Erwin v. Guadalupe Val. Elec. Co-op.
| Decision Date | 23 January 1974 |
| Docket Number | No. 15250,A,CO-O,15250 |
| Citation | 505 S.W.2d 353 |
| Parties | Joyce ERWIN et al., Appellants, v. GUADALUPE VALLEY ELECTRICppellee. |
| Court | Texas Court of Appeals |
John F. Morehead, Gibbons & Spivey, Austin, for appellants.
Ben F. Vaughan, III, Austin, for appellee.
This is a suit to recover for the death of Ruel Erwin, Jr., who was electrocuted when a football goalpost he and others were constructing came into contact with a 14,400--volt distribution line maintained by defendant, Guadalupe Valley Electric Co-op.
Plaintiffs, the persons entitled to sue for damages resulting from such death under the provisions of Article 4671 Vernon's Tex.Rev.Civ .Stat.Ann., are his widow, Joyce Erwin; his surviving children, Eric Lee Erwin and Elise Ann Erwin; and his surviving parents, Mr. and Mrs. Ruel Erwin.
The case was submitted to the jury on a negligence theory. The judgment in favor of defendant, from which plaintiffs appeal, was based on jury findings of no negligence and no damages.
Plaintiffs first complain of the action of the trial court in sustaining defendant's special exceptions to the portion of plaintiffs' pleadings in which they sought to recover under the theory of strict liability, or products liability. The trial court struck the allegations relating to this theory from plaintiffs' pleadings.
On the date of his death, August 11, 1971, decedent was employed as a teacher and football coach by the Navarro Independent School District; and it had been decided that the school would erect its own goalposts for the coming fall football season. The construction was undertaken near the school's industrial shop building. Several pieces of iron pipe were joined to form an 'H,' the shape of goalposts. After these sections of pipe had been welded on one side, it became necessary to turn the 'H' over so that the other side could be welded. To accomplish this the deceased and five others pulled the goalpost, which was too heavy to handle easily, into a ditch beside a service road next to the shop. With two legs of the 'H' resting against one of the walls of the ditch, and with three men grasping each of the two other extremities of the legs, the six began 'walking' the 'H' into an upright position. When the goalpost was in a position approximately perpendicular to the ground, the top portion of one of the legs came into contact with the transmission line which had been strung across the schoolgrounds by defendant. Decedent and one other person were killed, and the remaining four men were burned in varying degrees.
Paragraph IV of plaintiffs' petition alleged that plaintiffs' claim was based on Restatement 2d, Torts, Section 402A. The petition further alleged: (1) The '. . . electrical product in question in this case . . .' was defective in that the '. . . wires were too low.'
(2) The product was also defective because defendant failed to warn the public in general, and the six men who were moving the goalpost in particular, of the dangers involved in '. . . coming within the zone of danger of the product.' (3) These defects created an unreasonable risk of harm to '. . . those within the zone of danger of the product.' (4) These defects were a producing cause of the death of Ruel Erwin, Jr.
These allegations were followed by others setting out a cause of action based on negligence.
The special exception to Paragraph IV, which was sustained by the trial court, asserted that the product liability theory is inapplicable to the state of facts alleged by plaintiffs, pointing out that plaintiffs' complaint related to the height of the wires, which were not sold, singly or as a part of any other item, and that deceased was not alleged to have been a purchaser, consumer, or user of the wire.
In determining whether plaintiffs' petition stated a cause of action under the theory of strict liability or products liability, we must, of course, assume that the allegations in the petition are true. That is, it must be assumed that the wires were too low and that defendant failed to warn of the danger resulting from such condition. We also assume that the height of the wires and the failure to warn, or either of these facts, created an unreasonable risk of harm.
The petition does not allege the existence of any defect in the electrical current, other than the fact that the transmission line through which the current passed was not placed high enough above the ground. We agree, of course, that the placing of a transmission line used as a conduit for high-voltage electrical current at a place where is it reasonably foreseeable that people may come into contract with the line and suffer injury will support a finding of the creation of an unreasonably dangerous condition. But in such a case, the risk of injury does not arise from defective manufacture or assembly of the electricity itself, or from a defective design. The risk arises solely from the location of the product. The situation in this case can be likened to one in which a person, as the result of stepping on a roller skate on a sidewalk, slips, falls and injures himself. In such a case it cannot be persuasively argued that the injury was the result of a defect in the skate. The danger resulted from the fact that the skate was placed on the sidewalk, and not from the fact that the skate was defectively manufactured. Nor can it be argued in such a case that the placing of the skate in a position where it created an unreasonable risk of danger made the skate itself defective. Liability in such a case would have to be based on negligence in placing the skate, or allowing it to remain, on the sidewalk.
We realize, of course, that a high tension transmission wire is an extremely dangerous thing, not only because the current is deadly, but also...
To continue reading
Request your trial
-
Dubin v. Michael Reese Hospital and Medical Center
...Co. (1969), 44 Wis.2d 571, 172 N.W.2d 161; Wood v. Public Service Co. (1974), 114 N.H. 182, 317 A.2d 576; Erwin v. Guadalupe Valley Electric Co-Op (Tex.Civ.App.1974), 505 S.W.2d 353; Williams v. Detroit Edison Co. (1975), 63 Mich.App. 559, 234 N.W.2d 702; and Petroski v. Northern Indiana Pu......
-
Smith v. Home Light and Power Co.
...Service Co., 114 N.H. 182, 317 A.2d 576, 579-80 (1974); Farina, 438 N.Y.S.2d 645; Schriner, 501 A.2d 1128; Erwin v. Guadalupe Valley Electric Co-op, 505 S.W.2d 353 (Tex.Civ.App.1974); Ransome, 275 N.W.2d 641; Kemp, 172 N.W.2d 161. See generally 3 F. Harper, F. James & O. Gray, The Law of To......
-
Houston Lighting & Power Co. v. Reynolds
...Texas courts of appeals have addressed the question and reached conflicting results. In Erwin v. Guadalupe Valley Elec. Co-op., 505 S.W.2d 353, 355-56 (Tex.Civ.App.--San Antonio 1974, writ ref'd n.r.e.), the court assumed without discussion that electricity was a product. In Navarro County ......
-
Hills v. Ozark Border Elec. Co-op., 14059
...717 (1955). See also Lamar Electric Membership Corp. v. Carroll, 89 Ga.App. 440, 79 S.E.2d 832 (1953); Erwin v. Guadalupe Valley Electric Co-op., 505 S.W.2d 353 (Tex.Civ.App.1974). Defendant relies upon Katz v. Slade, 460 S.W.2d 608 (Mo.1970), to support the position stated in its brief tha......