612 S.W.3d 289
Tex.2020Background
- AEP contracted with T&D Solutions as an independent contractor to perform underground distribution and storm-restoration work; TechServ inspected contractors’ work.
- AEP issued a work order directing T&D to remove a stub pole in a municipal right-of-way adjacent to Marta Arredondo’s property; T&D certified the job complete on December 2, 2013; TechServ certified on December 9, 2013.
- On July 30, 2014, Arredondo fell into a ~2.5-foot hole at the pole site while mowing and was injured; she alleges the hole resulted from T&D’s pole removal and inadequate restoration.
- Arredondo sued AEP, T&D, and TechServ for negligence, negligence per se, and gross negligence; the trial court granted summary judgment for all defendants.
- The court of appeals affirmed summary judgment for TechServ and most statutory/gross-negligence claims, but reversed summary judgment as to T&D’s negligence and all claims against AEP; the Texas Supreme Court granted review.
- The Supreme Court held (1) a fact issue exists whether T&D properly filled the hole (so summary judgment for T&D on negligence was improper), and (2) AEP owed no duty to Arredondo because it did not retain control over the operative means and methods and the work was not inherently dangerous; judgment for AEP was rendered and the T&D negligence claim was remanded.
Issues
| Issue | Arredondo's Argument | AEP/T&D's Argument | Held |
|---|---|---|---|
| Whether T&D breached a duty by failing to properly fill the pole hole (summary judgment) | Hole’s existence, size, and location support inference T&D failed to fill or restore the site | Foreman’s deposition says crew filled and tamped hole immediately; thus no breach as a matter of law | Fact issue exists; conflicting evidence precludes summary judgment for T&D on negligence |
| Whether AEP owed a duty based on a contractual right to control T&D’s work | Contract provisions (on-site representative; restore premises immediately) gave AEP control over means/methods | Contract designated T&D an independent contractor and provisions do not prescribe means/methods; AEP lacked right to control operative details | No duty: contract did not confer control over means, methods, or details that caused injury |
| Whether AEP owed a nondelegable duty because the work was inherently dangerous | Electrical/utility work is inherently dangerous, giving AEP a nondelegable duty | Removing a stub pole (no live wires) and restoring property is not inherently dangerous; danger stems from negligent performance | No nondelegable duty: the work here was not inherently dangerous in its normal, nondefective state |
| Whether a statutory duty (negligence per se) bars AEP’s summary judgment | Arredondo asserted negligence per se as alternative theory | AEP argued it challenged duty in its no-evidence motion and no statute was cited by Arredondo in response | Arredondo failed to identify a statute imposing a duty on AEP in response; summary judgment on negligence per se for AEP proper |
Key Cases Cited
- Redinger v. Living, Inc., 689 S.W.2d 415 (Tex. 1985) (adopted Restatement §414: employer liable if it retains control over part of contractor’s work)
- Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (duty arises from contractual right of control, not actual exercise)
- Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006) (general rule: employer not liable for independent contractor absent retained control or nondelegable duty)
- Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) (retained control must relate to condition/activity that caused injury)
- Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649 (Tex. 2007) (inherently dangerous-activity doctrine is narrow; danger must stem from activity itself)
- Victoria Elec. Co-op, Inc. v. Williams, 100 S.W.3d 323 (Tex. App.—San Antonio 2002, pet. denied) (requiring superintendent on site does not by itself create a right of control)
- Hillis v. McCall, 602 S.W.3d 436 (Tex. 2020) (summary-judgment standard and burdens)
- IHS Cedars Treatment Ctr. of DeSoto, Tex., Inc. v. Mason, 143 S.W.3d 794 (Tex. 2004) (elements of negligence: duty, breach, causation, damages)
- Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016) (premises liability is a special form of negligence)