Oncor Electric Delivery Company, LLC v. Marco Murillo
449 S.W.3d 583
Tex. App.2014Background
- Demolition/redevelopment of an apartment tract required Oncor to remove transformers located on an electrical-easement pad; Next Block (owner) contracted with Oncor for facilities relocation/removal, with Scott Shipp as project contact.
- AAA (Murillo’s employer) was contracted to demolish and had salvage rights; contractors were told transformers belonged to Oncor and were to be left alone, but AAA crews nonetheless removed cable and salvaged copper.
- Oncor disconnected temporary meters and closed the temporary account in mid-June 2007 but did not remove or de-energize the Pad B transformers; Oncor conceded it had not de-energized Pad B.
- On July 25, 2007 Murillo (AAA) reached into a transformer box on Pad B to disconnect a copper cable and suffered severe electrical injuries from an energized transformer; no Oncor employees were at the immediate site that day.
- At trial the court submitted a broad-form general negligence (negligent-activity) charge; the jury found Oncor 60% liable. Oncor appealed arguing the claim against it was premises liability (not general negligence) and that the general negligence submission was improper. The en banc court reversed and rendered judgment that Murillo take nothing against Oncor.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claim against Oncor could be submitted as general negligence (negligent activity) rather than premises defect | Murillo: Oncor negligently failed to de-energize/stop distribution to the transformer during the utility-removal process, an ongoing activity that proximately caused the injury | Oncor: As easement holder/utility provider its liability (if any) is limited to premises-defect duties (warning/repair); general negligence submission required predicate facts (control, knowledge) the charge omitted | Court: The evidence did not show contemporaneous negligent activity by Oncor causing the injury; the energized transformer was a premises condition -> judgment against Oncor on general negligence was erroneous; reverse and render for Oncor |
| Whether Oncor was a “possessor/occupier” for premises-liability duty purposes | Murillo: Oncor controlled distribution of electricity on the easement and thus could be liable for activities it undertook affecting safety | Oncor: Easement-holder non-possessory status limits duty; if occupier, duty is premises-based (warn/repair), not broad negligence | Court: Oncor, as easement holder who controlled the transformers, qualified as an occupier for tort-duty analysis; that makes premises-liability framework applicable |
| Whether Oncor engaged in contemporaneous negligent activity or exercised control over Murillo’s work | Murillo: Oncor retained control over electricity distribution and had ongoing involvement (work scheduling, crews onsite previously); failing to de-energize when it removed meters was an actionable activity | Oncor: No Oncor supervision or control of AAA’s salvage/demolition; Oncor crews were not present the day of injury and did not direct Murillo; therefore no control or contemporaneous act causing injury | Court: No evidence of Oncor controlling the details of Murillo’s work or of contemporaneous negligent acts by Oncor at the time of injury; control over power distribution is not control of demolition/salvage work for negligent-activity liability |
| Proper disposition when a broad negligence submission omits premises-defect predicates | Murillo: resisted premises-defect submission; opposed defendants’ proposed predicate questions (invitee/licensee/trespasser) | Oncor: charge omitted essential predicate elements for premises defect; judgment on broad negligent-activity question is immaterial without premise predicates | Court: Under Olivo/Torrington line, where omitted predicate facts control duty, the error is material; here the general negligence submission could not support recovery against Oncor -> render judgment for Oncor |
Key Cases Cited
- Marcus Cable Assocs. v. Krohn, 90 S.W.3d 697 (Tex. 2002) (easement is a non-possessory property interest but tort duty depends on possession/control for tort purposes)
- County of Cameron v. Brown, 80 S.W.3d 549 (Tex. 2002) (occupier may be liable if it assumed control/responsibility for the part of premises creating the danger)
- Gen. Elec. Co. v. Moritz, 257 S.W.3d 211 (Tex. 2008) (distinguishing negligent-activity liability from premises-defect liability; duty tied to retained/control over contractor work)
- Clayton W. Williams, Jr., Inc. v. Olivo, 952 S.W.2d 523 (Tex. 1997) (a premises-defect case requires jury findings on Corbin elements; a general negligence question cannot substitute for those predicate findings)
- Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762 (Tex. 2010) (negligent activity = contemporaneous malfeasance; premises liability = nonfeasance/failure to remedy or warn)
- Keetch v. Kroger Co., 845 S.W.2d 262 (Tex. 1992) (where negligent activity ended before injury, claim is premises defect, not negligent activity)
- Torrington Co. v. Stutzman, 46 S.W.3d 829 (Tex. 2000) (distinguishing defective-but-material submissions; when duty depends on predicate facts, omission can make a broad negligence question immaterial)
- Houston Lighting & Power Co. v. Brooks, 336 S.W.2d 603 (Tex. 1960) (utility absent contemporaneous conduct or specific control had no broad duty to prevent construction-related electrical contact)