622 S.W.3d 771
Tex.2021Background
- Los Compadres owned a four-unit condominium site on South Padre Island, hired Torres as project manager/superintendent, and subcontracted Paredes to install concrete pilings; Valdez and Teran worked for Paredes.
- A high‑voltage AEP power line ran along the back property line; a retaining wall and added fill raised the ground so long rebar could reach the line.
- Torres knew the line was close, told Paredes he would contact AEP, then instructed Paredes to proceed even though the line remained energized.
- While inserting 25‑foot rebar into wet concrete, the top contacted the energized line; Valdez and Teran were shocked and burned; plaintiffs sued Paredes, AEP, and Los Compadres.
- A jury found Los Compadres negligent (ordinary negligence and premises liability—retained control), allocated 50% fault to it, and awarded damages; the trial court and court of appeals entered/affirmed judgment; the Texas Supreme Court affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Agency / vicarious liability | Torres was Los Compadres' agent/employee; evidence conclusively established agency so no jury finding required | Plaintiffs failed to obtain jury finding on agency; thus respondeat superior cannot be imposed | Los Compadres waived the jury‑finding objection; alternatively, evidence conclusively established Torres was agent and controlled the work, so vicarious liability stands |
| Applicability of Tex. Civ. Prac. & Rem. Code ch. 95 ("same improvement" requirement) | Chapter 95 does not apply because the power line was a condition of the workplace generally, not of the piling improvement | Chapter 95 applies whenever the dangerous condition is of the improvement on which the contractor was working | Chapter 95 applies here: because the energized line was in close proximity it constituted a condition of the piling improvement being constructed |
| Actual‑knowledge requirement under Chapter 95 | Plaintiffs: although no jury finding, evidence conclusively established actual knowledge (Torres knew the line was energized) | Defendant: trial court erred by allowing a "knew or reasonably should have known" instruction instead of requiring actual knowledge | Evidence conclusively established actual knowledge (Torres knew and his knowledge imputes to Los Compadres), so lack of jury finding is not fatal |
| Open‑and‑obvious duty and causation | Plaintiffs: presence of the line was known but its energized status was not obvious; Los Compadres' failure to warn/de‑energize was a substantial factor in causing injuries | Defendant: the hazard (power line) was open and obvious; causation is speculative | Presence of the line was open and obvious, but whether it was energized was not as a matter of law; sufficient evidence supports proximate causation and liability |
Key Cases Cited
- Ineos USA, LLC v. Elmgren, 505 S.W.3d 555 (Tex. 2016) (chapter 95 applies only when injury arises from condition/use of the same improvement on which contractor works)
- Abutahoun v. Dow Chem. Co., 463 S.W.3d 42 (Tex. 2015) (definition of "improvement" and "condition")
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (standard for when evidence is conclusively established)
- Limestone Prods. Distrib., Inc. v. McNamara, 71 S.W.3d 308 (Tex. 2002) (right‑to‑control test for employee status)
- La Sara Grain Co. v. First Nat'l Bank of Mercedes, 673 S.W.2d 558 (Tex. 1984) (imputing agent's knowledge to principal)
- USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479 (Tex. 2018) (preserving jury‑answer conflict objections and remand considerations)
- Int'l Bus. Machs. Corp. v. Lufkin Indus., LLC, 573 S.W.3d 224 (Tex. 2019) (explains "conclusively established" evidentiary standard)
- Bustamante v. Ponte, 529 S.W.3d 447 (Tex. 2017) (substantial‑factor test for proximate cause)