Gorrell v. Texas Utilities Electric Co.
915 S.W.2d 55
Tex. App.
1996
Check Treatment

*3 DAY, witness, deposition excerpts Before BRIGHAM and from Chris- LIVINGSTON, topher JJ. Denney, one of the Haltom Po- detectives, Scott, Department

lice and Kent OPINION principal engineering analyst with TU Electric. BRIGHAM, Justice. Gorrell, below, appeals

Claudia hearing Summary At the on the Motion for summary judgment granted Judgment, in favor of de- Gorrell received TU Electric’s ob- fendant, Company jections Texas Utilities Electric to Michie’s affidavit. After the hear- (“TU Electric”). ing, on behalf sued the trial court entered an sustain- order Christy Eisen, per- objections who suffered severe and to and an the affidavit injuries in summary judg- manent granting collisionbetween the car order Electric’s riding light pole which she was ment. filed a for New Gorrell then Motion or, Reconsideration, by agree Alternatively, owned TU Electric. Because we Trial ruling claiming court’s trial that TU Electric that the court erred in sustain- objections was able to establish as a the Michie matter law that TU Electric’s to Eisen, utility company copy owed no to also affidavit. Gorrell attached a Nunc Pro Tunc entered Judgment we affirm. mounted against Joynt family practicable, with the luminaire lawsuit and their near curb or shoulder. over or company. The trial court then insurance denied Gorrell’s motion. did not consider claims that Scott travelling public’s safety deciding what type pole to because he did not install ONE POINT OF ERROR job. to Scott be relevant his consider error, point of claims In her first acknowledged pole closer that the granting TU Elec- the trial court erred in road, likely the more it is be struck Judgment. Summary tric’s Motion She can be leaving car and that if a road issue of material fact exists claims placed road still farther from the design as to whether the and/or *4 Finally, adequately, it should be moved. light of proximate the standard was a cause was not aware of Scott testified that he damages. injury Eisen’s and Gorrell also use guidelines on when to TU Electric question claims a fact as to there is whether breakaway pole. placed light TU Electric the standard a rea- asserting light that standard’s In from road and as to the sonable distance inju- placement of Eisen’s cause-in-fact foreseeability of a collision. ries, undisputed it is that Gorrell avers that deposition relies on Scott’s testimo- pole, causing her vehicle collided with ny responsible that Electric was for de- TU light injuries. had the Gorrell contends that sign pole and of installation made three further been located feet standard nothing claims that basis this suit. Gorrell collision, roadway, from the and Eisen’s person respon- shows that the Scott’s files injuries, would not have occurred. lighting system designing sible for the street also the collision was foresee- maintains that placement knew what the and design of that able and right-of-way parameters of the were. Gor- im- light a cause-in-fact of standard was that, although accepts rell it would be asserts injuries. severity pact and the of Eisen’s policies for a sur- able TU Electric’s are material fact She concludes that there veyor actually poles how far determine light stan- questions regarding whether the curb, no going were to be from the there is from placed a reasonable distance dard was anyone ac- indication from TU Electric that roadway the collision was and whether survey tually staking before reviewed foreseeable. highlights Scott’s testi- installation. negated two contends that it TU Electric any- mony that was no indication there that any negligence claim: of the elements of actually Electric one TU examined arguing In that it had duty and causation. approved light location. standard’s light further no to locate the standard testimony breakaway points Gorrell also to Scott’s or to install a from the leaving base, utility Joynt’s that vehicle that he could envision a driver avers collision, extraordinary fashion being in an might that a car hit was driven road avoid road, light pole it made contact with light if the vehicle left the standard circumstances, it cannot be injured if that under such people and that in the car could be Further, liable. found the car struck a standard. Transportation Electric’s Gorrell cites TU proximate notes that Electric then Handbook, Engineering which and Traffic foresee- consists of cause-in-fact cause danger light poles acknowledges the that element is ability and asserts neither breakaway poles when suggests the use of lawsuit. TU Electric present in the instant

