567 S.W.3d 383
Tex. App.2018Background
- AEP contracted with T&D to perform utility pole removal/maintenance; Techserv contracted to inspect T&D’s work for AEP.
- T&D removed a stub utility pole from a right-of-way easement on Arredondo’s property, left the pole and an unfilled hole; Arredondo later tripped in the hole while mowing and was injured.
- Arredondo sued AEP, T&D, and Techserv for negligence, negligence per se, and gross negligence; all three defendants moved for traditional and no-evidence summary judgment and the trial court granted them.
- The court of appeals reviews summary judgment de novo and analyzes whether Arredondo’s claims sound in ordinary negligence (as creator of a dangerous condition) or premises liability (as possessor/controller of land).
- Court concluded T&D (the contractor who created the hole) can be sued in ordinary negligence for creating the dangerous condition, but T&D owed no duty as to negligence per se and Arredondo failed to raise gross-negligence objective element against T&D.
- Court held AEP (the utility/contracting owner) retained a contractual right to control T&D’s work as a matter of law, creating a duty; summary judgment for AEP was reversed and remanded. Summary judgment for Techserv affirmed because Arredondo failed to include responsive summary-judgment materials in the appellate record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Arredondo’s claim against T&D sounds in ordinary negligence or premises liability | Arredondo: T&D created the dangerous condition (hole) and thus ordinary negligence applies | T&D: Injuries from a property condition sound in premises liability | Held: Ordinary negligence applies because T&D created the dangerous condition as AEP’s contractor and lacked possession/control when injury occurred |
| Whether T&D owed a legal duty to Arredondo to fill or warn of the hole | Arredondo: contractual terms and common-law duty require contractor to make safe or warn | T&D: no duty; claim is premises liability only | Held: As a matter of law T&D owed a duty to warn or make safe the hole it created; summary judgment on negligence reversed and remanded |
| Whether Arredondo raised negligence per se and gross negligence claims against T&D | Arredondo: invoked safety statutes and evidence of dangerous utility practices | T&D: no evidence of statutory violation applicable to plaintiff; no evidence of extreme risk or subjective awareness | Held: Negligence per se against T&D fails (statute cited protects employees); gross negligence fails for lack of evidence of objective "extreme risk"; summary judgment affirmed on those claims |
| Whether AEP owed a duty based on contractual right to control T&D and whether breach/proximate cause were raised | Arredondo: AEP retained contractual right to control methods and required premises restoration, so AEP had a duty and breached it | AEP: did not retain/control work methods; no duty; removing a stub pole not inherently dangerous | Held: Court finds AEP had a contractual right to control work details related to restoration; summary judgment for AEP reversed and remanded on negligence, negligence per se, and gross negligence |
Key Cases Cited
- Occidental Chem. Corp. v. Jenkins, 478 S.W.3d 640 (Tex. 2016) (distinguishes ordinary negligence vs premises liability; actor who creates dangerous condition can be liable after relinquishing control)
- Strakos v. Gehring, 360 S.W.2d 787 (Tex. 1962) (contractor liable under negligence for injuries from a hole it created and left unguarded)
- United Scaffolding, Inc. v. Levine, 537 S.W.3d 463 (Tex. 2017) (possession/control can determine premises-liability treatment)
- Dow Chem. Co. v. Bright, 89 S.W.3d 602 (Tex. 2002) (contractual right to control, not actual exercise, can create duty)
- Koch Ref. Co. v. Chapa, 11 S.W.3d 153 (Tex. 1999) (employer liability requires retention of sufficient control over manner of work)
- Lee Lewis Constr., Inc. v. Harrison, 70 S.W.3d 778 (Tex. 2001) (elements of gross negligence: extreme risk and actual awareness)
- U-Haul Int’l, Inc. v. Waldrip, 380 S.W.3d 118 (Tex. 2012) (clarifies objective component of gross negligence as likelihood of serious injury)
- Fifth Club, Inc. v. Ramirez, 196 S.W.3d 788 (Tex. 2006) (employer may be vicariously liable if retaining some control over contractor’s work)