Law Governing Incurable Jury Argument
Incurable jury argument is rare. Arthur J. Gallagher & Co. v. Dieterich, 270
S.W.3d 695, 707 (Tex. App.—Dallas 2008, no pet.). Typically, retraction of the
argument or instruction from the court can cure any probable harm. Phillips, 288
S.W.3d at 883. Incurable jury argument “is that which strikes at the very core of the
judicial process.” Id. Examples of incurable improper jury arguments can include
appeals to racial prejudice; unsupported accusations of witness tampering by the
opposing party; and unsupported, extreme, and personal attacks on opposing parties
and witnesses. In re BCH Dev., LLC, 525 S.W.3d 920, 928 (Tex. App.—Dallas
2017, orig. proceeding).
“The party claiming incurable harm must persuade the court that, based on the
record as a whole, the offensive argument was so extreme that a ‘juror of ordinary
intelligence could have been persuaded by that argument to agree to a verdict
contrary to that to which he would have agreed but for such argument.’” Phillips,
288 S.W.3d at 883 (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (Tex. 1954)). In
other words, “[t]he complaining party must explain on appeal why opposing
counsel’s argument was incurable based on an evaluation of the whole case, from
voir dire to closing argument.” Arthur J. Gallagher & Co., 270 S.W.3d at 708; see
also Pope v. Gaffney, No. 04-03-00456-CV, 2004 WL 1732325, at *4 (Tex. App.—
San Antonio Aug. 4, 2004, no pet.) (mem. op.).
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C. Purported Misstatement of the Law Regarding Chapter 752
Oncor first argues that appellees’ counsel misstated the law that governs the
applicability of Chapter 752 when a “material” (here, a guy wire) is already within
six feet of an overhead line and a plaintiff causes that material to make contact with
a high voltage overhead line. This is based on the following portion of appellees’
counsel’s closing argument:
[W]hen Victor and Oscar arrived on July 12th, 2016, the guy wire was
already within 6 feet of the energized equipment, and they said “yes.”
Victor and Oscar didn’t move anything within 6 feet of the energized
source. It was built there.
And the reason that you have an insulator is because it’s so close
to that guy wire. And that’s why you need it to extend all the way past
the hot wires. That guy wire is always within 6 feet of that energized
equipment.
So when you answer [Question No. 3], performing a function or
activity that caused any part to be brought within 6 feet of a high voltage
overhead line, you’ll answer “no” because they didn’t cause anything.
When they got there, Oncor told you it was within 6 feet of the
energized source.
Oncor contends a reasonable juror could have been persuaded by this argument to
answer “No” to Question No. 3 when the juror would otherwise have answered
“Yes,” and, therefore, the argument probably resulted in the rendition of an improper
verdict. We resolve this portion of Oncor’s fifth issue against Oncor.
The only effect of appellees’ counsel’s closing argument, according to Oncor,
was to cause the jury to answer “No” to Question No. 3 rather than “Yes.” Question
No. 3, however, like Question No. 2, is a question that Oncor contends was necessary
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to establish the essential elements of its alleged Chapter 752 defense. As discussed
above, the jury’s adverse answers to Question No. 2 are supported by legally and
factually sufficient evidence, which makes a finding on Question No. 3 immaterial.
Thus, even if appellees’ counsel’s closing argument caused the jury to answer “No”
to Question No. 3 when it would have answered “Yes,” it was harmless. See TEX. R.
APP. P. 44.1(a). Accordingly, we overrule the first part of Oncor’s fifth issue.
D. Additional Theory of Liability
Oncor next contends that appellees’ counsel engaged in improper jury
argument in the following excerpt of his closing argument:
Now, I want to talk to you about some very important testimony and
why a verdict against Oncor is just. Oncor wants to mince his words
about this, but the testimony is clear. There are two scenarios in which
Oncor will discover hazards on utility poles. One, an employee happens
to pass by the hazard. Two, someone is seriously injured or killed.
That is not acceptable in our community. That is not acceptable
that a public utility, a corporation like Oncor, has no program to go find
hazards like insulators being too short, and they can sit there for 30
years until they electrocute someone. That is unacceptable.
Oncor contends this argument is improper for three reasons: (1) appellees’ counsel
asserted issues not supported by the evidence because negligence based on an
improper maintenance-and-inspection program must be established through expert
testimony, (2) appellees’ counsel misstated the law, and (3) appellees’ counsel
provided the jury with an improper basis upon which to impose liability against
Oncor.
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According to Oncor, the harm and prejudice caused by appellees’ counsel’s
comments were incurable because a reasonable juror could have been persuaded to
answer “Yes” to a broad-form negligence question based on an invalid theory of
liability when the juror otherwise would have answered “No.” Oncor contends that
it is impossible for Oncor or this Court to determine whether the jury found Oncor
liable based on the invalid theory that Oncor failed to properly maintain or inspect
its equipment. We resolve this portion of Oncor’s fifth issue against Oncor.
Assuming without deciding that appellees’ counsel’s argument was improper,
Oncor fails to explain how, based on an evaluation of the whole case, a jury
instruction to disregard the argument or withdrawal of the statement would not have
cured the alleged harm, if any. See TEX. R. APP. P. 38.1(i). Based on our review of
the record, we cannot conclude that appellees’ counsel’s argument is one of the rare
instances of improper argument that an instruction from the court or retraction of the
argument could not have removed its effect or prevented the members of the jury
from following their oaths with proper instructions from the trial court. See Arthur
J. Gallagher & Co., 270 S.W.3d at 708; Pope, 2004 WL 1732325, at *4. We overrule
the second part of Oncor’s fifth issue.
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CONCLUSION
Having overruled all five of Oncor’s issues, including all subparts, we affirm
the judgment of the trial court.
191331f.p05 /Leslie Osborne//
LESLIE OSBORNE
JUSTICE
Schenck, J., Dissenting
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
ONCOR ELECTRIC DELIVERY On Appeal from the 160th Judicial
COMPANY LLC, Appellant District Court, Dallas County, Texas
Trial Court Cause No. DC-17-03500.
No. 05-19-01331-CV V. Opinion delivered by Justice
Osborne. Justices Schenck and
VICTOR QUINTANILLA, OSCAR Partida-Kipness participating.
INTERIANO ROSALES, AND
ACCIDENT FUND INSURANCE
COMPANY OF AMERICA,
Appellees
In accordance with this Court’s opinion of this date, the judgment of the trial
court is AFFIRMED.
It is ORDERED that appellees Victor Quintanilla, Oscar Interiano Rosales
and Accident Fund Insurance Company of America recover their costs of this appeal
and the full amount of the trial court’s judgment from appellant Oncor Electric
Delivery Company LLC and from Aspen American Insurance Company as surety
on appellant’s supersedeas bond.
Judgment entered this 17th day of October, 2022.
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