possible: negligent says Joynt’s driving that both operation it was and that supports road- and unlawful Luminaire are hazardous injuries. and, which caused Eisen’s objects safety, the number automobile side that law does they TU Electric contends minimized should be should be leaving Further, someone breakaway require one to foresee strategically located. driving jumping the curb applicable. the road after supports be where should used Hen- adjacent, land and cites unpáved Supports as far back as should set 458, (Tex. Todora, ability. dricks v. v. Allied McClure Stores of n.r.e.) 1986, Inc., (Tex.1980). App. (op. ref'd —Dallas Davis, reh’g); Watkins A is entitled to sum defendant (Tex.Civ.App. writ refd — Dallas mary judgment summary judgment if the n.r.e.). argues TU Electric establishes, law, evidence a matter posed properly no risk to a driver plaintiffs at least one cause of element using placement calls the Centeq Realty, action cannot be established. prior standard a and remote cause (Tex. Siegler, Inc. v. injuries. Eisen’s 1995); Store, Rosas v. Buddies Food summary judgment accomplish To appeal issue on is whether the movant met this, present the defendant-movant must summary judgment burden establish summary negates judgment evidence that that no issue of material fact plaintiffs element claim. Once this exists and that movant judg is entitled to presented, the burden shifts to ment as a of law. matter See Tex.R.Civ.P. put competent controvert 166a(e); Corp., Cate v. Dover proves evidence that the existence of a *5 (Tex.1990); City 562 v. Houston Clear genuine regard issue of material fact with to Auth., (Tex. 671, Creek Basin 589 S.W.2d 678 challenged by the element defendant. 1979). proof movant, The burden is on Inc., Centeq Realty 899 S.W.2d at Comm’n, Acker v. Texas Water 790 S.W.2d both Although Gorrell and TU Elec 299, (Tex.1990), 301-02 and all doubts about tric state in briefs their that the issue before the existence of a issue to material this court impression, is one first Cate, against fact are resolved movant. 790 Supreme recently Court addressed 562; at Am. S.W.2d Great Reserve Ins. Co. v. rely this issue under similar facts. on its We Co., Plumbing Supply San Antonio 391 Garza, holding City McAllen v. De La (Tex.1965). 41, Therefore, 47 we (Tex.1995) 898 S.W.2d find that 809 must view the evidence and its reasonable duty Electric did not owe a to Eisen under inferences in the most favorable to the these facts. nonmovant. Id. Garza, In De Supreme La Court was deciding In whether is a ma there upon city, called to determine whether as precluding summary terial fact judg issue pit abutting highway, owner “caliche” ment, all conflicts will duty pit had a make the or to safe warn disregarded evidence favorable to traveling those who were not with reasonable the nonmovant accepted will be as true. upon adjoining highway. care After a Montgomery 309, Kennedy, v. review section 368 of the First and Second (Tex.1984); Farley 311 v. Prudential Ins. Torts, Supreme Restatement of Court Co., (Tex.1972). 176, 178 Evi concluded that where an artificial condition is dence that favors movant’s will existing roadway created so near an that it not be considered unless it is uncontroverted. poses an unreasonable risk to acciden- those Am., Great 391 S.W.2d at 47. tally brought contact into with it travel- while care, negligence plaintiff In ing duty with reasonable is owed to: (2) legal duty traveling must establish the highway; existence of a those or part foreseeably of the defendant. Abalos v. who it in See those deviate from 627, ordinary Dev. (citing Oil Co. travel. Id. course of only duty § Not must be es 368 cmt. (Second) Of Restatement ToRts (1965)). tablished, g) but the must also show the De La Garza court then held injury not in breached and that the that a traveler the result of the breach. Dion v. Ford Mo travel the deviation from the road is unless Co., 302, (Tex.App.— finding tor a normal incident travel. Id. denied). Eastland writ Proximate that the of McAllen did not owe Garza, Supreme cause consists of in De La cause-in-faet and foresee- to motorist plenary power. She claims from a court still had numerous instances reviewed the trial to overrule her jurisdictions from was error for court variety of where deviations found not to constitute motion. were normal incidents of a trial court The test whether § 368. have studied We Of ToRts act discretion is whether its has abused its although examples, do re- these we v. arbitrary or Downer unreasonable. here, produce we find them instructive. them Inc., Aquamarine Operators, investigated Denney, police officer who denied, (Tex.1985), 241-42 cert. 476 U.S. collision, Joynt failed to concluded (1986). 90 L.Ed.2d S.Ct. apply brakes and that the automobile left to to affida neglected attach Michie’s prop- Denney that a car the road. asserted copies of the vit sworn or certified extrane erly driving paved roadway would on the to in the affidavit ous documents referred mak- passed standard without have 166a(f) required Rule of the itself contact, ing standard was clear- Procedure. This failure Texas Rules of Civil visible, Joynt car ly kept her and that had constituted a defect the substance road, the have oc- collision never affidavit, required was not and the court testimony undisputed. Re- curred. His offering give party chance deliberately gardless Joynt swerved whether Paso Health Care amend. Ceballos El striking thought she was enter- avoid a car (Tex.App. Sys., 881 S.W.2d — El simply or left the due her lane denied). note that the Paso We inattention, agree we to a moment’s text of Michie’s additions to the substantive not travel- finding trial court’s that she was affidavit, as the sworn certified as well care with reasonable attachments, all at the time were in existence *6 ordinary in the nor her deviation was summary judgment filed for was the motion duty no of Because TU Electric owed the should have been discovered before circumstances, summary judg- these hearing. within its dis The trial court was one proper. Point of error is ment was new, refusing consider cretion in overruled. the Mo affidavit to reconsider amended Summary Judgment. for See Methodist tion ERROR POINT OF TWO Corporate v. Hospitals Dallas Communi of asserts that trial Gorrell next cators, Inc., (Tex.App.— 883 806 S.W.2d overruling in its court abused discretion denied); First writ Martin v. Dallas or, Alternatively, New Trial for Motion for Bank, Worth, 482, 488- Rep. Fort opportu she had no denied). Reconsideration because (Tex.App. Worth — Fort nity to amend Michie’s affidavit. of two is overruled. Point error filed its Motion for that TU Electric *7 damage highway occurred when unsupported fell wall on and killed a motorist in a passing car.

While the or SHRIMP FARM could TAIWAN VILLAGE inherently itself not be deemed be a ASSOCIATION, dangerous condition, INC. and Justin appear Hsu, Appellants, there is a question factual created as to driver, whether the under these facts circumstances, from deviated U.S.A. SHRIMP FARM DEVELOPMENT, According g, to comment section INC., Appellee. adopted of ToRts No. 13-94-156-CV. in the De La opinion: Garza duty does [The arise] not where the travel- Appeals intentionally er deviates Corpus Christi. purpose for a reasonably not connected it_ Jan. 1996. with travel Sec- Likewise this application tion has no where the deviation Rehearing Overruled Feb. reasonably is one not anticipated, purpose normally is for a connected travel, as where the traveler runs of the highway pursued by

off crimi- notes court affirmed. judgment The of 10, 1994, Judgment January Summary on affidavit response with Michie’s and Gorrell’s LIVINGSTON, J., opinion. with concurs 29,1994. hearing The on filed on March LIVINGSTON, Justice, concurring. Summary Judgment was held Motion 12, 1994, this hear August and was at opinion I in result of the court’s concur asserts, received a ing, that she first respectfully disagree opinion its with but objections to Michie’s copy of TU Electric’s law, finds, as a matter the extent it 14, 1994, the trial September affidavit. On duty owed no TU Electric utility’s sustaining court entered order of this and circumstances under the facts objections the order to Michie’s affidavit and v. City I McAllen the case of case. believe judgment. granting summary (Tex.1995) Garza, La De De facts. The distinguishable under these argues that she should have duty to opinion discusses when the La Garza the affidavit before required to amend been The highway it, travelling on a exists. says a driver ruling on and she she the trial court’s prior deci- from the main opinion in an at- deviates amended affidavit filed Michie’s Lee, sion, v. Tex. City Fort Worth objections the trial cure while tempt to seeking wMch found no nal his life. The distinction is ... by adjacent was owed an those normal landowner because between which are incidents by condition and those created the landowner was travel which are not. prior in existence to the time the street was § (Second) 368 cmt. Restatement of ToRts Instead, constructed and dedicated. the De (1965). g Supreme applying in La Garza court focuses section 368 of the held, traveling this standard “He was not of ToRts which the with reasonable care nor See, Supreme Texas Court has followed. ordinary in was his deviation course of Kraus, e.g.,Alamo Nat’l Bank Garza, De La travel.” 898 S.W.2d at 812. 911 n. 3 (Presumably, the evidence of blood alco- hol of driver and fact that he fell summary I believe that judgment mo- asleep weighed heavily wheel summary judgment tion and evidence could court.) create factual issue the trier of facts. Here, the facts fall somewhere in between Here, presented if the nonmovant some City those Fort Worth and Kraus. traveling evidence that driver was with reasonable care and that deviation was in Worth, City In the Fort the excavation travel, course of the movant’s prior existed to the creation of the street summary judgment motion for would have apparently inherently dangerous an con- faded. Evidence that favors movant’s scenario, dition and of itself. Under that not be will considered unless it is Supreme city, Court held the uncontroverted. Great Am. Reserve Ins. Co. charged which with maintaining the Co., Plumbing Supply v. San Antonio roadway, injured owed a to an third (Tex.1965). However, since party since the condition existed summary judgment there is no Worth, was built. Fort showing the record the non-movant’s “rea- at 957. or that sonableness” her “deviation” was nor- Kraus, dangerous condition was mal, I concur the result. adjacent created owner and dan- gerous condition itself created the hazard injured which person highway.